On October 23, 2015, I had the distinct honor of speaking on the topic of “Significant Workers’ Compensation Decisions from the Court of Appeals and the Supreme Court of Georgia with Aarati Subramaniam of Drew Eckl and Farnham in Atlanta, and the Honorable William Cain, Administrative Law Judge with the Georgia State Board of Workers’ Compensation, at ICLE’s Workers’ Compensation Law Institute seminar in St. Simons Island, Georgia. Topics included the 2-year change of condition statute of limitations, ingress/egess, cardiac injury claims, attorney fee liens, statutes of limitations in catastrophic injury claims, and subrogation liens against third party tortfeasors.
All of the cases we discussed were interesting, but of primary importance to injured workers is the Barnes v. Roseburg Forest Products Co. case, 2015 Ga. App. LEXIS 486 (Ga. App. 2015). I will discuss that case further, because I believe it has significant implications for the public and my clients.
In 1993, Willie Barnes sustained a catastrophic injury when he fell through a wood floor and landed in an auger, causing immediate amputation of his left leg below the knee. He received temporary total disability benefits from the employer and insurer until 1994, when he returned to work as a supervisor. He then began collecting permanent partial disability benefits until 1998. The Claimant continued to work for the Employer until he was terminated as part of a company-wide layoff in 2009. At that time, he contacted a representative of the Insurer, and was told he was not entitled to further income benefits.
In 2012, Mr. Barnes filed a request for recommencement of temporary total disability benefits based on a change-in-condition for the worse and also asserted a fictional new accident based on his termination date. The State Board of Workers’ Compensation found that the change-in-condition claim was barred since it had been eleven years since the last payment of benefits. The State Board also found the “fictional new injury” was time-barred since it had been more than one year since the date Mr. Barnes was laid off.
The Court of Appeals reversed. The Court found that the Workers’ Compensation Act did not contemplate a scenario under which a catastrophically-injured claimant would receive benefits, return to work, and subsequently seek to reinstate benefits more than two years after last receiving payment. The Court also concluded that since catastrophic claims are not subject to the 400-week cap on benefits, the Georgia State Legislature intended to differentiate catastrophic from non-catastrophic injuries. The Court reasoned that the two-year statute of limitations on requests for resumption of benefits is inapplicable to a catastrophic claim, so long as the claim remains designated catastrophic.
With respect to the one-year statute of limitations pertaining to the fictional new injury, the Court found that the Employer/Insurer had provided remedial medical treatment in December, 2011, by authorizing a prosthetic leg. Thus, the claim for a fictional new injury filed in November, 2012 was not time-barred. The case is now pending on appeal to the Supreme Court of Georgia.
What is a “fictional new injury?”
A “fictional new injury” occurs when an employee returns to work, but due to the gradual worsening of his condition due to the work he is performing, he is eventually forced to stop working. The first day the claimant misses work is a “fictional new injury” date. The purpose of this rule is to allow an injured worker to return to work without being punished by the statute of limitations for change of condition claims, which will be discussed below. There are technical requirements under the law for establishing a fictional new injury.
What is a “change of condition?”
A “change of condition” occurs when the employee receives income benefits or otherwise has his claim established as compensable, but due to the gradual worsening of his condition in his ordinary life, he is eventually forced to stop working. A “change of condition” is distinguished from a “fictional new injury” in that the change of condition does not require the work to be a contributing factor to the worsening of the claimant’s condition, whereas a fictional new injury does.
What are the statutes of limitations in workers’ compensation claims?
In a so-called “all issues” case, where the employer does not admit liability and has never paid income benefits, the statute of limitations requires that your claim be filed within one year of the date of injury, or within one year of last remedial medical treatment. The latter exception explains why the Court of Appeals found the “fictional new injury” claim was not time-barred — the claim was filed within 1 year of the claimant receiving remedial medical treatment that was paid for by the employer. A change of condition claim must be filed within two years of the last payment of temporary total or temporary partial disability benefits.
Why is this case important?
So-called “catastrophic injuries” in Georgia, which are not subject to the 400 week cap on income benefits, are almost always brought under the “catch-all” subsection, O.C.G.A. § 34-9-200.1 (g)(6). This section deals primarily with an employee’s inability to work, such that in order to prove the case is catastrophic, the claimant has to also prove he cannot work. However, the other provisions of subsection (g) allow catastrophic designation for spinal cord injury involving severe paralysis of an arm, a leg or the trunk, amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage, severe brain or closed head injury, 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, and total or industrial blindness. These subsections do not require the injured worker to prove he cannot work – the claim is catastrophic simply because the injured worker meets the condition listed. Because these provisions are so rarely used, and because when they are, it is unusual for the employee to return to work because of the severity of the injury, the Workers’ Compensation Act does not really contemplate how to handle them relative to the statutes of limitation. A few concerns are present with this case in particular. Among them are these:
- If Mr. Barnes’ claim is barred by the 2-year statute of limitations and the 1-year statute of limitations, then it is undeniable that Mr. Barnes has been punished by the law for doing what every employee ought to be encouraged to do – returning to work. Further, his termination was through no fault of his own, but due to the employer deciding to lay him off. He is now left with a severe injury involving amputation of his leg, and is certainly less employable than he was before the injury.
- If Mr. Barnes’ claim is barred by the 2-year statute of limitations but not the 1-year statute, such that Mr. Barnes may still assert a fictional new injury, several concerns are present. Does Mr. Barnes have to re-assert a catastrophic injury claim for the new date of injury? If he cannot show the new injury is catastrophic, is he limited to 400 weeks of additional benefits even though his case was already catastrophic before he went out of work? Regardless, will his medical benefits be paid under the old, catastrophic date of injury, or does the employer also get to pay benefits under the new date of injury, which would potentially implicate the 400 week cap on medical benefits?
- Is Mr. Barnes still entitled to rehabilitation benefits and other “catastrophic-only” benefits under the old date of injury if he has a fictional new date of injury?
I should state at this point that this is a very hard case. The law is unclear as to the interplay between catastrophic injuries due to paralysis, amputation, severe brain injury, severe burns, or blindness on the one hand, and the 2-year change of condition statute and the fictional new injury doctrine allowing further recovery of income benefits for injured workers on the other hand. The State Board’s decision was an attempt to apply the law to the facts of this case, inequitable as the law may be. The Court of Appeals decision was an attempt to render the law as the legislature clearly intended it to be rendered. The Supreme Court will have to decide who is right and who is wrong. But make no mistake, if the Supreme Court finds that the law is as the Board found, then the law is inequitable and has failed Mr. Barnes in the worst possible way. We remain hopeful the Supreme Court will uphold the decision of the Court of Appeals and bring justice to Mr. Barnes. If it does not, then the legislature needs to fix this problem immediately.
The Workers’ Compensation Act is designed to protect injured workers, especially when they do the right thing and return to work. The employer and insurer in this case have taken the position that even where this occurs, or perhaps especially where this occurs, no further income benefits are due to the employee if he is later unable to work. If the employer and insurer in this case are correct, then Mr. Barnes is being punished for doing what the law ought to encourage every injured worker to do. Allow me, perhaps imprudently, to quote Charles Dickens:
“If the law supposes that…the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience.”