Inability to Return to Suitable Work: Georgia’s “Wildcard” Type of Catastrophic Workers’ Compensation Injury

Categories: Workers' Compensation

blackfin Catastrophic Workers’ Compensation Injury

Catastrophic Versus Non-Catastrophic Injuries

Georgia’s Workers’ Compensation Act generally designates all work-related injuries as falling into one of two categories: “non-catastrophic” and “catastrophic.” Medical benefits and temporary total disability benefits are “capped” for the more common, non-catastrophic category at 400 weeks of benefits. Such benefits are not capped if the injury is designated as “catastrophic.”

Who Makes the Designation?

There are essentially two ways to get a Georgia injury to be designated as catastrophic:

  1. By agreement between the employer/insurance company’s attorney and the injured worker’s attorney, and
  2. Designation as “catastrophic” by the Georgia’s State Board of Workers’ Compensation.

Obtaining a “Catastrophic” Designation From the Board

The Georgia Workers’ Compensation Act [see Ga. Code Ann. § 34–9–200.1] provides that an injury is considered “catastrophic” if it includes one (or more) of the following:

  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 use of the appendage
  3. Severe brain or closed head injury
  4. Second or third degree burns over 25 percent of the body as a whole, or third degree burns to 5 percent or more of the face or hands
  5. Total or industrial blindness
  6. If the injury (or condition) prevents the worker from performing his or her prior work, and any work generally available in the national economy for which the worker is qualified

6th Category – Inability to Return to Work – is a Bit of a “Wild Card”

According to the Georgia Board, the focus is on the employee’s ability to return to suitable employment. Initially, the Board tries to determine if the employee can return to his or her former job. If not, then the Board considers a number of factors, including the following, in determining whether any available job is “suitable:”

  •  The employee’s education level
  •  His or her age
  •  Past experience in the work force

The Board provides a clear-cut example of a 6th category situation: a 55-year-old worker who has always done heavy labor as a construction worker, with an 8th grade education and a back injury, who is restricted to sedentary work. Undoubtedly, the worker does not have any transferable skills. If there are no transferable skills and the employer cannot accommodate the work restrictions, the injury to the employee would be deemed catastrophic.

In Close Cases, Board May Look at SSA Vocational Rules

The Board indicates that, in close cases, it sometimes reviews the Social Security Administration (SSA) Vocational Rules – commonly referred to as “the Grid.” The Board notes, however, that the catastrophic designation is always within its discretion.

For example, in the case of a 47-year-old worker with a history in light, unskilled level work and an 8th grade education with no transferable skills, who has a back injury and who is released to sedentary work, “the Grid” indicates that he or she is not disabled.

The Board still can find the injury to be catastrophic, however, since the employee is not capable of returning to work. The Board notes that, with a catastrophic designation, the employee can receive re-training that might enable him or her to return to the active work force. Once retrained, the employee may have transferable skills that would allow him or her to work in the national economy. At that point, the employer or insurance carrier might be able to request a change of condition hearing to have the catastrophic designation removed. Through this process, however, the worker has gained new skills and abilities and is able to be productive again.

Catastrophic Designation Requires Aggressive, Expert Legal Representation

Experience shows that it is very difficult for an employee to gain the catastrophic designation under the 6th or “wildcard” criteria without a strong, aggressive, experienced attorney arguing your case. At the law offices of B. Clarke Nash, P.C., you will have strong and aggressive counsel. Clarke provides personalized service. When you call the office to check on your case, you can discuss the situation with Clarke himself. Clarke once worked for the insurance companies, so he knows how they operate and what motivates them. He has office availability throughout the state of Georgia. Contact the Law Offices of B. Clarke Nash, P.C. by telephone at (912) 200-5292 to schedule a consultation today.