May 12, 2010

A Request for Catastrophic Designation Always Implies An Application for Additional TTD Benefits

by David W. Willis, Esq. and Melissa B. Whitman, Esq.

The Court of Appeals recently elaborated upon the statute of limitations issue involved in Georgia workers’ compensation claims. In Georgia Institute of Technology, et al., v. Hunnicutt (No. A10A0377, decided April 7, 2010) the Court examined the case of Linda Hunnicutt who experienced a compensable injury on May 6, 1996. The employer/insurer paid weekly TTD weekly benefits until February 2, 2004, the maximum number of weeks (400) available under O.C.G.A. §34-9-261. On July 27, 2005, the employee filed a request for catastrophic designation. She did not specifically ask for additional TTD benefits. The State Board Managed Care and Rehabilitation Division designated the injury as catastrophic in May 2006, but did not address TTD benefits. The employer/insurer appealed that ruling. They subsequently dismissed their appeal with prejudice and agreed to provide the employee with rehabilitation benefits.

On December 17, 2007, the employee filed her own hearing request seeking ongoing TTD benefits as a result of her catastrophic designation. The employer/insurer contended the employee was not entitled to TTD benefits as she was barred by the two year statute of limitation in O.C.G.A. §34-9-104(b). The employee argued that her original July 2005 request for catastrophic rehabilitation either (1) implicitly incorporated a request for further TTD benefits or, in the alternative, (2) tolled the statute of limitation. The employer/insurer responded that her request did not expressly seek income benefits, and therefore neither constituted a timely request for additional income benefits nor tolled the statute of limitation.

O.C.G.A. §34-9-104(b) states, “[A]ny party may apply under this Code section for another decision because of a change in condition [] ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that … at the time of the application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 [(TTD income benefits)] … was actually made under [the Workers’ Compensation Act.] The Court also examined the language under O.C.G.A. §34-9-261, which states “in the event of a catastrophic injury as defined in subsection (g) of Code Section 34-9-200.1, the weekly benefit under this Code shall be paid until such time as the employee undergoes a change in condition for the better[.]” (Emphasis supplied.) Here, although the employee did not explicitly request additional TTD benefits in her July 2005 request for catastrophic designation, the Court found her request constituted an application for a “change in condition,” which would authorize the recovery of additional TTD benefits beyond those she had already received. Williams v. Conagra Poultry of Athens, 295 Ga. App. 744 (2009). Because her July 2005 request was filed within two years of the last payment of TTD benefits it was timely and not barred by the statute of limitation.

If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by email at

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