In Georgia workers’ compensation cases, proving one is totally and permanently disabled is not easy. Unless claimant has suffered a severe traumatic brain injury or a condition like quadriplegia or blindness, it will require substantial evidence from medical experts to prove the case.
As pointed out by a recent ProPublica article on, “The Demolition of Workers’ Compensation,” the state ended the promise of lifetime medical care for work injuries in 2013, capping it at eight years for all but the worst cases.
Per Georgia Code Section 34-9-263, guides to percentage of disability or body loss ratings follow the guide published by the American Medical Association. Only if a person suffers the loss of more than one major member (i.e., both arms, hands, legs, feet or any two or more of these members OR loss of vision in both eyes), there is a rebuttable presumption of permanent total disability, as defined in Georgia Code Section 34-9-261. That means the burden of proof shifts to the defendant in the workers’ compensation case to show why plaintiff shouldn’t receive benefits (instead of the other way around).
The state workers’ compensation law allows that, for a plaintiff who is permanently and totally disabled, benefits will be two-thirds of employee’s average weekly wage (but no more than $500 a week) for a maximum of 400 weeks – UNLESS the injury is “catastrophic,” as defined in Georgia Code Section 34-9-200.1.
A catastrophic injury is:
- Spinal cord injury involving severe paralysis of an arm, leg or the trunk;
- Amputation of an arm, hand, foot or leg involving effective loss of use;
- Severe brain or closed head injury;
- Second- or third-degree burns over 25 percent of body or third-degree burns to 5 percent or more of face and hands;
- Total or industrial blindness.
All this brings us to the recent case of Sevy v. SVL Analytical, Inc., before the Idaho Supreme Court. Plaintiff, born in 1963, never graduated high school or got a GED and has worked in a variety of service jobs over the years, including gas station attendant, dish washer, food server and change seller at a casino. Starting in 2004, she started working for defendant company preparing soil samples, which required her to lift buckets and bags of soil.
Years earlier, she suffered a non-work-related injury to her back, requiring surgery. She also suffered chronic pain due to degenerative disc disease. After undergoing a surgery for these conditions, she started doing lighter-duty work, getting help from co-workers and sliding bags across the floor instead of lifting them. Her condition worsened, and she was allowed to handle lighter bags and also work data entry.
The company allowed workers to bring their dogs with them to work, and one day, she tripped and fell over a co-worker’s dog, hitting her head on the floor. She sought treatment two weeks later and described progressing neck pain and muscle spasms. Doctor noted an earlier surgical fusion was fractured.
She underwent another surgery and returned to light duty work, though she continued to complain of pain. Doctor indicated she had reached maximum medical improvement with regard to her work injury and any further treatment was related to her pre-existing condition, though he did place significant restrictions on her work. Ultimately, physician decided she could no longer work at defendant company, and recommended sedentary employment.
She then worked under a state care program, providing child care for her three young grandchildren, but was otherwise unable to find work.
Seeking permanent total disability benefits, she argued she was unable to work. The commission, however, disagreed, although noted that given her lack of education, lack of transferable job skills and the local labor market, her disability rating was somewhere between 50 and 75 percent. She had not, however, met her proof burden to show she was totally permanently disabled.
Her request was denied and that decision was upheld by the state supreme court. Under the “odd-lot doctrine,” she would have needed to show her work accident, combined with the pre-existing condition, caused total and permanent disability. The state high court found no evidence that commission’s ruling she failed to meet that burden was improper.
For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.