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					The CAT (designation) is Out of the Bag:
Two New Presumptions to Help Put it Back
By Robert D. Ingram and Ryan G. Prescott
Moore, Ingram, Johnson and Steele
This article discusses the limited applica-   Report of the Governor’s Workers’          from a Claimant released to work in
tion of the two new presumptions against      Compensation Review Commission             week 131. Unfortunately, however, the
a catastrophic designation, argues that the   prepared by Georgia Law Professor          statute only guides the Board to con-
presumption will apply retroactively and      Thomas A. Eaton and Georgia                sider “all relevant factors including,
discusses the practical effect the new pre-   Business School Professor David B.         but not limited to, the number of
sumptions will have on Georgia’s              Mustard, 1,269 claims were designat-       hours for which an employee has
Workers’ Compensation system.                 ed as catastrophic from 1997 thru 2002     been released.” Id.
                                              and nearly half (627) of those claims
Introduction                                  were filed under the catch-all category
                                                                                            In addition to the returned-to-work



A
                                                                                         presumption, once an employee who
       mong the numerous bills                6.1 As such, the new presumptions
                                                                                         is designated as having a catastrophic
       passed by the Georgia legisla-         focus on controlling claims filed
                                                                                         injury under the catch-all definition
       ture during the 2005 session           under category 6.
                                                                                         has reached the age of eligibility for
was House Bill 327. With its unani-
                                                The new presumptions only apply          retirement benefits as defined in 42
mous passage, House Bill 327 created
                                              to claims filed under category 6           U.S.C. Section 416(l), as amended
two new presumptions against desig-
                                                                                         March 2, 2004, there shall arise a
nating a workers’ compensation injury            The two presumptions are con-
                                                                                         rebuttable presumption that the injury
as catastrophic. The goal, of course, is      tained in subsections (A) and (B)
                                                                                         is no longer a catastrophic injury; pro-
too prevent an abuse of the cata-             within category 6. That suggests that
                                                                                         vided, however, that this presumption
strophic designation and limit its            courts will only enforce the presump-
                                                                                         shall not arise upon reaching early
application to truly severe cases.            tions in claims filed under the catch-
                                                                                         retirement age as defined in 42 U.S.C.
                                              all definition. Within the same sen-
  A “Catastrophic injury” is defined                                                     Section 416(1), as amended March 2,
                                              tence as the catch-all definition the
as: (1) Spinal cord injury involving                                                     2004. O.C.G.A. § 34-9-200.1(g)(6)(B).
                                              first presumption reads, “if the injury
severe paralysis of an arm, a leg, or                                                    The most difficult task with regards to
                                              has not already been accepted as a
the trunk; (2) Amputation of an arm, a                                                   this presumption is figuring out the
                                              catastrophic injury by the employer
hand, a foot, or a leg involving the                                                     claimant’s age of retirement by look-
                                              and the authorized treating physician
effective loss of use of that                                                            ing at the Federal Code.
                                              has released the employee to return to
appendage; (3) Severe brain or closed
                                              work with restrictions, there shall be a     After reading and re-reading the
head injury (with listed factors); (4)
                                              rebuttable presumption, during a           relevant statute, we think the Federal
Second or third degree burns over 25
                                              period not to exceed 130 weeks from        Code rescheduled the age of retire-
percent of the body as a whole or
                                              the date of injury, that the injury is     ment based on an “age factor
third degree burns to 5 percent or
                                              not a catastrophic injury.” O.C.G.A. §     increase” that is established when the
more of the face or hands; (5) Total or
                                              34-9-200.1(g)(6)(A). Therefore,            employee reaches the age of early
industrial blindness; or (6) Any other
                                              claimants released to work with            retirement, which is determined by
injury of a nature and severity that
                                              restriction will have a more difficult     other factors that partially rely on
prevents the employee from being
                                              time obtaining a catastrophic designa-     other determinations. 42 U.S.C. §
able to perform his or her prior work
                                              tion.                                      416(l). Clear as mud. In most cases,
and any work available in substantial
                                                                                         the age of early retirement is 62 and
numbers within the national economy              Some claimants’ attorneys will
                                                                                         therefore, employees who turned 62
for which such employee is otherwise          inevitably advise their clients to wait
                                                                                         prior to June 2002 have now reached
qualified (added in 1995).                    until 131 weeks after their injury to
                                                                                         the age of retirement. 42 U.S.C. §
                                              file for a catastrophic designation and
  There is little debate over whether                                                    416(l)(2). The other method is to ask
                                              then argue that the presumption does
categories one thru five are appropri-                                                   whether the claimant is receiving
                                              not apply. The question is whether
ate, objective considerations for desig-                                                 retirement benefits, since that should
                                              courts will interpret the 130 week
nating an injury as catastrophic.                                                        be a good indicator.
                                              time period to modify the time for
However, there is concern over
                                              obtaining a release to work or the            Once again, this presumption will
whether the catch-all category 6 and
                                              time for when the presumption would        likely only apply to claimants that are
partial reliance on Social Security dis-
                                              apply. In either case, the 130 week        currently designated catastrophic
ability standards will lead to abuses
                                              period appears arbitrary. It makes no      under category 6 since the presump-
of the true goals of the catastrophic
                                              sense that a claimant released to work     tion is contained in a subsection to
designation. According to the 2003
                                              in week 130 is considered different        category 6.


14                                                                             Workers’ Compensation Law Section
Both presumptions should apply              rights. In Chatham County Dept. of         overcome a presumption to obtain a
retroactively                               Family and Children Servs. v. Williams,    catastrophic designation under cate-
                                            221 Ga. App. 366 (1996), the Court of      gory 6 since the basis for the category
   Absent from the new statute is any       Appeals addressed whether to               6 catastrophic designation is that the
indication on whether the presump-          retroactively apply a changed rule         employee cannot work at any job
tion will apply retroactively. There is,    regarding the maximum time a family        available in substantial numbers.
of course, a prohibition against            member could provide attendant care.       Moreover, it makes sense that an
retroactive laws contained in Article I,    In that case, the court stated that:       employee designated as catastrophic
Section I, Paragraph X of the Georgia                                                  under category 6 must overcome a
Constitution of 1983. However, that            Administrative rules and regula-
                                                                                       presumption to keep that designation
prohibition only applies to those laws      tions, like statutes, will generally not
                                                                                       once they reach the age of retirement
which affect or impair substantive          be applied retroactively unless they
                                                                                       since that employee would have likely
rights under prior law which have           are purely procedural or clearly
                                                                                       discontinued working regardless of
vested at the time the subsequent law       intended to be applied retroactively.
                                                                                       the injury.
takes effect. Where an amendment to         An ongoing workers’ compensation
a statute changes procedure it does         case provides a unique context for           Many employers believe the CAT
not impair vested substantive rights,       retroactive analysis, however, since       has been out of the bag since the cate-
and it is to be given retroactive effect.   once an employer’s obligation to pay       gory 6, or catch-all definition, was
Therefore, the issue is whether the         for a work-related injury is estab-        enacted by the legislature in 1995.
new presumptions affect substantive         lished, the case may continue for          Whether the new presumptions will
rights.                                     decades. During this time the Board        be interpreted consistent with their
                                            will be promulgating and changing          intent to help herd the CATs back into
   Claimants will argue that the new        rules which define and redefine the        the bag is yet to be determined. WC
presumptions do affect substantive          scope of the employer’s obligations
rights since the returned-to-work pre-      and the worker’s rights with respect
sumption potentially prevents a cata-       to medical care; and it would not          Endnote
strophic designation if the authorized      make sense to freeze those obligations
treating physician released the                                                        1. However, as the report concedes,
                                            and rights as they were at the time of
claimant to light-duty within 130                                                         the true amount of catastrophic
                                            the injury, when the need for medical
weeks and the retirement presump-                                                         designation for accidents occurring
                                            care continues. Accordingly, workers’
tion potentially eliminates a cata-                                                       in any given year cannot be known
                                            compensation statutes and rule which
strophic designation, and continuing                                                      until as many as seven years later.
                                            do not render compensable an injury
benefits, once an employee reaches          which would not otherwise be com-
the age of retirement. However, there       pensable, but merely affect the scope
is no direct affect on a substantive        of treatment required, will be applied
right. Moreover, the legislative history    to ongoing cases where the injury pre-
suggests that the statute is procedural.    ceded the effective date of the law. .
   The preamble to House Bill 327           .in determining the applicability of a
reads that its purpose is “to change a      new rule affecting the scope of treat-
provision relating to the designation       ment, courts will look to the dates of
process for a catastrophic injury by        treatment rather than the date of the
creating a rebuttable presumption.”         original injury.
(emphasis added) Thus, courts                  Therefore, the peculiar nature of
should view the new presumptions as         workers’ compensation supports the
procedural, relating to the designation     argument to apply the new presump-
process, and apply them retroactively       tions retroactively, rather than freeze
to all claim regardless of the date of      the rules regarding the catastrophic
injury, date of catastrophic designa-       designation process to the time of the
tion or date of filing for a catastrophic   injury or time of request for a cata-
designation. However, even if courts        strophic designation.
find that the new presumptions par-
tially affect a substantive right, the      The Effect the New Presumptions
presumptions should still apply             will have on the Workers
retroactively.                              Compensation System
  Interestingly, there is case law dicta      In theory, the new presumptions
supporting the position that in the         will help to guard against the abuse of
workers’ compensation forum, a new          the catastrophic designation. It makes
statute applies retroactively even          sense that employees who were
when it arguably effects substantive        released to return to work will have to


Winter 2006                                                                                                    15

				
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