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 you have been injured on the job and have recently stopped working, you may be entitled to workers’ compensation benefits.  For a free consultation, please contact the Ramos Law Firm.

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