Trial Notebook: Change in Condition (Workers Compensation)

An invalid notice to controvert does not bar an employer from inserting a change of condition. See Sadie G. Mays Memorial Nursing Home v. Freeman, 163 Ga. App. 557, 295 S.E.2d 340 (1982). See also Fallin v. Merit Maintenance & Welding, Inc., 283 Ga. App. 485, 642 S.E. 2d 122 (2007).

Camera man for WAGA suffered a workers' compensation injury. He had to have hip replacement. Returned to work on a limited basis. Was laid off with several other people. Employer started temporary total disability payments again. Yang started his own business and brought in income over an eight year period of around $526,000.00, but testified that he made no income. Employer and insurer (Traveler's Insurance Company) sought a change in condition to reduce benefits to the temporary partial rate. The administrative law judge and full board concluded that Yang had not been totally disabled and in fact had been working since 1991. He was therefore entitled to temporary partial instead of temporary total disability payments. Even though a corporation or an employee makes no money, if he is able to work, then he would be entitled to some sort of temporary partial disability payments. Court of Appeals held that Smith v. Lockheed Georgia Company, 185 Ga. App. 869, 366 S.E.2d 178 (1988) did not apply. See, WAGA-TV, Inc. v. Yang, 256 Ga. App. 224, 568 S.E.2d 58 (2002).

Aggravation and New Accident

An aggravation of pre-existing medical condition does not entitle claimant to receive benefits for aggravation indefinitely. Robyn Kiker filed a workers' compensation claim against Big Lots alleging her work for the company aggravated her pre-existing back condition. In 2004 Kiker was awarded benefits. In 2009 Big Lots requested a hearing seeking to suspend Kiker's benefits on the grounds that her aggravation has ended and the Kiker had returned to her pre-aggravation state. In March 2009 the ALJ ruled in favor of Big Lots, the Superior Court reversed. The Court of Appeals reversed the Superior Court relying on O.C.G.A. § 34-9-104(a) and a 1947 decision holding that the proper legal standard is whether there is evidence to establish that there had been a change in Kiker's condition since it had last been established by award or otherwise. Big Lots v. Kiker, 304 Ga. App. 190, 695. S.E.2d 710 (2010).

Beers Construction Co. v. Stephens, 162 Ga. App. 87, 290 S.E.2d 181 (1982); Slattery v. Hufstetler, 161 Ga. App. 389, 288 S.E.2d 654 (1982); Certain v. US F&G, 153 Ga. App. 715, 266 S.E.2d 351 (1980); Blackwell v. Liberty Mutual Insurance Co., 230 Ga. 174, 196 S.E.2d 129 (1973); Hampton v. Howard Beer, Inc. 172 Ga. App. 513, 323 S.E.2d 701 (1984).

Attempt of Employer to Suspend without Job Offer Noting there are Jobs Available

No specific job offer need be shown, see Scandrett v. Talmadge Farms, 174 Ga. App. 547, 330 S.E.2d 772 (1985), Pierce v. AAA Cabinets, 173 Ga. App. 463, 326 S.E.2d 575 (1985). Ability to return to work was emphasized because of continuing restrictions. See West. Point Pepperell v. Adams, 152 Ga. App. 3, 262 S.E.2d 212 (1979) Zurich American Insurance Co. v. Drives, 143 Ga. App. 232, 237 S.E.2d 726 (1977), Hopper v. Continental Insurance Co., 121 Ga. App. 850, 176 S.E.2d 109 (1970), Sadie Mayes Memorial Nursing Home v. Freeman, 163 Ga. App. 557, 295 S.E.2d 340 (1982), Hercules, Inc. v. Adams, 143 Ga. App. 91, 237 S.E.2d 631 (1977).

Claimant is Fired While on Light Duty: Duty to Secure Other Employment

Where a claimant is injured in a Worker's Compensation accident and then returns to work each time doing light duty, but is fired later for continued absenteeism and cannot secure other employment, the burden is placed on the claimant to show that his inability to secure suitable employment elsewhere was approximately caused by his previous accidental injury. See Georgia Power Company v. Brown, 169 Ga. App. 325, 309 S.E.2d 159 (1983). See also Hartford Accident & Indemnity Company v. Bristol, 242 Ga. App. 287, 248 S.E.2d 661 (1978).

Change in Condition: Change for the better (stopping weekly benefits)

Claimant medical records were sent to Dr. Thomas Dobson who reviewed the records and issued the opinion that claimants 2002 date of accident had changed for the better and that her current condition as of 2009 was not related to her 2002 injury because she had a pre-existing back problem and in his opinion, her condition was no longer related to the 2002 aggravation. The superior court reversed continuing that the change of condition for the better had not occurred after an established Award or otherwise. The court of appeals gave little heed to that position and basically said that the subsequent agreement for change of position was not an Award as contemplated under the Workers' Compensation Act.

The Court of Appeals held that evidence supported determination that claimant's bank injury has resolved itself and ceased to be the cause of her back related injury, therefore not entitled to medical treatment benefits. Big Lots, et al. v. Kiker, 304 Ga. App. 190, 695, S.E.2d 710 (2010)

Change in Condition: Surveillance

Employer and insurer attempted to show a change of condition because they caught an employee at apartment complex. Employee said that he made no more than $100.00 and this was for gas money. He said he was friends with the manager of the complex and that his children lived over there. That is why he spent a lot of time over there. Apparently the employer did a labor market survey performed by the rehabilitation supplier. The court of appeals adopted the following from the ALJ's conclusion: "No evidence that any of these jobs are actually available to the employee or that the employee was informed of the jobs." See Freeman, Supra; Sadie G. Mays Memorial Nursing Home v. Freeman, 163 Ga. App. 557, 295 S.E.2d 340 (1982) all cited in John W. Rooker and Associates v. Patterson, 276 Ga. App. 410, 623 S.E.2d 258 (2005).

Change in Condition v. New Accident

Claimant received a compensable back injury on November 28, 1983 and was given light duty work. The plant was sold to Douglasville Spinners on June 23, 1986 and Spinners increased the work hours which the claimant could not do. Before the sale, claimant had asked for a change in condition hearing.

The court, citing Beers Construction Co v. Stephens, 162 Ga. App. 87 (2), 290 S.E.2d 181 (1982); Certain v. US Fidelity, 153 Ga. App. 571, 266 S.E. 2d 263 (1980); and Hartford Accident v. Troglin, 148 Ga. App. 715, 252 S.E.2d 213 (1979), found that the claimants "clearly and undisputedly shows that the claimant's condition was not affected by … more strenuous, aggravating, supra normal work at the second employer but was undisputedly related only to the previous injury," and called it a change in condition. DeSoto Falls, Inc. v. Brown, 187 Ga. App. 830, 371 S.E. 2d 462 (1988).

There can be no chance in condition unless employee has previously received income benefits. Subsequent disability is not new injury unless there is actual worsening of employee's condition due to continuing work activities. Trucks, Inc. v. Trowell, 302 Ga. App. 488, 690 S.E.2d 880 (2010).

Where claimant hurts self on August 19, 1985 but does not go out from work until November 20, 1985. Court of Appeals held that "new accident" occurred on the date claimant was forced to quit work. The case did not make a determination of the running of any statute of limitations before casting responsibility on the new carrier, the carrier of August 21, 1985. See Maryland Casualty Co. v. Walls, 184 Ga. App. 267, 361 S.E.2d 253 (1987).

"An award of compensation has been held to be justified when claimant sustains a second accident as the result of a specific job related incident which aggravates a pre-existing condition which results from a prior accident. In these circumstances the second accident is a new injury, if the second accident at least partially precipitated the claimant's disability." See Aetna Casualty Co. v. Cagle, 106 Ga. App. 440, 126 S.E. 2d 907 (1962); and Fairfield Plantation v. Palmer, 173 Ga. App. 619, 327 S.E.2d 580 (1985).

A new accident occurs even where the claimant was immediately disabled or continues to work after the second accident and his condition gradually worsened. See Pacific Employers Insurance Co. v. Ivy, 118 Ga. App. 299, 163 S.E.2d 435 (1968).

A claim for compensation for an injury is not filed within one year from the date of the concurrent of the legal requirements of an original accident to the employee and notice thereof to the employer and where subsequent disability has allegedly resulted from the aggravation of the injury received in the original accident attributable to the employee's continuing to work. See Mason, Inc. v. Gregory, 161 Ga. App. 125, 291 S.E. 2d 30 (1982); St. Paul Fire & Marine v. Norman, 173 Ga. App. 198, 325 S.E.2d 810 (1984).

A change in condition was not found as would be under the James decision. This case appears to reverse the James decision.

Where the State Board of Workers' Compensation reverses the administrative law Judge and finds a new injury as opposed to a change of condition. See Royal Globe Ins. Co. v. Hartford Ins. Co., 332 S.E.2d 387, 332 S.E.2d 387 (1985).

Evidence as to whether a change in condition or a new injury occurs in a workers' compensation case is a question of fact and the Superior Court and the Court of Appeals are bound by the any evidence rule. See Cypress Companies v. Brown, 246 Ga. App. 804, 542 S.E.2d 544 (2000).

A distinguishing between: When a claimant sustains an injury, is awarded compensation, returns to his normal and ordinary job duties, but then as a result of "the wear and tear of ordinary life and the activity connected with performing his normal duties," his condition gradually deteriorates to where he cannot continue to perform his ordinary work, such facts constitute a change in condition and not a new accident. On the other hand, when a claimant is injured on the job but continues, without an agreement or Award, to perform the duties of his employment until forced to cease work because of a gradual worsening of his condition that is at least partially attributable to his physical activities in continuing to work, such facts constitute a "new accident." See Central State Hosp. v. James, 147 Ga. App. 308, 248 S.E.2d 678 (1978).

In Footstar, Inc. d/b/a Meldisco Shoe-Mart, et al. v. Stevens, Ms. Stevens suffered an injury during a period that Travelers Insurance Company provided coverage. Later Liberty Mutual Insurance Company replaced Travelers as the workers' compensation carrier.

After Liberty Mutual took over coverage, Travelers requested a hearing to determine who would bear responsibility for Claimant's treatment. Judge Stenger in Savannah, Georgia decided that Travelers was responsible. In other words, at that time there was an Award for medical only payments by Judge Stenger.

Later, claimant was placed on light duty work and was told that she would be discharged pursuant to the policies of the company. Again the case went to a hearing and at this time the judge concluded that there was a fictional new accident and awarded damages against Liberty. This was appealed to the full Board who reversed holding that there had been a change of condition.

The Court of Appeals basically felt that an award of medical expenses is an award of compensation within the meaning of the Workers' Compensation Act. See Chevrolet Div., General Motors Corporation v. Dempsey, 212 Ga. 560, 93 S.E.2d 703 (1956).

The Board relief heavily on the initial Award by Judge Stenger of December 18, 2001 (the initial Award).

The Court of Appeals says there was a distinction from the following cases which may be important to us in later research: Smith v. Mr. Sweeper Stores, 247 Ga. App. 726, 544 S.E.2d 758 (2001), Wier v. Skyline Messenger Service, 203 Ga. App. 673, 417 S.E.2d 693 (1992) and finally, Northbrook Property and Casualty Ins. Co. v. Babyak, 186 Ga. App. 339, 367 S.E.2d 567 (1988).

This case gives a new twist on the change of condition vs. new accident issue. This is a two insurance company case. Travelers is the first insurer and Liberty Mutual is the second. Claimant suffered an injury at work but continued to work while under the coverage with Travelers. Before claimant went out of work, the new insurance company, Liberty, asked for a hearing in which it was found by Judge Stenger that Travelers was required to pay medical expenses. Claimant was then released to light-duty work and the employer gave 30 days' notice. Travelers and Liberty then "duked it out" over who is going to start benefits. Even though claimant did not lose time during the period of Travelers' coverage, the Court of Appeals and full Board pinned the responsibility for temporary total disability benefits onto Travelers because of the Award of Judge Stenger even though it was basically a medical-only Award. Footstar, Inc. d/b/a Meldisco Shoe-Mart, et al. v. Stevens, 275 Ga. App. 329, 620 S.E.2d 588 (2005).

"Whether the evidence in a workers' compensation case establishes a change in condition or a new injury is a question of fact, and we are bound by the any-evidence rule." Cypress Companies v. Brown, 246 Ga. App. 804, 542 S.E.2d 544 (2000). The law on change of condition vs. new injury is as follows: "When a claimant sustains an injury, is awarded compensation, returns to his normal and ordinary job duties, but then as a result of the 'wear and tear of ordinary life and the activity connected with performing his normal duties,' his condition gradually deteriorates to where he cannot continue to perform his ordinary work, such facts constitute a change in condition and not a new accident. On the other hand, when claimant is injured on the job but continues, without an agreement or award, to perform the duties of his employment until forced to cease work because of a gradual worsening of his condition that is at least partly attributable to his physical activity in continuing to work, such facts constitute a 'new accident'". See Central State Hospital v. James, 147 Ga. App. 308, 248 S.E.2d 678 (1978).

"The Workers' Compensation Act is a humanitarian measure which should be liberally construed to effectuate its purpose." City of Waycross v. Holmes, 272 Ga. 488, 532 S.E.2d 90 (2000).

"An award of medical expenses is an award of compensation within the meaning of the Georgia Workers' Compensation Act." See Chevrolet Div., General Motors Corp. v. Dempsey, 212 Ga. 560, 93 S.E.2d 703 (1956).

For decisions that may hold otherwise see Smith v. Mr. Sweeper Stores, 247 Ga. App. 726, 544 S.E.2d 758 (2001), Wier v. Skyline Messenger Svs., 203 Ga. App. 673, 417 S.E.2d 693 (1992), Northbrook Property & Casualty. Ins. Co. v. Babyak, 186 Ga. App. 339, 367 S.E.2d 567 (1988).

Employee changes job—Georgia Pacific Corp. v. Sanders, 171 Ga. App. 799, 320 S.E.2d 850 (1984).

Claimant injured his back and a rehab specialist obtained new work from him under an alleged agreement that the old insurer would pick up coverage if claimant reinjured himself. Court of appeals leaves the issue of estoppel to determine if new carrier and employer would be responsible based upon representations made by rehab. See Southern Fried Chicken v. Thermo King Corp., 172 Ga. App. 454, 232 S.E.2d 291 (1984).

Change in Condition (Weeks)

"A change of condition for the better may be shown by an actual return to work, a medical release to return to work, or other evidence that indicates an ability to work." First Southern Ins. Co. v. Brock, 190 Ga. App. 515, 379 S.E.2d 427 (1989).

An employer may terminate disability benefits only by showing that the employee has the ability to return to work and that work suitable for the employee's restrictions is available. Peterson/Puritan, Inc. v. Day, 157 Ga. App. 827, 278 S.E.2d 674 (1981).

In this case, testimony before Judge Weeks of a job specialist indicated there were six job openings. Judge Weeks found that the employer/self-insurer had not proved that work suitable to the employee taking into account her restrictions is available. She found that the employer/insurer had not proved by a preponderance of evidence that employee had undergone a change in condition for the better. She stated that change in condition is defined as a change in the wage-earning capacity, physician 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 of the Board or otherwise. There was insufficient evidence to show that the six employers had ever considered the employee for employment and insufficient evidence that these depicted employers would offer a job taking into account her physical conditions and limitations.

Employee Fired

Even though an employee is fired because he violated company policies, he is still entitled to benefits if he is doing light duty. See Augusta Coca Cola Bottling Co v. Carter, 172 Ga. App. 195, 322 S.E.2d 365 (1984).

Injury/New Injury

Generally when an employee sustains an injury while one insurance carrier provides coverage and the condition brought about by the accident gradually worsens because of aggravation over a period of time so that the employee is eventually required to terminate his employment because of disability at a time when another insurance company has assumed coverage a new injury is held to have occurred on the date that the claimant was unable to continue his employment. Hartford Insurance Group v. Stewart, 147 Ga. App. 733, 250 S.E.2d 184 (1978).

Where two insurance companies are fighting over coverage issues and it does not appear to affect the payment of benefits to the claimant. O.C.G.A. § 34-9-221(h) does not seem to apply. See Columbus Intermediate Care Home v. Johnson, 196 Ga. App. 516, 396 S.E.2d 268 (1990).

All cited in TIG Specialty Insurance Company v. Dust-Away, Inc., 283 Ga. App. 445, 641 S.E. 2d 684 (2007).

If a claimant injures his back and receives back surgery and spinal fusion and returns to the employer on light duty and subsequently claimant reinjured his back while reaching up suddenly to grab a boar to prevent it from tipping over into the water, the court found that claimant sustained a second accident as a result of a specific job-related incident which aggravated a pre-existing condition. Therefore, the new carrier would be responsible for the new accident versus change in condition. See Fairfield Plantation v. Farmer, 173 Ga. App. 619, 327 S.E.2d 580 (1985).

Language

Language on what constitutes a change. See Jarallah v. Pickett Suite Hotel, 204 Ga. App. 684, 420 S.E.2d 366 (1992).

Prior Condition v. Present Condition

It must be determined that the present condition is better than the prior condition and there must be such a finding in the record. See Dalton Junior College v. Bradley, 184 Ga. App. 571, 362 S.E.2d 137 (1987).

Private Investigator

The Court of Appeals reversed the finding of an Administrative Law Judge and the State Board when the Board ruled that a claimant who had been seen working with a chainsaw and post-hole driver was not able to return to work.

The Court went on to hold that "had it been, then the Board would never be authorized to rule in favor of an employer on a change in condition claim without the concurrence of the claimant and/or his treating physician," the Board having concluded that the claimant did not state he had actually returned to work and he had been certified by his treating physician as being able to return to work. First Southern Insurance Company v. Brock, 190 Ga. App. 515, 379 S.E.2d 427 (1985).

Refusal of Light Duty

Claimant was offered a job as a courier after losing his arm in a compensable injury. He refuses the job because the working conditions are the same as the previous job in the shipping room which were unsatisfactory because of his prosthetic arm. The Board said refusal was justified because the position offered him no challenge and no room for advancement.

"If an injured employee refuses employment procured for him and suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified." See Clark v. Georgia Kraft Co. 178 Ga. App. 884, 345 S.E.2d 61 (1986). See O.C.G.A. § 34-9-240.

Return to Work

Where a claimant injures himself but then becomes able to return to work, his employer need not offer work if he is able to return to normal work. See McDonald v. Townsend, 175 Ga. App. 811, 334 S.E.2d 723 (1985).

Where evidence is adduced from doctors and/or other evidence that a claimant can return to normal work as opposed to light duty work, there is no duty upon the employer and insurer to show in addition to the ability to return to work that suitable work is available. This case is a distinction of the Peterson-Puritan, Inc. v. Day, 157 Ga. App. 827, 278 S.E.2d 674 (1981). See Pierce v. AAA Cabinet Company, 173 Ga. App. 463, 326 S.E.2d 575 (1985). See also, McDonald, et al v. Townsend, 175 Ga. App. 811, 334 S.E.2d 723 (1985).

Where No Job Offered

Claimant injures self as a result of being attacked. Suffers psychological problems. Receiving temporary total disability benefits. Employer seeks suspension of benefits based on change of condition. Used expert. There was no real job offer. Expert - Susan Price testified ten suitable jobs available but could not identify job offer. Court of Appeals holds and supports Board that employer did not meet burden. Case does not actually require a showing of specific job offer. Problem case involving TTD then suspension with no job offer. See Korner v. Education Management Corporation, et al., 281 Ga. App. 322, 635 S.E.2d 892 (2006).

Change of Condition to Normal Work

The employer/insurer are not required to provide work to a claimant who can return to "normal work". See Pierce v. AAA Cabinet Company, 173 Ga. App. 463, 326 S.E.2d 575 (1985).

Change of Condition—75 Weeks after D/A

See Dunaway v. R.I.A.S., Inc., 176 Ga. App. 181, 335 S.E.2d 470 (1985).

Loss of Vision, PPD Rating to Eye

Prior injury and loss of use of the eye must be taken into account. Use basis of corrected vision prior to accident as compared to vision subsequent to accident to determine PPD. Dunn v. Hartford Accident & Indemnity Co., et al, 81 Ga. App. 283, 58 S.E.2d 245 (1950).

It was decided that if a claimant could take advantage of corrected vision prior to an accident, then an employer could take advantage of corrected vision subsequent to accident to determine PPD. Georgia Casualty & Surety, et al v. Wesby, 119 Ga. App. 545, 168 S.E.2d 191 (1969).

This case combined the two above. It was determined that is a claimant wore glasses prior to accident, then basis should be corrected vision prior to accident compared to corrected vision subsequent to accident. However, if claimant did not wear glasses prior to accident, then basis should be uncorrected vision prior to accident compared to uncorrected vision subsequent to accident. Georgia Casualty & Surety, et al v. Speller, 122 Ga. App. 459, 177 S.E.2d 491 (1970).

Should determine PPD by basing uncorrected vision prior to accident to uncorrected vision subsequent to accident in all cases. It was also found that a lens implant served the same purposes as glasses. Lee Connell Construction Co., et al v. Swann, 175 Ga. App. 12, 333 S.E.2d 450 (1985).

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