The workers compensation Act is most successful in its application when an injured worker receives all necessary and related medical treatment needed to return the employee back to his pre-injury state that allows him to pursue gainful employment. Ideally, the employee’s condition is restored so far as he is capable of performing the same pre-injury work duties for the same employer. In some circumstances, however, returning the employee to the pre-injury work duties can reaggravate the underlying condition that once took the employee out of work. In other circumstances, a new and separate incident within the course of employment occurs following the employees return to work, irrespective of the worker’s job duties, which also causes the employee to cease working once again. In both scenarios, the employee is forced to quit working – either from a gradual worsening of his condition or as a result of a specific new incident.
In the 2019 Court of Appeals case AZ Atlanta et al. v. Surge Staffing, LLC, et. al. the Court further clarified whether an employee’s return to work and the worsening of his condition due to his work duties should be characterized as a “fictional new injury” or the result of a “change in condition.” The implications of that determination may affect who is ultimately liable for the claimant’s workers’ compensation benefits. This is particularly true in situations where an employer procures a new insurer between the date of the initial injury and the time the employee ceases to work as a result of a worsening of his condition. That is because the date of disability for purposes of establishing liability for workers’ compensation benefits will depend on whether the injured employee is found to have sustained a fictional new injury or a change in condition. The Court in Surge Staffing explains those terms of art in greater detail.
In Surge Staffing, the claimant, Wilson, was employed by Surge Staffing, a temporary employment agency, who supplied employees to work for Apple Zebra, Inc. (“AZ Atlanta”). On April 30, 2014, Wilson was working for AZ Atlanta in their warehouse when he fell off of a pallet sustaining injuries to his elbow and back. He received conservative medical treatment and was assigned light duty work restrictions. Wilson returned to work the next day but was unable to perform his normal job duties.
Wilson was later assigned greater work restrictions from one of his authorized physicians in December 2014 that required him to perform “predominately sit-down type work.” Around the same time those restrictions were assigned, Wilson was transferred to a “gatehouse” position that required Wilson to walk “at least half of the time and to stand as drivers entered the facility.” Wilson worked in that position from December 2014 until he stopped working on July 22, 2015 after it was determined that his physical condition had worsened.
On the date of his April 30, 2014 accident, Surge Staffing was insured by Freestone Insurance Company (“Freestone”) although Freestone had since become insolvent. Surge Staffing was later insured by the Georgia Insurers Insolvency Pool. However, on July 22,2015, when Wilson stopped working, Surge was insured by Work First Casualty Company (“Work First”). At all relevant times, AZ Atlanta was insured by American Zurich Insurance Company.
Wilson filed a notice of claim for workers’ compensation benefits. At the hearing in from of an administrative law judge (“ALJ”), Surge Staffing argued that the April 30, 2014 claim was established once it had made payments to Wilson for his missed time from work to attend medical appointments. Surge Staffing also argued that there were “no new circumstances” in Wilson’s employment after the accident to support a finding of a fictional new injury. As such, Surge Staffing argued that the Georgia Insurers Insolvency Pool was liable for Wilson’s claims because Wilson only stopped working as a result of change in condition and not a fictional new injury.
The ALJ did not agree with Surge Staffing. Instead, the ALJ concluded that Wilson did sustain a fictional new injury on July 25, 2015 and both Surge Staffing and Work First were liable. The ALJ found that the payments made to Wilson to attend medical appointments following his 2014 injury were merely medical benefits. In addition, the ALJ found that Wilson’s post-injury job duties exceeded his work restrictions equivalent to new circumstances and supporting a finding of a fictional new injury. That determination was based on the evidence showing that Wilson was required to walk and stand for a significant amount of time and the objective changes seen between June 4, 2014 and August 24,2016 MRIs, establishing a worsening condition. On appeal, the Board approved.
The superior court reversed, finding that Surge Staffing’s voluntary payments to Wilson did establish an award for the April 30, 2014 accident and that the State Board applied an erroneous legal theory in analyzing whether the payments to Wilson could constitute income benefits for purposes of establishing an award. The superior court also determined that Wilson suffered a change of condition instead of a fictional new injury because there was no evidence in the record to show that Wilson’s post-injury work duties were more strenuous than his pre-injury work duties. The parties, in addition to American Zurich Insurance Company, filed applications for discretionary appeal, which were granted.
The parties asserted three enumerations of error, the first of which argued that the superior court erred by determining that Wilson suffered a change of condition and not a fictional new injury.
The Court of Appeals noted that a “change in condition” is defined as “a change in the wage-earning capacity, physical condition, or status of an employee[…], which change must have occurred after the date on which the wage-earning capacity, physical condition or status of the employee[…] was last established by award or otherwise.” Alternatively, “[a] new accident occurs when there is the intervention of new circumstances imposed upon the claimant.”
The Court provided three of the most common scenarios as examples to distinguish the difference between a change of condition and a fictional new injury:
- Employee is injured in the course of employment but continues to work in the same capacity until the employee ceases work due to the gradual worsening of his condition that is at least partly caused by continuing to work following his injury. This is deemed a fictional new accident, the date of which the injured employee’s disability manifests itself and is no longer able to continue working.
- Employee is involved in a second accident in the course of employment which aggravates a pre-existing condition that resulted from a prior accident. There being a specific accident directly attributing to the employee’s disability, it is easy to see that this scenario is deemed a new injury. This does require that the second incident be partially precipitated by the claimant’s disability resulting form the initial injury. The classification of this scenario as a new injury holds whether the injured employee is immediately disabled or if he continues to work and the employee’s condition worsens until he is forced to cease working.
- Employee sustains an injury in the course of employment and is awarded income benefits during the period of disability. Employee then returns to work performing “his normal duties or ordinary work.” As a result of the wear and tear of ordinary life and the activities of performing the normal duties required of his employment, the employee’s condition worsens to the point the employee can no longer perform his ordinary work. In this scenario, the gradual worsening would constitute a change in condition for the worse and not a new accident.
The most important distinction between scenario one and three in which an employee is injured and returns to work before a gradual worsening of his condition, is the award of benefits to the injured employee. In scenario one, the injured employee returns to work (without a prior award of benefits) and the gradual worsening of his condition that causes the injured employee to cease working is deemed a fictional new injury. Conversely, scenario three is deemed a change in condition based on the award of benefits for the period of disability prior to the employee’s return to work. Again, the only distinction between the two scenarios is the award of benefits which essentially converts an otherwise fictional new injury to be characterized as a change in condition.
Scenario two, on the other hand, requires a much simpler analysis. There is an initial injury, a return to work, and then a second distinct and wholly separate incident. This is characterized as a new injury even if the employee continues to work following the second incident wherein his condition ultimately worsens.
If the analysis was not confusing enough, the Court of Appeals added an additional wrinkle by concluding that an injured employee may suffer a fictional new injury irrespective of whether a prior award of benefits was issued. It stated that where there is no actual new accident, typically “the distinguishing feature that will characterize the disability as either a change of condition or a new accident is the intervention of new circumstances.” According to the Court, new circumstances can be found where the injured employee’s “condition worsened when the scope of work changed, or where a claimant worked in post-injury position that exceeded a physician’s work restrictions.” Therefore, the intervention of new circumstances following a return to work will establish a new a fictional new injury regardless of whether prior benefits have been awarded.
In Surge Staffing, the Court concluded that the evidence showed that Wilson suffered a fictional new injury on July 22, 2015 like scenario one discussed above. The evidence also showed that following Wilson’s return to work, his work duties required him to perform tasks exceeding the work restrictions he was assigned. In addition, the objective findings from the MRIs and the opinions of his treating physicians supported the view that Wilson’s condition was at least partially attributable to the work he performed after the initial injury.
The Court’s analysis determined that there being no prior award of benefits and the imposition of new circumstances firmly established a fictional new injury that occurred when the claimant ceased working on July 22, 2015. As such the Court found that Surge Staffing, and its insurer on that date, Work First were liable. The Court reversed the superior court and reinstated the State Board’s award of compensation.
Often, the analysis concerning the classification of an employee’s inability to return to work as a change of condition or fictional new injury is not as important when the the employer remains insured by the same insurer (or otherwise insured under the same policy) during the time of the initial injury and the worsening of the condition that forces the employee to cease working. Alternatively, as in Surge Staffing, the applicable date of injury could be the difference between no liability and responsibility for payment of income benefits and medical benefits for the life of the claim. The Court’s additional clarification between “change of condition” and “fictional new injury” can assist employers/insurers in determining how a court may rule when multiple insurers may be involved.
 Not officially reported.
 O.C.G.A. §34-9-104(a)(1).
 Citing R.R. Donnelley v. Ogletree, 312 Ga. App. 475, 478 (1) (718 S.E.2d 825) (2011).
 The Court of Appeals notes that the three scenarios discussed are not exclusive, but are merely are the scenarios that most frequently occur in the workers’ compensation context.
 Citing Evergreen Packaging, Inc. v. Prather, 318 Ga. App. 440, 444 (734 S.E.2d 209) (2012).
 Id.at 444-445.
 The Court of Appeals also addressed the Georgia Insurers Insolvency Pools arguments that superior court erred by: (1) finding that the payments paid to Wilson by Surge Staffing for time missed constituted income benefits to establish the 2014 claim; (2) by determination that Wilson suffered a change of condition on July 22, 2015; (3) that the superior court disregarded the “any evidence” standard. The Court agreed that the superior court erred by determining that Wilson suffered a change of condition and reversed the superior court’s order. Due to that holding, the Court believed it unnecessary to decide whether Surge Staffing’s voluntary payments to Wilson established “an award or otherwise” for purposes of determining whether Wilson suffered a change of condition.