Central State Hospital v. James

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN; BELL; McMURRAY; McMURRAY
• Citation: Central State Hospital v. James, 147 Ga.App. 308, 248 S.E.2d 678 (Ga. App. 1978)
• Decision Date: 28 September 1978
• Docket Number: No. 55938,55938
• Parties: CENTRAL STATE HOSPITAL et al. v. JAMES.

Page 678

248 S.E.2d 678

147 Ga.App. 308

CENTRAL STATE HOSPITAL et al. v. JAMES.

No. 55938.

Court of Appeals of Georgia.

Argued June 7, 1978.

Decided Sept. 5, 1978.

Rehearing Denied Sept. 28, 1978.

Arthur K. Bolton, Atty. Gen., Russell N. Sewell, Jr., Asst. Atty. Gen., James H. Weeks, Sp. Asst. Atty. Gen., for appellants.

Peugh & Bradley, W. B. Bradley, Milledgeville, for appellee.

QUILLIAN, Presiding Judge.

This is an appeal from an order of the superior court which affirmed an award of the State Board of Workmen's Compensation.

The claimant sustained an injury and an agreement to pay compensation was approved by the board. She drew compensation until such time as she returned to work.

She continued to perform the normal duties of her employment which included standing all day until, because of swelling in her leg, she was hospitalized. The record shows that the claimant did not have a specific job-related incident which aggravated the condition of her leg.

The claimant filed for a hearing to determine a change in condition within two years from the date the board was notified that the final payment had been made pursuant to a board order. After the hearing, an award was entered which held that her continued work of standing all day had aggravated her previous work-related injury causing pain and swelling to the point that it constituted a new injury. Held:

1. This court has had to address the issue of distinguishing between old and new injuries on many occasions. As a result of these opinions there has been some confusion as to whether a claimant's disability results from a new injury or a change in condition. There are three situations which most frequently occur.

(a) One instance is where the claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury. Our courts have held that the one-year statute of limitation begins to run from the date the claimant was forced to cease his employment. They base this holding on the theory that the date of the "new accident" is the date that the disability manifests itself. Mallory v. American Cas. Co., 114 Ga.App. 641, 152 S.E.2d 592; Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174, 196 S.E.2d 129.

If the court had held otherwise it would have penalized a claimant who attempted to continue working even though he was injured to some extent.

Therefore, that which was held in the Mallory and Blackwell cases is not in conflict with St. Paul Fire, etc., Ins. Co. v. Hughes, 125 Ga.App. 328, 187 S.E.2d 551 which is discussed later in this opinion.

( b) A second example is where the claimant sustains a second accident As the result of a specific job-related incident which aggravates a pre-existing condition which resulted from a prior accident. In these circumstances the second accident which aggravated the pre-existing condition is a new injury, if the second accident at least partially precipitated the claimant's disability. Aetna Cas., etc., Co. v. Cagle, 106 Ga.App. 440, 126 S.E.2d 907. This is true whether the claimant is immediately disabled or if he continues to work after the second accident and his condition gradually worsens until he is forced to cease his employment. Pacific Employers Ins. Co. v. Ivey, 118 Ga.App. 299, 163 S.E.2d 435.

( c) A third situation is where the claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto he returns to his employment performing his normal duties or ordinary work. Then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties and not because of a specific job-related incident his condition gradually worsens to the point that he can no longer continue to perform his ordinary work. This gradual worsening or deterioration would constitute a change in his condition and not a new accident. St. Paul Fire &c. Ins. Co. v. Hughes, 125 Ga.App. 328, 187 S.E.2d 551, Supra; Garner v. Atlantic Building Systems, Inc., 142 Ga.App. 517, 236 S.E.2d 183.

2. Southern Bell Tel. & Tel. Co. v. Lemon, 142 Ga.App. 141, 235 S.E.2d 588 is hereby overruled for the following reasons.

In the Lemon case the facts were that the claimant had an accident and received compensation. Subsequent thereto he returned to his employment performing his usual duties. As a result of the wear and tear of ordinary life and the activity connected with performing his ordinary work over a period of time his condition deteriorated to the point that he was no longer able to perform his usual duties. Even though the claimant did not experience any specific job-related incident which could have constituted an accident it was held that his disability was due to a "new accident." The Lemon decision reached this conclusion by holding "The appellant argues that the case of St. Paul Fire &c. Ins. Co. v. Hughes, 125 Ga.App. 328, 187 S.E.2d 551, supra, contains language which in effect contradicts the 'new accident' rule as applicable to the case sub judice. The language in question which is on p. 330, 187 S.E.2d 551, is as follows: '. . . even if the wear and tear of ordinary life Or ordinary work to some extent aggravates a pre-existing infirmity, when that infirmity itself, stemming from the original trauma, continues to worsen, the point where the employee is no longer able to continue his work is not a New accident but is a change of physical and economic condition entitling the claimant to compensation under the original award.' (Emphasis supplied.) The confusing term is 'ordinary work,' which might convey the erroneous meaning of the employee's ordinary work or duties On his job with his employer. The term was undoubtedly intended to mean work Other than that in his usual employment, such as yard work, for example. Thus construed, there is no conflict with the 'new accident' line of cases."

We cannot agree with this rather strained construction of the term "ordinary work" which was made in the Lemon case. A reading of the Hughes case will show that the term "ordinary work" meant the claimant's ordinary or usual duties of his employment and not yard work.

If the Lemon case were not overruled, a claimant would almost never have a change in condition for the worse. This is true because, assuming that a claimant received an injury and was paid compensation during the period of his disability, that he returned to work and performed the normal duties of his employment for a period of time, that subsequent thereto his condition worsened, as the result of performing his usual duties and the wear and tear of ordinary life, to the point that he was no longer able to perform the ordinary work of his employment, if the Lemon case were followed, the claimant would be held to have had a "new accident" when in fact he would have actually had a change in condition.

As stated in section (a) of Division 1 of this opinion, it was not necessary to make the construction of the Hughes case as was made in the Lemon case to prevent the Hughes case from being in conflict with the "new accident" cases.

3. In the present case, the claimant's disability was not due to a new accident but was the result of the performance of her usual duties which caused her condition to deteriorate to the point that she could no longer continue in her employment. Therefore, she had a change in condition.

In the case sub judice the board and the superior court relied on the Lemon case which was authority at the time of their decision. However, the Lemon case having been overruled, this case is reversed, with direction that the State Board of Workers' Compensation (changed from the State Board of Workmen's Compensation by Ga.L.1978, pp. 2220, 2221 effective July 1, 1978) enter an award which conforms to that which was held in this opinion.

Judgment reversed with direction.

BELL, C. J., DEEN, P. J., and WEBB, SMITH, SHULMAN, BANKE and BIRDSONG, JJ., concur.

McMURRAY, J., dissents.

McMURRAY, Judge, dissenting.

On August 9, 1971, Edna Louise James, while employed by Central State Hospital, Milledgeville, Georgia, suffered an injury arising out of and in the course of her employment. The employer and employee entered into the standard form of agreement as to compensation (Form 16) agreeing that she should receive compensation from August 17, 1971, until terminated which followed on August 31, 1971, when they entered a supplemental agreement that liability for temporary total disability had ceased on that date. However, notification of final payment was not received by the State Board of Workmen's Compensation until October 20, 1975.

Thereafter, on May 9, 1977, a change in condition hearing was requested relative to a specific member disability, and a hearing was held by the board. See Code Ann. § 114-709 (Ga.L.1937, pp. 230, 233; 1937, pp. 528, 534; 1943, pp. 167-169; 1968, pp. 3, 7; 1972, pp. 149, 150; 1973, pp. 232, 244). The administrative law judge determined, at the hearing, that the claimant continually worked from the time of her return to work until January 5, 1977, when she was hospitalized because of a swollen leg. A finding of fact was made, "that claimant's continued work by standing all day aggravated her previous work related injury and caused pain and swelling to the point where it became a new accident on her hospitalization on January 5, 1977," and that she had a specific member disability to her right lower extremity of...