Fictional New Injury vs. Change In Condition: A New Standard or Still a Blurry Line?

Two concepts that are often misunderstood and frequently the subject of litigation in Georgia are “fictional new injury” and “change in condition.”  A recent case that made its way through the Georgia appellate system, Scott v. Shaw Industries, Inc., illustrates how these concepts sometimes overlap and exposes the difficulty that courts often have in distinguishing between the two.

In 1996, Ms. Scott, who worked as a carpet inspector, got her foot caught in a carpet roller and suffered serious injuries requiring the partial amputation of her right foot.  She missed 10 months of work, during which time she received temporary total disability (TTD) benefits.  She returned to work in 1997, and worked the next 12 years in the employer’s customer service department.  Over the years, due to her altered gait, Scott developed problems with her knees, and in 2009, she ceased working upon the recommendation of her physician.Scott sought workers’ compensation benefits, arguing that she had experienced a fictional new injury in 2009.  The employer argued that her inability to work was the result of a change in condition, and as such, the two-year statute of limitations barred her claim for further income benefits.  The Board ruled in Scott’s favor, finding that she sustained a fictional new injury and was therefore eligible for benefits under a new 2009 date of accident.

The Court of Appeals reversed, holding that the distinguishing factor between a fictional new injury and change in condition is whether the claimant had previously received weekly disability benefits on account of the injury that worsened to produce the current disability.  Because Scott received TTD benefits while out of work in 1996, the Court of Appeals held that the progressive aggravation of her injury could only be characterized as a change in condition.  Because she last received TTD benefits in 1997, the statute of limitations barred any additional payment of income benefits under the 1996 date of accident.

Based on the specific facts of Scott’s case, the Supreme Court agreed that her disability was due to a change in condition rather than a fictional new injury.  However, the distinguishing factor for the Supreme Court was that Scott had returned to appropriate light duty work after her 1996 accident.  The Supreme Court noted that where an employee returns to work that is “inappropriately strenuous” and experiences a progressive worsening of his condition, a fictional new injury may still be found.

Although the Scott decision is a mostly-favorable holding for employers, the Supreme Court declined to hold that a fictional new injury concept could never apply in a situation where an injured employee previously received weekly disability benefits.  Accordingly, these types of decisions  will still have to be made on a case-by-case basis, and the Scott holding still leaves some wiggle room for clever claimant’s attorneys.