2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 1 - Medical Attention
§ 34-9-200.1. Rehabilitation Benefits; Effect of Employee's Refusal of Treatment; Rehabilitation Suppliers; Catastrophic Injury Cases
- In the event of a catastrophic injury, the employer shall furnish the employee entitled to benefits under this chapter with reasonable and necessary rehabilitation services. The employer either shall appoint a registered rehabilitation supplier or give reasons why rehabilitation is not necessary within 48 hours of the employer's acceptance of the injury as compensable or notification of a final determination of compensability, whichever occurs later. If it is determined that rehabilitation is required under this Code section, the employer shall have a period of 20 days from the date of notification of that determination within which to select a rehabilitation supplier. If the employer fails to select a rehabilitation supplier within such time period, a rehabilitation supplier shall be appointed by the board to provide services at the expense of the employer. The rehabilitation supplier appointed to a catastrophic injury case shall have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in such case.
- A change in the designated rehabilitation supplier shall be made only with approval of the board. Any party to the case may request the board for a change in rehabilitation supplier. The request shall be in a form and manner prescribed by rule of the board and copies of the request shall be served on all parties and each involved rehabilitation supplier. Written objections to the request for a change in rehabilitation supplier may be filed with the board during the 15 day period following the date shown on the certificate of service and the board shall resolve such objections.
- The refusal of the employee without reasonable cause to accept rehabilitation shall entitle the board in its discretion to suspend or reduce the compensation otherwise payable to such employee unless, in the opinion of the board, the circumstances justify the refusal, as determined in the manner provided under Code Section 34-9-100. The board may require recommendations from a panel of specialists in determining whether or not suspension or reduction of compensation is justified.
- Fees of rehabilitation suppliers and the reasonableness and necessity of their services shall be subject to the approval of the State Board of Workers' Compensation. All rehabilitation suppliers shall file with the board all forms required by the board. No rehabilitation supplier shall bill an employee for authorized rehabilitation services. The board may require recommendations from a panel of appropriate peers of the rehabilitation supplier in determining whether the fees submitted and necessity of services rendered were reasonable. The recommendations of the panel of appropriate peers shall be evidence of the reasonableness of fees and necessity of service which the board may consider.
- Failure of the employee's attorney to cooperate with the rehabilitation supplier may result in the suspension or reduction of the fees provided in Code Section 34-9-108 if, in the judgment of the board, the failure to cooperate hindered the restoration of the employee to suitable employment.
- Any rehabilitation supplier shall have a certification or license as set forth by board rule and shall be registered with the State Board of Workers' Compensation. The board shall have the authority to refuse to register an applicant as a rehabilitation supplier, to remove a rehabilitation supplier from a case, to require corrective actions of a rehabilitation supplier, to assess penalties as provided under Code Section 34-9-18 against a rehabilitation supplier, or to suspend or revoke the board registration of a rehabilitation supplier for failure to comply with this chapter or the rules and regulations of the board or the standards of ethics of the applicable licensing or certifying body. Revocation of registration shall be determined in a hearing before an administrative law judge and an adverse decision may be appealed as provided under Code Sections 34-9-103 and 34-9-105. The board shall establish by rule based upon recognized qualifications, educational standards, and competency in the field of rehabilitation suppliers, as determined and set out by the board, those persons who will be authorized to provide rehabilitation services to injured employees under this chapter.
- "Catastrophic injury" means any injury which is one of the following:
- 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 as evidenced by:
- Severe sensory or motor disturbances;
- Severe communication disturbances;
- Severe complex integrated disturbances of cerebral function;
- Severe disturbances of consciousness;
- Severe episodic neurological disorders; or
- Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph;
- 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;
- Total or industrial blindness; or
- 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; provided, however, if the injury has not already been accepted as a catastrophic injury by the employer and the authorized treating physician has released the employee to return to work with restrictions, there shall be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. During such period, in determining whether an injury is catastrophic, the board shall give consideration to all relevant factors including, but not limited to, the number of hours for which an employee has been released. A decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act shall be admissible in evidence and the board shall give the evidence the consideration and deference due under the circumstances regarding the issue of whether the injury is a catastrophic injury; provided, however, that no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act.
- 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(l), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury; provided, however, that this presumption shall not arise upon reaching early retirement age as defined in 42 U.S.C. Section 416(1), as amended March 2, 2004. When using this presumption, a determination that the injury is no longer catastrophic can only be made by the board after it has conducted an evidentiary hearing.
The rehabilitation supplier appointed to a catastrophic injury case shall have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in such case.
- In the event of an injury that is not catastrophic, the parties may elect that the employer will provide a rehabilitation supplier on a voluntary basis for so long as the parties agree in writing. The rehabilitation supplier utilized by the parties must hold one of the certifications or licenses specified in subsection (f) of this Code section and be registered with the State Board of Workers' Compensation or have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in the case.
- Subsequent to either an employer's designating an employee's injury as catastrophic or a board determination as to the catastrophic or noncatastrophic nature of an employee's injury, either party may request a new determination, based on reasonable grounds, as to the catastrophic or noncatastrophic nature of the employee's injury.
(Code 1981, §34-9-200.1, enacted by Ga. L. 1985, p. 727, § 4; Ga. L. 1989, p. 579, §§ 3, 4; Ga. L. 1990, p. 1409, § 5; Ga. L. 1992, p. 1942, § 15; Ga. L. 1995, p. 642, § 9; Ga. L. 1996, p. 1291, § 8; Ga. L. 1997, p. 1367, § 6; Ga. L. 1999, p. 817, § 3; Ga. L. 2002, p. 846, § 2; Ga. L. 2003, p. 364, § 3; Ga. L. 2005, p. 1210, §§ 5, 6/HB 327; Ga. L. 2007, p. 616, § 3/HB 424.)Code Commission notes.
- Pursuant to Code Section 28-9-5, in 1986, in former subsection (f) (see subsection (e)) "the" was deleted preceding "Code Section".
Pursuant to Code Section 28-9-5, in 1992, a semicolon was substituted for the period at the end of subparagraph (g)(3)(F).Editor's notes.
- Ga. L. 1995, p. 642, § 13, not codified by the General Assembly, provides for severability.U.S. Code.
- Title XVI of the Social Security Act, referred to in paragraph (g)(6), is codified at 42 U.S.C. 1381 et seq.
Title II of the Social Security Act, referred to in paragraph (g)(6), is codified at 42 U.S.C. 401 et seq.Law reviews.
- For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For annual survey of workers' compensation law, see 58 Mercer L. Rev. 453 (2006). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007). For survey article on workers' compensation law, see 60 Mercer L. Rev. 433 (2008). For annual survey of law on workers' compensation, see 62 Mercer L. Rev. 383 (2010). For annual survey on workers' compensation, see 65 Mercer L. Rev. 311 (2013). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992). For review of 1996 workers' compensation legislation, see 13 Ga. St. U.L. Rev. 233 (1996).
Constitutionality of former paragraph (g)(6).
- The provision of paragraph (g)(6), prior to the 1995 amendment, did not unconstitutionally mandate a workers' compensation administrative law judge to conclusively presume a finding of "catastrophic injury" solely because the claimant had been awarded Social Security disability benefits. Cobb County Sch. Dist. v. Barker, 271 Ga. 35, 518 S.E.2d 126 (1999).
Georgia State Board of Workers' Compensation could have found that an expert's testimony on accommodation jobs was in the context of a general discussion; as the expert testified that the workers' compensation claimant was capable of performing certain jobs, even considering the claimant's restrictions, the expert's testimony complied with Social Security Administration policy, which was applied in analyzing the testimony under the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-200.1(g)(6). Davis v. Carter Mech., Inc., 272 Ga. App. 773, 612 S.E.2d 879 (2005).Interpretation of "or" within
§ 34-9-200.1(g)(6). - Trial court properly reversed a decision by the Georgia Workers' Compensation Appellate Division and reinstated a decision of an administrative law judge who found that an employee suffered a "catastrophic injury" for purposes of O.C.G.A. § 34-9-200.1(g)(6), as the employee was unable to perform the prior work done, although the employee was able to perform other work available in substantial numbers within the national economy; the relevant provision of § 34-9-200.1(g)(6) used "or" between the two types of work that an employee could perform rather than "and" and that phraseology was deemed unambiguous, plain, and capable of having only one meaning, based on statutory interpretation rules under O.C.G.A. § 1-3-1(a) and legislative changes over time to § 34-9-200.1(g)(6). Rite-Aid Corp. v. Davis, 280 Ga. App. 522, 634 S.E.2d 480 (2006).Provision of handicap-accessible housing.
- O.C.G.A. § 34-9-200.1 permits the Workers' Compensation Board to require the employer to provide handicap-accessible housing to an injured employee. Pringle v. Mayor of Savannah, 223 Ga. App. 751, 478 S.E.2d 139 (1996).
Superior court erred in reversing the decision of the Appellate Division of the State Board of Workers' Compensation because the Board properly determined that the employer was not obligated to build a wheelchair-accessible home for the employee on property that the employee owned and that the employer could meet the employer's obligations under relevant provisions of the Workers' Compensation Act and Board rules by providing the employee a life estate in a suitable home while retaining title to the property in fee simple; while the Act, O.C.G.A. § 34-9-200.1(a), and Ga. Bd. Workers' Comp. R. 200.1(a)(5)(ii) clearly provide for employer-provided housing to the catastrophically injured employee, neither explicitly requires that such housing be provided to the employee in fee simple. S. Concrete/Watkins Associated Indus. v. Spires, Ga. App. , S.E.2d (Mar. 22, 2011).Appointment of rehabilitation supplier.
- When employee awarded workers' compensation benefits petitioned the board for the appointment of a rehabilitation supplier and requested a particular supplier by name, and the employer objected to the award and appealed to the full board, the court found that the board exceeded its authority in appointing a specific rehabilitation supplier without first giving the employer notice and an opportunity to name the supplier. Walden v. Cutlery Corp., 190 Ga. App. 363, 378 S.E.2d 697 (1989).Working claimant may still need services.
- Mere fact that claimant was able to work at a job "suitable to his impaired condition" did not mean that claimant was not in need of medical, psychological, or vocational services, when claimant was still physically impaired as a result of claimant's compensable injury and had not found suitable work. Jackson v. Peachtree Hous. Div., 187 Ga. App. 612, 371 S.E.2d 112, cert. denied, 187 Ga. App. 907, 370 S.E.2d 194 (1988).Discretion of board to suspend or reduce compensation.
- Even upon a finding of refusal to accept vocational rehabilitation (cooperate) without reasonable cause, the board is merely authorized to alter the compensation "in its discretion" unless in its "opinion" the "circumstances justify the refusal." These broad avenues of discretion are limited only by the standard in O.C.G.A. § 34-9-240, which requires cessation of compensation when a suitable job is procured and an employee unjustifiably refuses it. Carod Bldg. Servs. v. Williams, 182 Ga. App. 340, 355 S.E.2d 723 (1987).Authority of Board.
- Appellate Division of the State Board of Workers' Compensation had the authority to award a life estate to an employer because no dispute as to the title of land was foreseeable in the future, and the Board did not exercise authority reserved to the superior court alone, but rather, the Board simply exercised the Board's broad authority to craft a reasonable remedy; the Board's Rehabilitation Guidelines require that all issues of ownership and maintenance be resolved before any construction begins. S. Concrete/Watkins Associated Indus. v. Spires, Ga. App. , S.E.2d (Mar. 22, 2011).Presumption from receipt of Social Security benefits rebutted.
- After the State Board of Workers' Compensation denied an employee's request to have the employee's back injury designated catastrophic, based on evidence that the employee could perform light duty and sedentary work, a trial court should have affirmed that determination because there was evidence in the record to support it; the presumption of catastrophic injury which arose upon the award to the employee of Social Security disability benefits, pursuant to O.C.G.A. § 34-9-200.1(g)(6), was adequately rebutted by the evidence. Jered Indus. v. Pearson, 261 Ga. App. 373, 582 S.E.2d 522 (2003).
While the employer's expert did not take into account all of the limitations identified by the claimant's expert, the discrepancy went to the weight to be accorded the expert's report and not to its competence; it was in the province of the Georgia State Board of Workers' Compensation to determine whether the experts considered the appropriate factors. Davis v. Carter Mech., Inc., 272 Ga. App. 773, 612 S.E.2d 879 (2005).Admissibility of evidence denying Social Security benefits.
- Even if the State Board of Workers' Compensation erred by considering evidence of the Social Security Administration's (SSA) decisions denying the claimant's application for benefits, the claimant did not show that the error affected the outcome because the ALJ and the Board based their ultimate decisions on the claimant's failure to present credible evidence that there were no jobs for the claimant in the national economy and the SSA decisions were not relevant to that issue. McCrary v. Employees' Retirement System of Georgia, 349 Ga. App. 466, 825 S.E.2d 896 (2019).Expert testimony complied with statutory requirements.
- Employer's expert's testimony complied with O.C.G.A. § 34-9-200.1(g)(6), even though the expert did not testify that the jobs that were identified for the workers' compensation claimant were available; the Georgia legislature's use of the term "availability" in § 34-9-200.1(g)(6) is not intended to require a showing beyond proof that work exists in substantial numbers within the national economy. Davis v. Carter Mech., Inc., 272 Ga. App. 773, 612 S.E.2d 879 (2005).Employee's age as a consideration.
- Because an employee's age was one of the issues considered by an ALJ in reaching a decision that the employee's injuries were catastrophic under O.C.G.A. § 34-9-200.1(g)(6), and such was also considered in a rehabilitation expert's opinion, the superior court's finding that age was not properly considered was simply unfounded and thus, reversible error. Caswell, Inc. v. Spencer, 280 Ga. App. 141, 633 S.E.2d 449 (2006).Catastrophic injury finding supported.
- Administrative law judge's findings with respect to a determination that an employee suffered a "catastrophic injury" pursuant to O.C.G.A. § 34-9-200.1(g)(6) were supported by competent and credible evidence contained within the record and, accordingly, a court's obligation on judicial review was to confirm that finding; the employee was unable to perform prior work as a store manager, merchandiser, or cashier due to the neck and shoulder injuries, although the employee could perform sedentary jobs available in substantial numbers in the national economy, but the inability to perform the employee's work alone sufficed under the unambiguous provisions of § 34-9-200.1(g)(6) to warrant relief. Rite-Aid Corp. v. Davis, 280 Ga. App. 522, 634 S.E.2d 480 (2006).Catastrophic injury finding not supported.
- Trial court's reversal of a State Board of Workers' Compensation decision finding that a claimant had a catastrophic injury was upheld on appeal since there was no competent evidence before the board of the unavailability of work within the national economy for which the claimant was otherwise qualified; the board concluded that the claimant's injury was catastrophic based solely on its own experience, which the board was without authority to do without considering whether the claimant was unable to perform any work available in substantial numbers within the national economy. Reid v. Ga. Bldg. Auth., 283 Ga. App. 413, 641 S.E.2d 642 (2007).
Superior court erred in reversing the decision of the Appellate Division of the State Board of Workers' Compensation to overrule an administrative law judge's (ALJ) finding that an employee sustained a catastrophic injury under O.C.G.A. § 34-9-200.1(g) because the Appellate Division performed the appropriate review pursuant to O.C.G.A. § 34-9-103(a), and the superior court erred in finding that the Appellate Division committed legal error by improperly applying a de novo standard of review to the ALJ's findings of fact; after weighing the evidence received by the ALJ, the Appellate Division concluded that the preponderance of the competent and credible evidence did not support the ALJ's catastrophic injury finding, and thus, the Appellate Division substituted the Division's own findings for those of the ALJ, as the Division was authorized to do. Bonus Stores, Inc. v. Hensley, 309 Ga. App. 129, 710 S.E.2d 201 (2011).
Because the finding of the Appellate Division of the State Board of Workers' Compensation that an employee's injuries were not catastrophic was supported by some evidence, the superior court erred in weighing the evidence and in substituting the court's judgment for that of the Appellate Division; the findings of an orthopedist who evaluated the employee and other doctors, together with a spine specialist's written assessment and testimony, provided evidence that at least by the time of the Appellate Division's judgment, the employee's back injury was not of a nature and severity that the injury prevented the employee from being able to perform any work available in substantial numbers within the national economy for which the employee was otherwise qualified. Bonus Stores, Inc. v. Hensley, 309 Ga. App. 129, 710 S.E.2d 201 (2011).
Superior court erred in affirming a decision to deny an employee's request to designate the injury the employee sustained while working for an employer as catastrophic pursuant to O.C.G.A. § 34-9-200.1(g)(6)(A) because the administrative law judge (ALJ) erred by making a determination as to the compensability of the employee's lower back pain when that issue was not before the ALJ; there was no evidence that the employee had notice and an opportunity to be heard on the issue of compensability or that the employee gave implied consent to trial of that issue. Harris v. Eastman Youth Dev. Ctr., 315 Ga. App. 643, 727 S.E.2d 254 (2012).
Trial court did not err by affirming the decision of the State Board of Workers' Compensation because the Board unequivocally stated that the Board's decision was based on the record and acceptance of the administrative law judge's (ALJ) determinations as to weight and credibility of the evidence, the Board did not alter the key findings of fact regarding the credibility of the claimant's vocational expert, the claimant's argument that the Board improperly based the Board's determination solely on the Board's own experience was not supported by the record, and the claimant's medical records and reports supported the finding by the ALJ and the Board that the claimant did not have a catastrophic injury. McCrary v. Employees' Retirement System of Georgia, 349 Ga. App. 466, 825 S.E.2d 896 (2019).Untimely request for catastrophic injury designation.
- Driver's claim for catastrophic designation of an injury was time-barred under O.C.G.A. § 34-9-104(b) because, inasmuch as the driver sought additional income benefits, the driver had two years from the date of the last income benefits payment to file the WC-R1CATEE claim form for a catastrophic injury designation, but failed to do so; the driver's earlier filing of a WC-14 form did not toll the statute of limitation because the only benefits sought in the driver's WC-14 form were temporary disability benefits. There was no request for a catastrophic injury designation in the WC-14 form. Kroger Co. v. Wilson, 301 Ga. App. 345, 687 S.E.2d 586 (2009), cert. denied, No. S10C0606, 2010 Ga. LEXIS 341 (Ga. 2010).
OPINIONS OF THE ATTORNEY GENERAL
Liability in connection with peer review duties.
- Employees of the Rehabilitation Department of State Board of Workers' Compensation performing "peer review" duties are afforded the same protection from liability for their actions as other public officers in the executive branch of state government. 1986 Op. Att'y Gen. No. 86-46.
Employee performing peer review duties would be entitled to representation by the state in any action arising out of the performance of the employee's official duties. 1986 Op. Att'y Gen. No. 86-46.Protection of members of peer review panel.
- Person who is a private rehabilitation supplier serving on a peer review panel for the State Board of Workers' Compensation would not be afforded the statutory protection provided in O.C.G.A. § 31-7-130, et seq., which relates to peer review groups evaluating the quality and efficiency of professional health care providers, regardless of whether that peer review committee conformed to the model promulgated by the National Association of Rehabilitation Professionals. 1987 Op. Att'y Gen. No. 87-4.
- Workers' compensation: vocational rehabilitation statutes, 67 A.L.R.4th 612.