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Has the Georgia Supreme Court Killed The Fictional New Injury?

In Scott v. Shaw Industries, Inc., S11G1815 (July 2, 2012), the Supreme Court agreed with the Court of Appeals that the “fictional new accident” concept does not apply if an employee suffers a compensable injury, receives worker’s compensation benefits, returns to work, and suffers a progressive worsening that causes them to cease work. Claimant was working as a carpet inspector when her foot became stuck in a carpet roller, causing partial amputation and lost work for 10 months. She received TTD benefits until she returned to work, but her injury and prosthesis caused her knee problems which ultimately resulted in her inability to work. The ALJ and Board found that she had sustained a fictional new injury, and the decision was affirmed by the Superior Court. Not so, said the Court of Appeals, and the Supreme Court agreed “under the specific facts of this case.”  Is this the end of the “new injury” or does this case firmly square with Central State Hosp. v. James, 147 Ga. App. 308 (1978)?

The answer is that you cannot go out of work and return doing your normal (or lighter) duties and claim a fictional new injury from ordinary wear and tear. The so-called “stoic worker” who continues to work is the one who benefits from the “new injury” by accident concept described in Mallory v. American Casualty Company, 114 Ga. App. 641 at 643 (1966). Thus an employee who continues to work after an injury doing his normal duties and is forced to cease work after experiencing a gradual worsening of his condition from ordinary wear and tear has sustained a “new injury.” On the other hand, the employee, like the carpet inspector in this case, who misses work and receives benefits, and returns to her normal work (or lighter, as in this case) and has a gradual worsening of her condition from ordinary wear and tear has experienced a change of condition.

But the facts of each case are vital to the determination of whether a new injury or change of condition has occurred, for the employee who goes out of work can still claim a new injury if he or she returns to work and the work is more strenuous than the original job or if a specific accident aggravates the injury. This was the case in R.R. Donnelley v. Ogletree, 312 Ga. App. 475 (2011), in which the employee went out of work for an injury and received benefits, but returned to work in positions that exceeded his light duty restrictions and caused him to again cease work. The carpet inspector in Scott simply could not say the same: she returned to a desk job in customer service that allowed her to sit or stand as needed.

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