The difficult task of discerning between what facts constitute a change of condition and those which show a new accident were once again the subject of a Georgia Court of Appeals decision issued yesterday 11/13/12. The Court handed down its opinion in the case of Evergreen Packaging, Inc et al. v. Prather (Ga Ct App A12a1067). Briefly, the facts are that Larry Prather was working as a warehouseman and forklift driver for Evergreen when he injured his back in 2002. As a result of that injury, he was paid 5 weeks of income benefits, received medical treatment and returned to work. In 2005-2006, Prather applied for and was granted a change in his job duties. His new job as "plate maker"(he made plates for Evergreen's printing presses and cleaned them after the process was completed) required him to gather materials, cut those materials and to handle the plates which weighed between 15-20# for a set of 4 plates. The process also required him to place the plates in numbered bins which required bending over all the way to the floor and reaching up over his head. In addition, the new position also required lifting boxes weighing between 30-50#. Prather admitted that the lifting required in new position was lighter than the lifting requirements in his position as a warehouseman.
According to Prather, after his return to work from the initial injury, his back (which bothered him from day one) got progressivley worse. Prather was unable to point to any specific incident where he actually felt that he hurt himself. From his return to work after the 2002 unjury until 2010, he missed one week of work due to back problems.
During his last two years of employment, Evergreen purchased a new plate table for Prather to use. This new table required him to bend over farther in performing his duties and this activity caused his back condition to worsen. Over the last few months of his employment, he noticed new symptoms (a numbing feeling down into his foot). Prather south treatment on 2/3/10 with a chiropractor and on 3/1/10 stopped working at the recommendation of another chiropractor. A new MRI was obtained on 3/15/10 which, when compared with the previous MRI in 2005 showed an increase in the extent of disc extrusion and an increase in stenosis. An annular tear was also noted as a new finding on the 2010 report.
With no specific injury noted and with work lifting requirements in the new employment being lighter than in his old job, it would seem that this case was tailor-made for a change of condition finding. Readers of this blog will recall previous posts in which the case of Central State Hospital v. James, 147 Ga. App 308, 248 SE 2d 678 (1978) was discussed (probably at too much length). The James court explained the possible permutations in a given factual scenario as the basis for the analyzing whether a change of condition or a new accident should be found. Evergreen argued that the first scenario discussed in James was directly applicable and required the change of condtion finding since the condition deteriorated, there was no specific incident or new injury precipitating that decline and because the job duties were lighter. They argued that, as a matter of law, these facts required a finding of a change of condition.
The Court in Prather, however, decided that the ALJ, the SBWC's Appellate Division and the Superior Court, had it right in deciding that the claimant aggravated his condition, a fictional new injury, as a consequence of his job duties. The Court pointed to the 1980 decision in Certain v. USF&G, 153 Ga App 571, 266, SE 2d 263(1980) which provided that "ordinarily the distinguishing feature which will characterize the disability as either a change of condition or new accident is the intervention of new circumstances." Since in Mr. Prather's case the SBWC had found such new circumstances in the new plate table that Prather used which required him to bend over farther in performing his duties and that this activity caused his back condition to worsen. With this finding, there was evidence to support the award of the SBWC (finding a new injury) and thus, the Superior Court and the Court of Appeals were duty-bound to affirm it.
What were pivotal pieces of evidence? 1) new findings on the MRI - in particular the annular tear 2) the Plate table which required more bending over and which made the condition worse. Other items of concern, which Evergreen and its attorneys could do precious little to combat were: a) the change of condition statute of limitations had run on the old claim so if Mr. Prather were provided medical under the old claim, he would have no income during the convalescence and b) the claimant and the medical providers were pushing for the new accident. Motivation of the employee is an important consideration when analyzing these claims. Getting the employee on your side early on may help sway the medical providers as well. This is critical, especially when there is a new carrier or new employer involved.
"Skedsvold & White
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