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Pitfalls in a Catastrophic Workers’ Compensation Case6 minute read

Proving that your case is catastrophic has many benefits.  However, there are many pitfalls you need to watch out for. This article will discuss a couple of the pitfalls of catastrophic designation in a Georgia workers’ compensation claim.

One of those pitfalls is is getting the evidence you need to prove your catastrophic case.  The other pitfall is that insurance companies will often tell injured workers that they need to settle their catastrophic case because they have reached retirement age and will thus lose their catastrophic designation.

Proving that Your Case is Catastrophic

If you or your attorney are considering filing for catastrophic designation, you probably know that your injury keeps you from working.  But the insurance company will require that you prove that to a judge.

You will need to provide the evidence you need to prove your case in court.  If you do not have the evidence necessary to prove your case, you will probably lose.  So, what do you need to prove your case?

What type of evidence of work restrictions do I need?

You need evidence to show that you meet the definition for catastrophic designation.  As we discussed in our article about proving catastrophic designation, you have to prove that you have one of six types of catastrophic injury.

There are five specific types of injuries and then the “catch all” catastrophic provision.  You need medical evidence from your doctor to prove each type.

Most catastrophic cases come under the “catch all” category instead of the five specific injury categories.  The “catch all” is also the category where getting the evidence you need from your doctor can be most difficult.

The only way medical evidence will help you win your “catch all” catastrophic case is if it allows a vocational expert to testify that you cannot perform your prior work or other work available in substantial numbers in the national economy.  Because of this, whether you win or lose your case can often come down to exactly what type of work restrictions your doctors give you.

Man suffering from a catastrophic injuryThere are some work restrictions that may keep you from doing all kinds of jobs. For example, if you cannot lift very much, cannot sit very long, and cannot stand very long, then there is a good chance that you are not going to be able to do any work.  Most jobs require you to be able to either sit or stand for an extended period and most jobs require you to lift.

You may know that you have a severe injury that gives you restrictions that prevent you from working.  But if your doctor does not clearly state those restrictions, then the vocational expert and the workers’ compensation administrative law judge will not have the evidence to determine that your work injury is catastrophic. It is very important for your treating doctors to be very specific about all the ways that your injury can affect your ability to work.

You also have to prove that you cannot do your prior work in order to qualify for a catastrophic designation. If your prior work was physically demanding, this may be easy. If your prior work was not physically demanding, then it is going to be more difficult. However, if you do not establish that you cannot do your prior work, you will probably lose your catastrophic case (unless you can prove that you have suffered one of the five specific types of catastrophic injuries).

Will my benefits stop when I reach retirement age?

Even when you get your case designated catastrophic, insurance companies still try to convince you that your temporary total disability benefits will stop when you reach retirement age.  The insurance companies try to do this to convince you that you should take less money to settle your case.

There is a law that does talk about catastrophic designation and retirement age.  That law is O.C.G.A. § 34-9-200.1(g)(6)(B). It became effective July 1, 2005.  It provides:

  • Once an employee who is designated as having a catastrophic injury under this subsection has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. section 416(1), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury;

From just reading this law, it appears that you will lose your workers’ compensation benefits at Social Security retirement age. But, as the old saying goes, appearances can be deceiving.

Insurance companies have suggested that the intent of the Georgia workers’ compensation law was to take away income benefits at Social Security retirement age.  Otherwise, a catastrophically injured worker can continue to receive benefits for life.

Proving that your case is catastrophic can be difficultBut, is that really the intent? There is something wrong with taking those benefits away from catastrophically injured workers. Many people now work well beyond Social Security retirement age. When their workers’ compensation injury prevents them from doing that, they should continue to receive benefits.

How can I prevent my benefits from stopping?

Even if an insurance company tries to stop your benefits, there are a number of legal arguments that a workers’ compensation attorney can make to show that the insurance company’s position is not correct.

Also, the language from O.C.G.A. §34-9-200.1(g)(6)(B) only creates a “rebuttable presumption” that the injury is no longer catastrophic.  Basically, “rebuttable presumption” is a technical legal term.  It means that the law is going to assume that your injury is no longer catastrophic unless you prove otherwise.

But you can prove otherwise, and you should almost always try to do so.

 

Getting help with a catastrophic designation

Catastrophic designation is a very complicated area of the Georgia workers’ compensation law. You do not have to have an attorney to handle any part of your workers’ compensation case, but this is an area of the law where you are almost certainly making a mistake if they do not get an attorney.  There are simply too many pitfalls in proving your catastrophic case for it to be a good decision to try to do it on your own.

Before you call up an attorney and hire them, it is usually a good idea to talk to them about your case and find out how they would be able to help you.  Our firm offers free consultations with me and our other workers’ compensation attorneys.

What if I have other questions about workers compensation?

Georgia’s workers compensation system can be very confusing.  You have to worry about getting the treatment you need and paying your bills while also worrying about not missing any deadlines that could cause you to lose your right to receive workers compensation benefits.

If you have questions, I would recommend that you try to get answers.  To find out more about how to schedule a time to talk to me about your workers compensation questions, just read this short article.

Jason Perkins is an attorney who specializes in representing injured workers.  He regularly publishes videos and write blog articles about Georgia’s workers compensation system and issues that are important to injured workers and their families.

To be notified of Jason’s new workers compensation videos, subscribe to his Georgia Workers Compensation Video Series channel on YouTube by clicking the subscribe button below.

Brittney-lee orourkeBrittney-lee orourke
05:23 18 Feb 22
Amazing! Jason and his team were very helpful and had the best communication by far. Walked me though every step with great detail and had answers for any question I had. They handled my case better then I could imagine, it was a weird case and they stayed on top of it and kept me updated every step of the way! Highly recommend this Team! Thanks so much to Jason and his Awesome team!-Brittney
China JonesChina Jones
18:58 08 Feb 22
I absolutely love this group of attorneys, when I was at my lowest they did everything they could to help me get justice for my injury. I believe if I were to have never picked my phone up and called the amazing group that helped me I definitely would not have received my idea of rights. If you have an issue and are just not sure please understand that they will help you, stay in contact, answer any question you have, and for sure get you the justice you deserve I thank them from the bottom of my heart and I will definitely refer them to anyone who has been hurt because they most definitely care about their work and clients.
Luv LocsLuv Locs
16:08 15 Jan 22
The entire law office was attentive and responsive to all of my concerns dealing with my workers compensation case.
moombimoombi
21:14 02 Jan 22
If you must get a lawyer involved, you’d do well to work with Jason Perkins and his team at Perkins Studdard Law.They were thorough in gathering information and in sharing all the steps in the workers comp process specific to my case. Jason and the team were responsive to my bevy of questions and concerns.I appreciated the informative videos and consultations provided by Jason over video meetings and multiple phone calls.I hope I’m never injured on the job again. However, if I am and if my employer responds as my previous employer did, I’ll contact Perkins Studdard Law immediately to handle the case.
Dana BessDana Bess
23:57 10 Dec 21
Everyone at Perkins Studdard was kind and professional. They were always extremely responsive and answered all questions that I had and followed up to make sure I had an understanding of what was going on along with emailing videos to explain every step of my case so I would know what to expect and be prepared. Jason is a very genuine person and I trusted him with my case. He answered so many questions for me even before I retained him as my WC lawyer. I highly recommend him and his associates at Perkins Studdard.
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