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This question comes up from time to time, and as a Atlanta workers’ comp attorney I have the privilege of answering it. This question often comes from men who have physically demanding jobs they love doing and want to continue doing. In a case decided in March 2015 called ABF Freight Systems Inc. v. Presley, a man hurt his right knee, got surgery, returned to work for a couple of years, and then had to come back out for more medical treatment to his injured knee.
In this case, the injured man could have received workers’ compensation disability benefits while he was out of work for the knee only if he had what’s called a “fictional new accident” as opposed to a “change in condition.” Unfortunately, for him, the judge (and, later on, the Georgia Court of Appeals) found he did not have a fictional new accident, meaning he could get no TTD (temporary total disability) benefits.
In order to determine if you’ve had a fictional new accident after returning to work following an injury, your injury must have gotten worse due to the physical activity of the job (or because of an aggravation that happened at work). If it’s a gradual worsening due to the “wear and tear” of life and work, it’s not going to qualify, and it will instead be a change in condition. This determination is very fact-based, and often times a deciding factor in the decision will be whether new circumstances were present when you returned to your job post-injury.
The reason all this mattes is because there’s a 2-year statute of limitations on getting TTD benfits after you’ve received them for an injury in the past. In the case cited above, Mr. Presley lost his case for TTD benefits, because more than 2 years had passed, and the court did not believe he’d had an aggravation or fictional new injury.
