Assemble Your Defense: The Superhero Playbook for Catastrophic Claims 

By: Thea A. Nanton-Persaud, Esq. 

Partner, Swift Currie McGhee & Hiers, LLP 

Navigating a catastrophic claim can be daunting, challenging and expensive. Armed with the right playbook and tools, your catastrophic claim does not need to be a catastrophe.  

The Law 

The first step for managing a catastrophic claim is to have an understanding of which claims fall under this category and what legal criteria needs to be met. Catastrophic claims are governed by O.C.G.A. § 34-9-200.1 and more specifically defined in subsection (g): 

 “Catastrophic injury” means any injury which is one 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 that appendage; 

(3) Severe brain or closed head injury as evidenced by: 

(A) Severe sensory or motor disturbances; 

(B) Severe communication disturbances; 

(C) Severe complex integrated disturbances of cerebral function; 

(D) Severe disturbances of consciousness; 

(E) Severe episodic neurological disorders; or 

(F) Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph; 

(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; or 

(6)(A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified… 

Injuries falling under subsections 1, 2, 4 and 5 are often easy to identify and do not require much in the way of investigation. These categories are essentially an “automatic” qualification based on the objective severity of these types of injury. 

Injuries falling under subsection 3, related to severe head injuries, can be more difficult to evaluate as the symptoms are often subjective in nature, and barring a clear-cut significant traumatic brain injury, can be challenging to defend. When dealing with these types of claims, securing strong medical evidence about the severity of the claimant’s deficits is key. In order to be considered catastrophic, the deficits should truly be severe in nature and not just a passing symptom. 

(g)(6) – The Catchall  

Most litigated catastrophic claims fall under the catchall § 34-9-200.1(g)(6) category. This section defines a catastrophic injury as: 

Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified. 

Most commonly this will be raised in a case where the 400-week Temporary Total Disability benefit cap or the 350-week Temporary Partial Disability benefit cap are close to expiration. The argument is that the claimant remains unable to return to work and will likely not ever be able to do so based on their limitations and lack of transferable skills. The designation is more likely to be granted in a case where the claimant has not been released to return to work by the authorized treating physician. However, where the claimant has been released with restrictions but has not returned to work, this gives rise to a question as to whether the claim is catastrophic. 

The claimant has the burden of proof to show the claim should be designated as catastrophic.  In addition to medical evidence, the claimant will need to be able to credibly show that they are unable to return to their previous work, or other work available in substantial numbers in the national economy for which they are otherwise qualified. The opinion of a vocational expert is typically needed to establish the claimant’s ability to return to work. The vocational expert usually performs a transferable skills analysis in conjunction with a Department of  Transportation job search analysis, which will identify positions available in the national economy that the claimant is qualified for. Even though the claimant has the burden of proof, the best practice for defending a catastrophic claim is for the employer/insurer to also have a vocational expert opinion. 

A strong vocational opinion will rely on a thorough investigation into the claimant’s educational background, job history and other transferable skills. Functional capacity evaluations can also be helpful. 

If the claimant has been approved for Social Security Disability benefits, the award of benefits can be used as admissible evidence to support a claim for catastrophic benefits, although it does not create a presumption that the claim is catastrophic¹. Social Security Disability benefits are often granted for multiple medical reasons, not just those related to a workers’ compensation claim. Further, the standard for an Social Security Disability Insurance (SSDI) award is not the same as for a catastrophic designation. 

Other factors in determining the acceptance of a claim as catastrophic include the length of time the claimant has been released to return to work with restrictions by the authorized treating physician. There is a rebuttable presumption that a claim is not catastrophic if the claimant has been released to return to work with restrictions for less than 130 weeks.² 

A request for catastrophic designation is made by filing a WC-R1CATEE form. While the form requires some basic information and supporting medical evidence to support the request, the level of documentation required is generally not sufficient for making a determination in a contested claim. Objections to an R1CATTEE must be filed within 20 days. Best practice is to simultaneously file a WC-14 hearing request, which will move the claim to an Administrative Law Judge rather than have the determination made by the rehabilitation coordinator at the State Board. 

The Impact 

If a claim has been designated as catastrophic, the claimant is no longer subject to the 400-week or 350-week benefit caps. Instead, indemnity entitlement will continue until such time as the claimant has a change of condition for the better. In practice, this essentially means the claimant could be entitled to lifetime indemnity benefits. 

In addition to the increased indemnity exposure, the claimant becomes entitled to lifetime medical treatment for the work related injury. 

If a claim is voluntarily accepted as catastrophic, the employer/insurer must file a WC-R1 within 48 hours of acceptance and appoint a certified catastrophic rehabilitation supplier to the claim. If the designation was by an administrative decision or award, the employer/insurer has 20 days to appoint the rehabilitation supplier or forfeit the right to choose. 

The role of the rehabilitation supplier is to have responsibility for the rehabilitation aspects of the case. The supplier communicates with the injured employee and others to assess, plan, implement, coordinate, monitor and evaluate options and services to meet an injured worker’s rehabilitation needs. The rehabilitation supplier is not a party to the claim.³ 

A good rehabilitation supplier can help to contain your catastrophic claim costs. You want a supplier who will advocate for reasonable treatment recommendations from authorized providers, and one who is willing to challenge recommendations that bear no causal relationship or are not reasonable and necessary treatment for the claim. Catastrophic claims often come with recommendations related to housing, transportation and home health care which can be challenging to navigate without the aid of a good rehabilitation supplier. 

Either party can request a Rehabilitation Conference to address disputed issues in a catastrophic claim. All parties, and the Rehabilitation Supplier, are required to participate in the conference. The process is similar to mediation. At the conclusion of the conference an administrative decision is issued. The decision can be appealed and the underlying issue placed into litigation if necessary. 

Is it forever?  

While we like to assume a catastrophic designation is a lifetime sentence, the reality is that you treat this type of claim as you would any other. Has the claimant’s medical condition improved? Has the claimant voluntarily returned to work? Has the claimant reached Medicare eligibility age? All of these scenarios present an opportunity to revisit a catastrophic designation. 

Subsection (i) specifically states, “Either party may request a new determination, based on reasonable grounds, as to the catastrophic or non-catastrophic nature of the employee's injury.”⁴ Particularly in claims where the designation fell under the catchall provision or is related to an injury from which there could be some measure of recovery or improvement over time, this is something which should be addressed and revisited.  

The goal of providing rehabilitation services in catastrophic claims is to move the claimant to suitable employment, where possible. As with any other type of claim where a claimant was once receiving benefits but has an actual return to work, the employer/insurer can proceed with a suspension of indemnity benefits. This would not impact the entitlement to lifetime medical. 

Age is another determining factor. Once an employee who is designated as having a catastrophic injury under this subsection (g)(6) has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. § 416(l), there is a rebuttable presumption that the injury is no longer a catastrophic injury. A determination that the injury is no longer catastrophic can only be made by the Board after it has conducted an evidentiary hearing.⁵ 

A catastrophic claim is challenging, but with the right tools you can keep your claim under control and limit your exposure. As a first step always determine whether your claim meets the criteria for a catastrophic designation. If there is a question as to compensability, place the claim into litigation and develop evidence of the non-catastrophic nature of the claim through strong vocational opinions and medical opinions. If your claim has been designated as catastrophic ensure you are working with a good catastrophic rehabilitation supplier to help manage the medical and rehabilitation services associated with the claim to avoid unnecessarily inflated claim costs. Consider posturing the claim for settlement, which may involve the use of a Medicare set aside and/or a medical cost projection (to address non-covered expenses). With these tools to define, defend and manage your claim, your catastrophic claim does not need to be a catastrophe. 

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