Larson’s Spotlight on Recent Cases: Gradual Worsening Over Time Constituted Change of Condition, Not New Injury

Larson's Spotlight on Change of Condition, Workers' Comp Fraud, and Tort Suit and Evidence of Workers' Comp Benefits. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

GA: Gradual Worsening Over Time Constituted Change of Condition, Not New Injury, and Claim Was Barred by Statute of Limitations

No matter how competent a commission's diagnosis of claimant's condition and earning prospects at the time of hearing may be, that condition may later change markedly for the worse, or may improve, or may even clear up altogether. Under the typical award in the form of periodic payments during a specified maximum period or during disability, the objectives of the workers' compensation legislation are best accomplished if the commission can increase, decrease, revive, or terminate payments to correspond to a claimant's changed condition. The "change in condition" which justifies reopening and modification is ordinarily a change, for better or worse, in claimant's physical condition. Of course, any attempt to reopen a case based on an injury ten or fifteen years old must necessarily encounter awkward problems of proof, because of the long delay and the difficulty of determining the relationship between some ancient injury and a present aggravated disability.  Accordingly, a number of states, including Georgia, place time limits on such reopening.  If, of course, the claimant can show a "new" injury, the statute of limitations problem can be avoided.  The issues at state are represented in a recent decision from Georgia, in which the state high court held that the gradual worsening of claimant's condition over time constituted a change in condition and not a new accident, affirming a decision by a state appellate court.  The employee suffered an industrial accident that resulted in the partial amputation of her foot.  After a ten month recuperative period, she returned to work in a customer service position that accommodated her disability.  Because of her prosthesis, her gait changed and she developed pain in her knee.  Twelve years later, her physician told her to stop work for a while and she was subsequently unsuccessful in returning.  The high court found that an administrative law judge erred as a matter of law in finding that the claimant had suffered a "fictional new accident" as a result of inappropriately strenuous work that he was performing.  There was merely a progression of her original injury and the claim was barred by the statute of limitations.

See Scott v. Shaw Indus., Inc., 2012 Ga. LEXIS 638 (July 2, 2012).

See generally Larson's Workers' Compensation Law, §§ 131.01, 131.03.

NY: Appellate Court Reverses Board's Finding of Workers' Compensation Fraud

A New York appellate court recently reversed a finding by the state's Workers' Compensation Board that ruled that a claimant violated Workers' Compensation Law § 114-a(1) by knowingly making false statements for the purpose of receiving benefits.  Based on its finding, the Board said that all benefits received after a certain date were forfeited. In addition, the board assessed a discretionary penalty and disqualified the claimant from receiving wage replacement benefits. The appellate court found that the board's decision contained a number of factual inaccuracies and mischaracterizations of the claimant's testimony. For example, the board found that the claimant testified that he could only do light work-like activities for short periods and that he could not lift things, an assertion that the board found was contradicted by a surveillance video. The appellate court indicated, however, that the claimant actually testified that he could not pick things up and could not move things like he used to, and that he readily admitted that he tried to do as much physical work as possible per his doctor's orders. The appellate court noted that the video revealed that the claimant labored to complete the physical tasks depicted, none of which continuously exceeded 90 minutes, and his efforts were punctuated by long periods of inactivity.

See In the Matter of the Claim of Denato v. Aquarian Designs, Inc., 2012 N.Y. App. Div. LEXIS 5146 (June 28, 2012).

See generally Larson's Workers' Compensation Law, § 135.02.

AK: State Supreme Court Finds Admission of Evidence Related to Workers' Compensation Benefits Was Improper in Tort Suit Against Manufacturer; Jury May Have Been Confused

Finding that an Alaska trial court erroneously admitted evidence of a plaintiff's receipt of workers' compensation benefits and that the plaintiff had used drugs five years before an industrial accident that resulted in an above-the-knee amputation, the Supreme Court of Alaska reversed the trial court's judgment and remanded the case for further proceedings.  A portion of the worker's leg was amputated when he used his foot to push a bale of mulch that he was feeding into a chopping machine.  He sued the manufacturer and owner of the machine under various tort theories.  The trial court allowed the introduction of evidence showing that the plaintiff received 26 weeks of TTD, plus a lump sum payment of more than $67,500 in benefits.  Noting that the collateral source rule is founded on concern that information about other sources of recovery can prejudice the jury on issues of liability or lead the jury to think that the plaintiff will get a double recovery, the state high court found the admission of the evidence was not harmless and could have led to jury confusion and a reduction of damages.

See Jones v. Bowie Indus., Inc., 2012 Alas. LEXIS 92 (June 29, 2012).

See generally Larson's Workers' Compensation Law, § 110.02.

NV: Evidence as to Amount of Workers' Compensation Benefits Received Should Have Been Admitted In Trial of Plaintiff's Tort Action

Contrast the Alaska decision noted immediately above with a recent decision by the Supreme Court of Nevada in which the court held that because Nevada, the forum state, and California, the state in which the workers' compensation payments were made, both had statutes that permitted proof of workers' compensation payments to be allowed into evidence in personal injury actions, such evidence should have been admitted and a clarifying jury instruction provided by statute should have been given.  The trial court's judgment was, therefore, reversed and the matter was remanded.

See Tri-County Equipment & Leasing, LLC v. Klinke, 2012 Nev. LEXIS 72 (June 28, 2012).

See generally Larson's Workers' Compensation Law, § 110.02.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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