In workers’ compensation claims, we sometimes come across a situation where an employee injures himself or herself and then returns to work for the same employer.
In workers’ compensation claims, we sometimes come across a situation where an employee injures himself or herself and then returns to work for the same employer. Sometimes we are just lucky enough to be able to offer them suitable, light-duty work – if the treating doctor has issued work restrictions.
But what happens when this employee continues working, but at some point stops working claiming that they can no longer work as a result of pain from the original work accident. This situation is where the “fictional, new accident” theory can come into play, and the employer will be responsible for this new accident.
So how can we defend against these fictional, new accidents? This article provides a brief introduction to this topic and touches on potential defenses and arguments when bringing an employee back to light-duty work, and they eventually claim to have suffered a fictional, new accident. It also notes a primary distinction between the “new” accident and a change in condition claim.
Formally defining a Fictional, New accident
Georgia Courts have held that when an employee sustains an injury, but returns to work and ultimately ceases working because of an aggravation of a pre-existing condition due to post-injury work activities, he may be deemed to have sustained a “new accident” as of the date he ceased working. Mallory v. American Casualty Co., 114 Ga. App. 641, 152 S.E.2d 592 (1966). Further, the Courts have held that when an employee sustains a work injury, returns to work with his employer, and thereafter experiences a deterioration of his initial injury to the point he becomes disabled, the date of the “new accident” is the date the disability manifests. Central State Hospital v. James, 147 Ga. App. 308 (Ga. Ct. App. 1978).
There are several defenses one can argue when defending against fictional, new accidents – after you have brought an employee back to work – and they may be applicable depending on the situation you find yourself in.
There is no event which triggers the Fictional, New Accident.
One option is to argue that there was never a change in the Claimant’s employment circumstances/work duties since they returned to work, so there was no event that triggered an increase in pain or disability. One way to make this argument is through witness testimony or a job description showing that the Claimant’s light-duty job never changed. Of course, if the Claimant admits that his or her job duties were the same and never changed – that would be the most ideal option.
Another way to make this argument is by showing a lack of documentation in the medical records revealing increased pain on the Claimant’s part, or timesheets indicating that the Claimant never missed anytime because of pain. A method that we recently used in Court was to actually show the Judge the Claimant’s lack of medical treatment totaling a few months wherein he did not seek any treatment prior to claiming a fictional, new accident. This gesture indicated to the Judge that the Claimant did not sustain an increase in pain or disability forcing him to stop working because if he had been in pain, clearly, he would have sought medical treatment.
The Claimant claims a new accident following a termination.
Sometimes, we will see a Claimant claim a new accident following a termination. Once an employee is fired, he or she may lash out at the employer stating that the termination was the result of an alleged new accident – as was the case in the recent claim we successfully tried. In this situation, a strong defense is to argue that the termination was solely for cause and not because of any alleged new accident. In this case, one would argue that the Claimant was terminated for poor work habits, bad behavior, tardiness, etc., and one should emphasize that there was never an event or situation wherein the Claimant had to cease working as a result of pain from the original work injury.
Other options to defend an employer against a new accident in this situation is to emphasize that the Claimant would still be employed if they were not terminated for cause, and that they essentially caused their own termination. One may also want to note that the employer saw the Claimant through the original work accident, and brought him or her back to work. These points will tell the Judge that we, the employer, were not searching for reasons to terminate the Claimant.
Distinction from a Change in Condition
One very significant distinction between a fictional, new accident and a change in condition is whether indemnity benefits have been paid. If no disability benefits have been paid, then there cannot be a change in condition because the original condition has never been established. Cypress Cos. v. Brown, 246 Ga. App. 804, 806 (Ga. Ct. App. 2000).
Additionally, payment of medical expenses alone does not force an employer to accept the claim as compensable, and it does not mean that a later claim for disability is a change in condition. Roberson v. Hartford Acci. & Indem. Co., 141 Ga. App. 558 (Ga. Ct. App. 1977). So one can see that this issue comes into play depending on the specific events following the first accident and what was or was not paid.
In dealing with fictional, new accidents, they can become messy, as well as tricky. Even case law indicates that there is really no “bright line” test as to whether an aggravation will be deemed a “new” accident. Thus, when a potential fictional, new accident issue arises one must examine the facts and pay close attention to the medical records, job duties of the Claimant, and the employment relationship the Claimant has with the employer.