Burdine & Brown
White Paper: Gradual Onset of Injury
Gradual onset of injury occurs numerous times in the Georgia labor market without the injured worker making a formal claim for a workers' compensation job injury/accident.
The case law in Georgia encourages the injured worker to return to work even though it may not be at a 100% capacity. What happens then is the injured worker continues to work in a diminished capacity or light duty work. At some point the worker can no longer continue to work due to a gradual onset of recurring symptoms, such as back or leg or arm pain.
This would be considered under the Georgia Case Law a new accident with a fictional date of injury as the last day worked. This is a difficult case to handle because the employer receives no notice of an injury, and without a notice that must be given within the thirty days of the date of the accident (last day worked) the injured worker is barred from filing a claim and obtaining WC benefits (medical and monetary benefits).
These are the most challenging cases and I find that the workers who do not speak English well (Spanish, Bosnian, Ethiopian) are the most likely to fall victim to losing their case. One of the keys is that the worker needs to speak to a lawyer soon after he or she stops work. That is the only way to avoid the Statute of Limitations problem and the only way to have a correctly filed gradual onset of injury accident.
The case law is clear on this subject and is cited below in a case that was decided by the State Board of Workers' Compensation in 2008. This case has not been overturned.
“Her work over time aggravated her back condition to the point that she could no longer work …. See, e.g., Parham v. Swift Transportation Company, 292 Ga. App. 53, 663 S.E.2d 769 (2008).”
Bring the facts in your case to an attorney who is willing to take the time to review it with you. The longer you wait, the harder it will be to win.