Georgia Law Blog

On February 19, 2009 the Georgia Court of Appeals decided the case of Laurens County Board of Education v. Dewberry. This case involves the issue of whether an employee’s inability to work resulted from his original injury or a change in the condition. The injured worker, a custodian, suffered a knee injury on August 1, 2000. His medical bills were paid by the workers’ compensation insurance company but no weekly income benefits were ever paid. After the custodian returned to work, he sought no medical treatment for his knee pain. At this point, an orthopedic surgeon recommended knee replacement surgery, a very serious procedure. On November 18, 2005, which was over five years after the original date of accident, the worker was unable to work any longer due to knee pain and filed a workers’ compensation claim.

This case involved a dispute between two insurance companies. The first insurance company argued that the employee experienced a fictional new accident on or about November 18, 2005. The second insurance company argued that the employee, instead, experienced a change in condition for the worse under O.C.G.A. 34-9-104. The Court of Appeals held that whether an employee undergoes a change in condition for the worse or a fictional new accident is a question of fact for the administrative law judge. In this case, the administrative law judge evaluated all the facts in question and determined that the employee suffered a fictional new accident on November 18, 2005.

Often, the company will change workers’ compensation insurance companies while claims are pending. Injured workers still working on the job may become reinjured or, as in this case, suffer a fictional new accident. It is under these circumstances that insurance companies often fight. In the legal world, we refer to these fights as “two insurer battles.” Though it may not be apparent, this case was simply about two insurance companies fighting about which would be responsible for the injury. However, there is a deeper level of analysis as well. The insurer, in my opinion, was attempting to expand the scope of the law surrounding the change of condition statute O.C.G.A. 34-9-104. In this regard, the Court of Appeals held that there are no cases that exist in which the voluntary payment of medical benefits constitutes an award so as to allow a claimant to file for a change in condition at a later point. This issue is important as, if payment of medical benefits is construed as an “Award or otherwise” in O.C.G.A. 34-9-104(a), claimants must file a claim for weekly income benefits within two years. In this case, it is conceivable that the custodian could have been timed-barred from receiving additional weekly benefits, as it not clear that a Notice of Claim was filed within two years of the date that the last medical treatment. Fortunately for injured workers, this standard was not adopted by the Court of Appeals.