Distinguishing Between Fictional New Accidents, Changes In Condition, And Super-Added Injuries

A recent decision from the Georgia Court of Appeals, ABF Freight Systems v. Presley, 330 Ga. App. 885 (2015), illustrates how difficult it can sometimes be to distinguish between fictional new accidents, changes in condition, and super-added injuries. These types of cases are usually complicated, and it is often a close call as to which category a particular claim falls into.

Presley injured his right knee at work in June 2009. He had surgery, was out of work for three months, and received income benefits during that time. He then returned to his normal job, and in December 2009, sustained a work-related injury to his left knee. He had surgery on the left knee, was out of work again for three months, and again received weekly income benefits. While treating for the left knee injury, his right knee continued to get worse, and he was told that he would eventually need his right knee replaced. Over the next couple of years, he treated for ongoing problems with both knees, receiving a series of injections, but continuing to work his normal job. In June 2012, he finally underwent the right total knee replacement and was placed on a no work status. He subsequently filed a claim seeking TTD benefits. The issue before the Board was whether Presley’s disability should be characterized as a fictional new accident, a change in condition, or super-added injury.

A “fictional new accident” occurs when an employee is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury. A “change in condition,” on the other hand, occurs when an employee sustains an injury, receives income benefits during a period of disability, returns to employment and then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties, has a gradual worsening in his condition to the point that he can no longer perform his ordinary work. The distinguishing feature is ordinarily whether there was an intervention of new circumstances.

In Presley’s case, the ALJ found that there were no new or different circumstances concerning Presley’s job duties, and his claim was therefore characterized as a change in condition rather than a fictional new accident. On appeal, the Superior Court reversed, finding that the left knee injury presented new circumstances that may have contributed to the worsening of the right knee. The Court of Appeals reversed the Superior Court, finding that the Board had already considered that issue when it rejected Presley’s argument that his right knee injury was a super-added injury to his left knee. A “super-added injury” occurs when an employee sustains an injury to one body part and then subsequently suffers a disabling injury to another body part as a natural consequence of the original injury.

How a particular injury is characterized can have major consequences. A change in condition relates back to the original date of injury, and if more than two years have expired since income benefits were last paid, O.C.G.A § 34-9-104 bars the further receipt of income benefits. Likewise, a super-added injury also relates back to the original date of accident for statute of limitation purposes. A fictional new accident, on the other hand, results in an entirely new accident date, thereby avoiding the statute of limitations problem and restarting the 400-week cap.

Distinguishing between these three terms of art can be challenging, and it is often difficult to anticipate how a judge may rule in any particular case. The attorneys at Hall Booth Smith, P.C., have extensive experience in handling these types of cases; and we welcome the opportunity to assist with any questions or concerns that you may have.

Written by: Brian Mallow, Esq.