State News : Georgia

Rayford H. Taylor
Of Counsel
Gilson Athans P.C.
980 Hammond Drive, Suite 800
Atlanta, Georgia 30328
770-512-0300 - Ext. 529
770-512-0070 - Fax
rtaylor@gilsonathans.com
www.gilsonathans.com

The Appellate Court found that the evidence supported the State Board

of Worker’s Compensation’s denial of benefits to the claimant

ABF Freight System, Inc. v. Presley

(Georgia Court of Appeals)

Employee not entitled to additional benefits because he could not establish he had sustained a “fictional new accident,” but rather had merely had a “change in condition.”

Summary

Employee had to prove right knee problems were a result of a fictional new injury, rather than a change in condition arising out of normal life.  He failed to prove a new injury, so not entitled to benefits.

Discussion

Mr. Presley worked for ABF Freight System, Inc. as a truck driver and dock worker.  He sustained a compensable injury to his right knee, had surgery, and received temporary total disability (“TTD”) benefits during his absence from work.  He later returned to work without restrictions or limitations and continued to perform his normal job duties.  However, his right knee pain worsened and he was diagnosed with arthritis in the knee and was advised that he would eventually need a right knee replacement.

Mr. Presley also sustained a compensable job-related injury to his left knee, had surgery and again ultimately returned to work without restrictions or limitations and resumed his normal duties.  His right knee pain continued to worsen following his left knee surgery.  He had apparently suffered a tear of the medial meniscus to his left knee but continued his normal job duties even as his right knee pain worsened.

After an additional year of continuing to work in his regular job duties following his left meniscal tear, the doctor informed Mr. Presley that a total right knee replacement was necessary.  Mr. Presley had the surgery and was placed on a “no work” status and sought payment of TTD benefits, arguing that he had sustained a fictional new injury.  ABF argued that it was a change in condition for the worse, and the right knee condition and it was not compensable.

Whether an employee suffers a fictional new injury or change in condition is a question of fact for determination by the administrative law judge (“ALJ”).  In this case, the ALJ denied benefits, finding that Mr. Presley did not suffer fictional new injury and that the two-year statute of limitation barred his claim since he had last received TTD benefits for his right knee more than years prior.  On appeal, the State Board adopted that decision.

The parties agreed that there was no singular specific incident creating an immediate need for Presley’s total right knee replacement.  Instead, the dispute was whether Presley’s total temporary disability arising from his right knee replacement should be characterized as a fictional new accident or a change in condition for the worse.

A fictional new injury, or aggravation of a pre-existing condition, occurs when a “claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing work subsequent to his injury.” Central State Hospital v. James, 147 Ga. App. 308, 309, 248 S.E.2d 678 (Ga. App. 1978). 

A change in physical condition, on the other hand, occurs when a claimant sustains an injury and is awarded compensation during his period of disability.  Subsequent thereto, the employee returns to employment performing his normal duties or ordinary work.  Then as a result of the wear and tear, ordinary life and the activity connected with performing his normal duties and not because of any specific job-related incident, his condition gradually worsens to the point where he can no longer continue to perform his ordinary work. 

Ordinarily, the distinguishing feature that determines whether that disability is either “a change of condition” or a “fictional new accident” is the intervention of new circumstances.  Whether an employee suffers a fictional new accident or a change in condition is a question of fact to be determined by the ALJ.  In this case, the Appellate Court found that under the “any evidence rule” the findings of the State Board and the ALJ had to be affirmed.

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ABOUT THE AUTHOR

The article was written by Rayford H. Taylor, Esq., Of Counsel to Gilson Athans P.C., a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and all other liability and commercial matters.  Mr. Taylor is admitted to practice law in Florida and Georgia and is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive.  Taylor and Gilson Athans are members of The National Workers’ Compensation Defense Network (NWCDN).  The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.