The Neverending (Catastrophic) Story: Catastrophic Claimants and the O.C.G.A. §34-9-104 Statute of Limitation

The Georgia Court of Appeals recently issued an opinion that could significantly impact indemnity exposure where a claim is (or has been) accepted as catastrophic. In Barnes v. Roseburg Forest Products Co., Case Number A15A0405 decided July 16, 2015, the Court of Appeals considered a claimant’s appeal seeking indemnity benefits under two alternative theories: (1) as a recommencement of TTD benefits related to a 1993 catastrophic claim and not barred by the statute of limitation set forth in O.C.G.A. §34-9-104, despite the fact that indemnity benefits had not been paid for more than two years; and (2) as a fictional new accident not barred by the statute of limitation set forth in O.C.G.A. §34-9-82. Ultimately, the Court of Appeals agreed with the claimant’s arguments in both instances, remanding the case back to the State Board of Workers’ Compensation for consideration of those issues.

The Court of Appeals agreed with the claimant’s argument that O.C.G.A. §34-9-261 must be interpreted to allow a claimant whose injury has been accepted as catastrophic the right to seek reinstatement of benefits where he experiences a change in condition as described in O.C.G.A. §34-9-104(a)(1), even if that change occurs more than two years after the last benefits payment was made. The Court conceded that the Workers’ Compensation Act did not appear to contemplate the claimant’s situation in Barnes – i.e., where a catastrophic claimant returns to work with significant limitations and tries to resume benefits more than two years after the last benefit payment was issued. Nonetheless, the Court found that the legislature intended to treat catastrophic injuries differently from non-catastrophic injuries and relied on the language of O.C.G.A. §34-9-261, which states that while TTD benefits shall be payable for a maximum of 400 weeks from the date of injury, “in the event of a catastrophic injury . . . the weekly benefit under this Code Section shall be paid until such time as the employee undergoes a change in condition for the better as provided in [O.C.G.A. §34-9-104(a)(1)].”

Notably, the Court pointed out that as the claimant’s injury’s catastrophic designation had never been removed, he was able to pursue a recommencement of TTD benefits under his 1993 claim regardless of when the last benefit payment had been issued. Additionally, the Court agreed that the claimant could seek benefits under a “fictional new accident” theory against Employer #2 and Insurer #1, as the claimant filed his request within one year of a replacement of his prosthetic leg paid for by Insurer #1 (pursuant to the 1993 claim), which constituted “remedial treatment” for purposes of tolling the one-year statute outlined for new dates of accident in O.C.G.A §34-9-82.

The primary lesson in Barnes is that while parties have universally applied the two-year statute of limitation in O.C.G.A. §34-9-104 to all claims, the Court of Appeals has definitively stated that, for the time being, this statute of limitation does notapply in claims accepted and continually designated as catastrophic. It is unclear if the Court’s decision would have changed had the Employers/Insurers previously sought a removal of the catastrophic designation. All too often, a claim is deemed catastrophic and essentially considered a “lost cause.” Yet, the Court in Barnes hints that if an employer/insurer demonstrates that a claimant’s injuries are no longer catastrophic, removing the catastrophic designation could foreclose a claimant’s opportunity to recover indemnity benefits decades after his accident took place. This is an issue we all should consider when reviewing catastrophic claims in order to avoid the result in Barnes.

Written by: Lissa Klein, Esq.