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Change Of Condition V Fictional New Injury

When a doctor releases an injured worker to light-duty work, or work with restrictions (such as no lifting over 10 pounds, or limited standing) the worker’s employer may offer the worker a light-duty job to accommodate those restrictions.

Thus, a worker who previously operated a forklift or stood at an assembly line all day may find himself answering phones or filing papers instead. Sometimes, these new light-duty jobs can continue for months or even years.  

But what happens when an injured worker returns to a light-duty job, only to have his condition worsen later? The courts have found that when this happens the injured worker has suffered either a “change of condition,” or a “fictional new injury.”

If the worker has had a “change of condition,” his entitlement to additional income may be barred if too much time has passed since his original date of injury. However, if the injured worker has suffered a “fictional new injury,” he may file a new claim with a new date of injury and will be entitled to income benefits if a doctor takes him out of work.

In the recent case of Scott v. Shaw Industries, the Supreme Court ruled on just such a situation and offered some guidance on what circumstances distinguish a “change of condition” case from a “fictional new injury” case.

The Scott case involved a woman, Ms. Scott, who worked as a carpet inspector. This job required her to stand for most of her workday. However, in 1996 she suffered a serious injury and part of her foot was amputated as a result. She remained out of work for nearly a year while she recovered from the operation and received workers compensation income benefits during that time.

Eventually Ms. Scott was fitted with a prosthesis and her doctor stated that she was capable of returning to light-duty work.  Her employer then offered her a light-duty job where she could sit or stand as needed. Ms. Scott returned to this job, but her prosthesis caused her to walk with an altered gait. This in turn, caused her to develop bilateral knee problems. As a result, she underwent surgery on both knees in 1997.

Following knee surgery, Ms. Scott returned to work her light-duty job for 12 more years. During that time the condition of her legs continued to deteriorate until, in 2009, her doctor took her out of work completely. Ms. Scott then filed a new claim for workers compensation income benefits, arguing that she had suffered a “fictional new injury” in 2009 when her doctor took her out of work. The insurance company disagreed, arguing that her disability stemmed from her original injury in 1996 and that her condition had merely changed for the worse.

The Supreme Court agreed with the insurance company and held that Ms. Scott suffered a change in condition and not a fictional new injury. This meant that her disability was related to her original date of injury in 1996 and not the date her doctor took her out of work in 2009. As a result, the statute of limitations barred her from collecting income benefits.

The most important fact that the Supreme Court cited in classifying Ms. Scott’s case as a change of condition was that Ms. Scott was offered work within her doctor’s restrictions. Because Ms. Scott had never been asked to work or physically exert herself beyond the limitations that her doctors had imposed, it could be assumed that the deterioration of her condition was inevitable, and would have happened whether she had been at work, at home, or anywhere else. 

Thus, the facts in Scott were in contrast to the facts in R.R. Donnelly v. Ogletree, where an injured worker had returned to work, but had been made to do strenuous work that was beyond his doctor’s restrictions. In that case, the injured worker was found to have suffered a new accident.

Read the Supreme Court’s decision in Scott here:

Scott V Shaw 

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Seth Bader
(678) 562-5595