Change of condition; Fictional New Date of Accident

What happens when an employee is hurt on the job, comes back, but then goes back out because of the work injury?  The problem that presents is itself is whether the reason for the disability is a “change of condition” of the previous injury or a “fictional new date of accident”.  The distinction can be confusing and may have an impact on whether the employee has a statute of limitation problem.  Generally, a “change in condition” occurs when the injured worker demonstrates a change in the wage-earning capacity, physical condition, or employee status after original injury (established by award or otherwise).  O.C.G.A. § 34-9-104 (a); Atlanta Hilton & Towers v. Gaither, 210 Ga. App. 343, 436 S.E.2d 71 (1993). See also Aldrich v. City of Lumber City, 273 Ga. 461, 542 S.E.2d 102 (2001). See ABB Risk Management Service/Georgia Kaolin v. Lord, 254 Ga. App. 88, 561 S.E.2d 225 (2002).  An injured worker must be careful in these situations as a few statutes of limitations may be triggered for restarting income benefits, or even formally accepting the claim.  See, O.C.G.A. §34-9-104 and 82. In some cases, an injured employee who sustains a job-related injury may continue to work until her condition forces her to cease work because of gradual worsening of her physical condition.  The Georgia law will generally consider the date she stopped working as a “fictional new date of accident.”  Central State Hospital v. James, 147 Ga. App. 308 (1978).  These fictional new date of accident cases do not involve a new “traumatic” injury.  This scenario is analogous to the “straw that broke the camel’s back” story. If...

If I had a beer shortly before my work injury, am I barred from receiving workers’ compensation benefits?

Generally, no compensation is allowed for an injury or death due to an employee’s “willful misconduct.”  O.C.G.A. §34-9-17.   Moreover, if the injury or death of the employee is due to alcohol intoxication or being under the influence of marijuana or other controlled substances, then there may be a “rebuttable presumption” that the injured worker is not entitled to workers’ compensation benefits. HOWEVER, merely ingesting an intoxicating liquor, even being “under the influence” to a degree is not a complete bar to workers’ compensation benefits.  The injured worker must be able to prove he or she was not “intoxicated” and the alleged “intoxication” was not the legal cause of the injury. These cases are very technical and fact specific.  Predictably, the workers’ compensation insurance company will likely take a hard line stance in these cases.  However, injured workers can win these cases.  For a free consultation, please contact the Ramos Law...

Does an injured worker have the right to a second opinion or independent medical evaluation?

Generally, an employee has the right to one independent medical examination with a physician of the injured worker’s choosing.  The doctor must be in Georgia or within 50 miles of the injured worker’s residence.  This second opinion or independent medical evaluation will be at the expense of the Employer and Insurance Company.  However, the second evaluation must take place within 120 days of the injured worker’s receipt of income benefits.  Additionally, written notice of the evaluation must be made in advance of the examination.  The Employer and the Insurance Company’s liability for repeat diagnostics may be limited to $250.  See, O.C.G.A. §34-9-202 If you have been injured on the job and have received weekly income benefits, you may be eligible for a free second opinion or independent medical examination.  Contact the Ramos Law Firm, if you believe you need assistance in securing this medical right under the Workers’ Compensation...

Messing up my workers’ compensation case

Recently, I had a Piedmont Hospital employee ask me how most clients “mess up” their workers’ compensation case.  After some thought, I advised her that the most common issue clients have is not accurately or comprehensively reporting the accident AND injuries to their supervisors.  I advise some employees hurt at work to take a moment and actually write down what happened for themselves. These employees should keep in their detailed diary or journal: what happened; the time and date it happened; the names of the witnesses; the people involved; what caused the accident; all the injuries which resulted from the accident; who the hurt worker’s supervisor was at the time; what the supervisor told the injured employee as to medical treatment and job status; medical instructions given by the doctor; and the identity of all the doctors he has seen relating to the accident. The judge will put a lot of emphasis on the initial reports of the accident. Also, a sure fire way to mess up your case is to miss doctors appointments.  By doing this, the State Board of Workers’ Compensation will think that you do not need medical treatment and that you have no disability.  On the same token, the injured employee should not exaggerate, nor should he hide, the pain and limitations that has resulted from the work injury.  Again, I recommend keeping a journal or diary with the injured workers to document the type of pains he is having.  Many of my clients will say, “I forgot to tell the doctor about . . .”  It is best to come into the medical appointment...