Since 1966 in the case of Mallory v. American Casualty Company, 114 Ga. App. 641, Georgia Courts have struggled to fashion some protection from the statute of limitation in those cases where injured workers who, despite their injury, soldiered on in their work. The Courts felt it did not want to penalize those who sought to keep working.
This was made definitive in finding a “fictional new accident” in such cases which had gone past the one year statute of limitations in a new injury case or the two-year statue of limitations in change of condition cases.
In the case of Central State Hospital v. James, 147 Ga App. 308 (248 SE2d 678 (1978), the Court acted to prevent the employer from taking advantage of an employee’s loyalty, dedication to duty or need for continued income by the creation of a “fictional new accident” to revive a claim barred by the one-year statute of limitations on those cases where the employees condition gradually worsened to the point where such person could no longer continue to perform his/her ordinary work. This became the standard.
It did have to be shown that it was the circumstances of the work that caused the deterioration of the Claimant’s condition.
This is to be distinguished from the concept of “change of condition” which applies to those injuries for which the injured party received disability income benefits following an injury. A worsening of condition taking a party out or work in those cases must occur within two years of the last payment of income benefits on the original claim or it is barred by the statute of limitations.
There can be an exception to this, however, in a couple of instances. If the person is with a new employer or the insurer for the employer has changed, in those cases where the deterioration of the injured parties condition was caused by a change of job circumstances to a more physically difficult or rigorous job, then, in that instance, the person can, in fact, make a claim for fictional new accident as long as there is medical support for the claim.
In fictional new accident cases, the “date of injury” is the date the person is forced to cease working, and all issues as to amount of the weekly disability benefit and other legal issues are controlled by the status of the law on that date. R. R. Donnelley v. Ogletree, 312 Ga. App. 474 (2011). Therefore, if the weekly benefit has been statutorily raised between the time of the original injury and the time the person is forced out of work by the condition, the statue in effect at the later date controls.