Fictional Accident DENIED

In our discussions of New Accident versus Change of condition, we have tried to distinguish between the two. A recent case from the Georgia Court of Appeals highlights the fact that the concept of a "new accident" needs some attention as well. In JMJ Plumbing v. Cudihy (Ga. Ct. App. A12A1348, 11/30/2012) the Court was presented with an appeal by an Employer that won its case at the State Board's Appellate Division only to have the Superior Court reverse. First, anytime you have that situation arise, the Superior Court's ruling is in jeopardy if there is ANY evidence to support the finding of the SBWC. In short, all the Superior Court can do is to see if the correct legal standard was applied. If so, the award should be affirmed even if the Superior Court disagrees with the facts. As to the issues in Mr. Cudihy's claims, the Court of Appeals found that the SBWC had applied the correct standard and reversed the Superior Court. Claim denied. So, now that you know the result, what happened? Mr. Cudihy was a plumber who on 9/2/2008 alleged that he felt a sharp pain in his back while digging in the course of his employ. The problem is that he did not report the injury to his employer but did seek medical treatment after work. During that visit, though, he mentioned that he developed back pain over the weekend and experienced pain that morning while digging. His next medical treatment was in 1/2009 and then in 3/2009 when he sought chiropractic care. He saw an orthopedist in May and June 2009 and was told that he should work at light duty and that surgery might be warranted. The injury was first reported to his employer on 6/25/2009. He worked light duty until terminated for reasons unrelated to his injury (the Court does not elaborate and there is apparently no dispute that the termination was in fact unrelated) in August 2009. Mr. Cudihy applied for WC benefits and alleged a 6/25/2009 injury date. The Administrative Law Judge found that the claimant had sustained in injury on 9/2/08 and a new accident on 6/25/09 and was entitled to TTD and medical treatment. The new accident date of 6/25/09 was supposely based upon the 1978 decision of the Court of Appeals in Central State Hospital v. James and relates to the situation in which the employee is injured but "continues to work until he is forced to cease work because of his gradullay worsening condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury..." On Appeal to the Appellate Division of the SBWC, the AD found that Mr. Cudihy did not establish the first accident (9/2/2008) thus making the fictional new injury inapplicable. Remember, Cudihy failed to give notice of the injury within 30 days of 9/2/2008. Further, since 6/25/2009 was not a date of disability, the very terms of the "new accident" as expressed by Central State v. James was inapplicable. Mr. Cudihy only reported the original injury (9/2/2008) on that date. He did not lose time, he continued to work until terminated for other reasons. When he left work, he was admittedly capable of continuing to work. So why did the Superior Court reverse? After all, it seems like the SBWC applied the law correctly. The Superior Court looked to the claimant's continued employment and worsening condition, calling it a cumulative trauma condition that amounted to a gradual injury. The problem with this analysis is that even Mr. Cudihy admitted that he did not sustain any injury on 6/25/2009, he did not become disabled on 6/25/2009 and continued working until he was fired on 8/12/2009 and even after that admits he was capable of continuing to work. The Court of Appeals also noted that there was some evidence that Mr. Cudihy's condition on the date of the original hearing was the same as it was on 9/2/2008 so a finding of worsening was not demanded. Bottom line for Mr. Cudihy and his employer, all claims were denied. Practice Pointers: 1) For the injured worker - report your injury, treat with authorized doctors and work with your employer about accomodated duty 2) For the Employer - don't count on the fact that ACTUAL notice will be required to carry the day. Constructive notice "the employer should have known" will often suffice and is most often available (i.e. the supervisor knew the claimant was in pain, saw indications of pain behavior, claimant missed time for doctor appts, cl was not able to perform as well as had previously been the case) 3) For the Insurer - know the facts about the original injury and make sure that the employee's statements (most helpful if part of a recorded statement) comport with the medical evidence. Interview and be appropriately skeptical of anything told to you, even by the Employer and witnesses, to make sure that these statements are consistent with the record in front of you.


"Skedsvold & White
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