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Second Injury during Continuous Total Disability Does Not Result in New Maximum Benefit Period

Second Injury during Continuous Total Disability Does Not Result in New Maximum Benefit Period

ERISA and Life Insurance News
(February 6, 2012)

Burnett became totally disabled in February 2007 as the result of a low back injury sustained when he fell from a tractor-trailer truck. Combined began paying benefits in March 2007 under a disability policy that provided a maximum benefit period of two years "for any one accident or sickness."

In February 2009, while still totally disabled and receiving benefits, Burnett fell from a step ladder and injured his back and shoulder. He submitted a second claim for disability benefits, contending that he was entitled to another two-year benefit period. Combined denied the claim because Burnett had never recovered from his original disability.

The policy contained a recurrent disability provision, which stated that "[s]uccessive periods of total disability will be considered one period of total disability unless such periods are separated by at least 180 days or the disabilities resulted from different or unrelated injuries or sickness." Burnett contended that this provision applied, because his new disability was due to an unrelated injury.

Combined contended, however, that the recurrent disability provision, by its express language, applied to successive periods of total disability, not to successive injuries. Combined relied on the policy’s concurrent disability provision, which stated that "[i]f the insured is disabled as the result of one injury or sickness or both an injury and a sickness, [then the] benefits will be paid as if the disability were the result of only one injury or sickness."

Burnett sued, and the district court granted summary judgment to Combined, concluding that Burnett’s second injury, even if totally disabling, resulted in a concurrent disability, not a recurrent disability.

In the absence of any Georgia case on point, the court relied on cases from other jurisdictions and concluded that "the Plaintiff did not have successive periods of disability due to different injuries, but rather, the Plaintiff had one single and uninterrupted period of disability."

When he fell from the step ladder in 2009, Burnett "was still totally disabled and had not at any point been classified as anything other than totally disabled by his doctors," the court said. "A new, successive, disability period could not begin while the Plaintiff was still disabled from his first injury."

The court concluded: "The fact that there was a second injury during the Plaintiff’s period of complete disability does not change the fact that the Plaintiff only had one period of disability and not two successive periods. The Plaintiff’s injury could only be a recurrent disability, entitling him to a new disability period, if the unrelated injury had been after the end of his first disability period."

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