In Georgia workers’ compensation cases, a “fictional new injury” occurs when an employee is injured on-the-job, but then continues to perform his or her work duties until he or she has to stop because the condition gradually worsens and, at least partially because he or she continued working after the injury.
This differs from what we understand to mean a “change in condition.” A fictional new injury is one in which duties performed at work after the initial injury actually served to make the injury worse.
This was the claim in Rosenburg Forest Products v. Barnes, recently before the Georgia Supreme Court.
According to court records, plaintiff suffered amputation of his leg just below the knee in a Georgia work accident back in 1993, when he worked at a plant that processed wood.
His employer and insurance company accepted the claim as catastrophic, and started paying TTD (temporary total disability) benefits to plaintiff. Five months after the accident, claimant received a prosthetic leg and started back to work, albeit on light duty.
Soon thereafter, employer halted TTD benefits and instead began paying PPD (permanent partial disability) benefits. Those continued for little more than four years.
The company was bought out by another firm in 2006 and, though plaintiff continued working there for almost three years, he was laid off in 2009. Two months after he was laid off, plaintiff went to a doctor on account of ongoing pain in his knee. Two years after that, he received a new prosthetic limb covered by the employer’s insurer.
Then in 2012, plaintiff filed a claim to re-start TTD benefits. At that time, he asserted 1993 as the date of his injury. But a couple months later, plaintiff filed a separate claim, saying he was now suffering a fictional new injury. The date of the injury, he stated, was the same as the date he was laid off.
The administrative law judge (ALJ) denied the claim, finding it was barred by OCGA 34-9-104(b) (2 years) and 34-9-82 (one year), which is the applicable statute of limitation.
However, the appellate court reversed, finding both of plaintiff’s claims weren’t time-barred. But then the Georgia Supreme Court reversed that opinion.
The decision came down to how we interpret statutes of limitations laws pertaining to Georgia workers’ compensation. What the state high court determined was that OCGA 34-9-104(b), holds that once an employer ends TTD benefits, the worker has two years to file a claim for additional TTD benefits. If the worker waits any longer than two years, the claim is going to be time-barred. In this case, employer stopped paying TTD in 1994. That means plaintiff had two years from that date to request more TTD. The court ruled this was true even though the injury was designated “catastrophic.” So while plaintiff had a right to receive weekly TTD benefits for his catastrophic injury until there was a change in condition, the only way he could enforce that right was to make a claim for benefits within two years of the last TTD payment his employer made.
Further, with regard to OCGA 34-9-82, the statute says the right to workers’ compensation is barred unless a claim is filed within one year of injury or within two years of the last payment of weekly benefits. For the fictional new injury, he had never been paid benefits, so he had one year from the date he was laid off to file. That would have meant he should have filed his claim by November 2010. But he didn’t file his claim until more than two years later. The court noted that just because claimant sought additional remedial treatment in 2011, that did not revive his claim or reset the clock on the statute of limitations.
For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-920-4708 .