Holt's Bakery v. Hutchinson

• Decision Date: 03 December 1985
• Docket Number: No. 70880,70880
• Citation: 177 Ga.App. 154,338 S.E.2d 742
• Parties: HOLT'S BAKERY et al. v. HUTCHINSON.
• Court: Georgia Court of Appeals

Page 742

338 S.E.2d 742

177 Ga.App. 154

HOLT'S BAKERY et al. v. HUTCHINSON.

No. 70880.

Court of Appeals of Georgia.

Dec. 3, 1985.

Elton L. Wall, Macon, for appellants.

Dewey N. Hayes, Jr., Dewey N. Hayes, Sr., Douglas, for appellee.

BEASLEY, Judge.

On July 8, 1981, Beatrice Hutchinson suffered an injury to her back and neck as she carried a pan of doughnuts while working at Holt's Bakery. She worked until July 21, when she became totally unable to continue, and she remained out of work until her return on August 10. She claimed and received temporary total disability income benefits for the period of time she was out of work, plus medical expenses.

On July 21, Ms. Hutchinson was treated by a physician who signed a "Medical Report" Form WC-18 indicating that the employee had suffered a lower lumbar sprain, had no permanent disability, would not likely need vocational rehabilitation and would be able to return to normal work in about three weeks. No "Final Medical Report" Form WC-20 was filed. The Form WC-18 was filed with the Board on September 9, on which date the insurer filed Form WC-2 showing that temporary total disability payments to Hutchinson had commenced and had been suspended; "Recurring Temporary Total" was typed at the top of the form. Also on this date, the insurer filed Form WC-4 reflecting that the final weekly payment of benefits was made on August 19, 1981. They were designated as the "total" type of wage payment, and medical expenses were also shown as paid. The WC-4 report responded "none" in the box marked "if permanent injury state loss." The forms were signed only by the adjuster. Neither form provided space for Hutchinson's signature.

On October 14, 1983, the employee again ceased to work for the bakery, this time permanently, due to the gradual worsening of her back condition which finally prevented her from continuing. She filed a claim for compensation on February 7, 1984, alleging a new injury on October 14, 1983 and a 20% permanent partial disability rating. The employer and insurer filed a notice to controvert payment of compensation.

At the hearing before the administrative law judge, the parties stipulated that the original accident was on July 8, 1981, with a disability date of July 21, 1981, that the claimant was alleging either a new accident or a change of condition as of October 14, 1983, the last day Hutchinson worked at the bakery, and that the average weekly wage figure would be different from the 1981 accident to the 1983 cessation. The parties further stipulated to the wages for thirteen weeks prior to the October, 1983 incident which were all based on a reduced work week. Ms. Hutchinson claimed the reduction was necessitated by her back condition. Claimant's counsel informed the ALJ that: "We will not contend that Ms. Hutchinson, on this 14th day of October, actually had an injury and fell or hurt her back again that day. Our contention is going to be that she got injured on the job working for Holt's Bakery back on July 8, 1981. That she continued to work as long as she possibly could, and that the working aggravated--In other words, her condition worsened to the point that as far as we're concerned, back on the 14th day of October, 1983, that she had worked as long as she possibly could and that a new injury originated by result of that." The employer and the insurer moved to dismiss Hutchinson's claim as too late.

The ALJ issued an award finding that Hutchinson "continued to do her job at Holt's Bakery, although as a result of the wear and tear of ordinary life and the activity connected with performing her normal duties the condition of her back gradually became worse until such time as she was forced to cease work after October 14, 1983. She did not suffer any specific incident after July 8, 1981, which affected her back. After the claimant's return to work on August 10, 1981, she did not have any medical treatment provided by the employer/insurer. She did see a chiropractor on several occasions but never submitted a bill to her employer or insurer for payment ... the claimant had a change in condition on October 14, 1983. I find, since she had an accident on July 8, 1981, became disabled, received income benefits during her period of disability, and did not experience any specific incident which aggravated her condition, that she did not have a 'new accident' on October 14, 1983. On February 7, 1984, the claimant, through her attorney, filed a claim for benefits with the State Board of Workers' Compensation. I find that her claim was filed more than two years since the date of final payment of income benefits and was not timely filed in accordance with O.C.G.A. § 34-9-104(b)." She therefore granted the motion and denied the claim.

On appeal, the Board found that Hutchinson's claim was not time-barred because permanent partial disability payments due her had not been completely paid, that she was due weekly temporary total disability benefits from October 25, 1981 until terminated by law, and that she was due permanent partial disability weekly indemnity benefit payments based on a 20% disability rating to commence upon the completion of temporary total payments and to continue until terminated by law.

The employer and the insurer appealed to the superior court and after a hearing and the submission of briefs, the court affirmed the Board's award, stating: "This ruling is based on a finding that claimant's injury falls under the first category enunciated in Central State Hospital v. James, 147 Ga.App. 308, 248 S.E.2d 678 (1978) whereby aggravation of an injury previously sustained on the job constitutes a 'new accident' as of the date the employee ceases his employment and therefore the two-year statute of limitations for 'change in condition' is inapplicable."

We granted application for discretionary appeal.

1. Appellants assert that the court erred in ruling that Hutchinson in 1983 sustained a "new accident" rather than a "change in condition" as both are defined in Central State Hosp. v. James, 147 Ga.App. 308, 309(1), 248 S.E.2d 678 (1978). The correct characterization of Hutchinson's injury is central to the question of the timeliness of her claim.

In order to better distinguish between old and new injuries, the court in Central State Hosp. v. James, supra outlined three of the frequently occurring situations in the work place: "(a) One instance is where the claimant is injured on the job but continues to perform the duties of his employment until such time as 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. [Cits.] ... (b) A second example is where the claimant sustains a second accident as the result of a specific job-related accident 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. [Cit.] 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. [Cit.] (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. [Cits.]" Central State Hosp. v. James, supra at 309, 310(1), 248 S.E.2d 678.

" 'The proper classification of the basis of a claim as an "accident," "change of condition," or "new accident" hinges generally upon two factors: (1) Whether the claim seeks initial or additional compensation for the "injury"; and, (2) the proximate cause of the injury for which compensation is being sought. A claim for a work-related injury arising from an "accident" is an initial claim for compensation. To be compensable, an "accident" claim must be filed within one year of the original job-related incident of which the employer was timely notified and requires a causal connection between the conditions under which the work was required to be performed and the injury which forms the basis for the claim. [Cits.] A claim for a "change of condition" is a claim for additional compensation under the original award. A "change in condition" claim for additional compensation is predicated upon the claimant's gradually worsening condition, from the wear and tear of performing his usual employment duties and of ordinary life, to the point that he can no longer continue to perform his ordinary work. [Cits.] A claim for a work-related injury arising from a "new accident" is also an initial claim for compensation, but, unlike an "accident" claim, it has not been filed within one year of the occurrence of an original job-related incident of which the employer was timely notified. [Cit.] An award for disability arising from "new accident" must be predicated upon the filing of a claim within one year from either the date the claimant was 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...