Archive for May, 2009

Statute of Limitations for Catastrophic Workers Compensation Claims

The issue of whether, and what, statute of limitations applies to claims for catastrophic designation has previously remained unanswered in Georgia.  A trio of cases – two already decided by the Georgia Court of Appeals and one fully briefed and under consideration – will provide answers to these questions and will establish in what, if any, circumstances the statute of limitations regarding a catastrophic claim can be tolled.

As a brief background, under Georgia workers’ compensation law, an injured employee’s entitlement to income benefits is capped at 400 weeks.  However, if an injury is deemed to be catastrophic, the injured worker is entitled to lifetime income benefits.  A catastrophic injury must fit in one of five categories: “(1) spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; (2) amputation of an arm, a hand, a foot, or a leg involving the effective loss of that appendage; (3) severe brain or closed head injury…; (4) second or third degree burns…; (5) total industrial blindness; or (6) any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work or any work available in substantial numbers within the national economy for which such employee is otherwise qualified.”  O.C.G.A. § 34-9-200.1(g).  Most claims which fit into the first five (5) categories are relatively easy to discern, but the “catch-all” sixth category has generated substantial litigation. 

The first of three recent cases that will finally solidify the law as to what statute of limitations applies to requests for catastrophic designation and when, and if, the statute is tolled is Williams v. Conagra Poultry of Athens, Inc., 295 Ga. App. 744, 673 S.E.2d 105 (2009).  In Williams, the employee injured her neck and shoulders in November 1992.  She received income benefits for the full 400 weeks, ending in April 2001.  In March 2002, she requested that the State Board of Workers’ Compensation deem her injury catastrophic.  Her request was denied in August 2002.  She filed a second request in April 2003, which was denied as well.  With this denial, the State Board stated that the employee could submit another request if she included the proper documentation.  Ms. Williams did not appeal either decision, but submitted another request in September 2003, which was granted.  The employer appealed.  The Court of Appeals held that requests for catastrophic designation, at their essence, are requests for change of condition in status.  O.C.G.A. § 34-9-104(b) sets the statute of limitations for requests for change of condition claims and requires that any request be made within two (2) years after the last payment of income benefits.  Therefore, to be deemed timely, a request for catastrophic designation must be filed within two (2) years after the last payment of income benefits.  The Court held that the September 2003 request at issue was not timely and, as such, barred by the statute of limitations.

The second case that addresses the statute of limitations issue is Tara Foods v. Johnson, ___ S.E.2d ____, 2009 WL 783011 (Ga. App. 2009).  In Johnson, the employee injured her neck in November 1992 and she received income benefits until August 2001.  In November 2002, Ms. Johnson filed a WC-14, marking only “notice of claim,” indicating that she was not seeking a hearing but only income benefits from August 28, 2001, and continuing for catastrophic designation.  No action was taken.  In August 2005, Ms. Johnson filed another WC-14, requesting payments of medical expenses.  This dispute was resolved and the Consent Agreement indicated that there were no additional issues to be heard.  In September 2006, Ms. Johnson filed another WC-14, this time indicating that she was requesting a hearing.  She also checked the box for catastrophic designation.  The State Board determined that her request for catastrophic designation was untimely.  On appeal to the Court of Appeals, the Court reiterated its holding in Williams that claims for catastrophic designation are subject to the two (2) year statute of limitations of O.C.G.A. § 34-9-104(b).  Additionally, the Court held that Ms. Johnson’s 2002 WC-14 only gave notice of her claim and failed to meet the requirements of O.C.G.A. § 34-9-104(b) and, therefore, it was not proper application.  As such, and consistent with its opinion in Williams, the Court of Appeals held that Ms. Johnson’s first proper request for catastrophic designation was not made until September 2006 and was barred by the applicable statute of limitations.

The final case that addresses the statute of limitations for catastrophic designations is the case of Kroger Co. v. Wilson, Appeal No. A09A1226, currently pending before the Court of Appeals.  In this matter, Mr. Wilson injured his back in June 1994.  He returned to work, was injured in 1998, and returned to work for a different employer until 2004.  Mr. Wilson received his statutory maximum weeks of income benefits and last received income benefits in September 2001.  In August 2003, Mr. Wilson, while gainfully employed, filed a WC-14 seeking income benefits from September 2001 and continuing.  He made no mention of catastrophic designation.  In October 2003, Mr. Wilson dismissed the hearing request, “not to be re-set.”  In April 2006, Mr. Wilson filed a WC-R1CATEE seeking catastrophic designation.  The State Board ruled that Mr. Wilson’s April 2006 request was barred by the statute of limitations and his August 2003 request did not provide the employer with notice he was seeking benefits for catastrophic designation.  This decision was reversed by the Appellate Division, which held that Mr. Wilson was entitled to catastrophic designation.  The Superior Court upheld the Appellate Division’s opinion and the case is currently pending before the Court of Appeals.

In light of the recent related cases of Williams and Johnson, it appears likely that the Court of Appeals will determine that Mr. Wilson’s request for catastrophic designation was not timely filed and was barred by the statute of limitations.  Should the Court of Appeals provide full analysis, as it did in Williams and Johnson, the issue of the application and potential tolling of the statute of limitations with regard to catastrophic claims should be clearly established.  However, both Williams and Johnson have been appealed to the Georgia Supreme Court and, regardless of the decision, Wilson is likely to be appealed as well.  The final result, regardless of the outcome, will give both employees and employers direction as to the time frame in which a claim for catastrophic designation must be filed.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.


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