New accident

As with the "change of condition" concept, the idea of "new accident" seems obvious enough and yet, this concept, when paired with "change of condition" has produced more litigation than any other definitional concept outside of "arising out of and occurring in the course of employment.". As with change of condition, a new accident assumes the existence of a previous on the job injury. With this in mind, an old accident with which a new accident can be compared, the reasons and the implications become apparent. First, however, the reader must understand that the new accident concept encompasses not only an actual new incident but also a gradual (repetitive trauma) condition which produces a worsening of the employee's physical condition resulting in a "new accident" as of the date of the Employee's disability. This is commonly known as a "fictional new injury." We will discuss this more when the new accident concept is compared and contrasted with the idea of change of condition. If an injured worker has an existing claim, why bother with a new accident involving a change of condition? The answer can be as simple as the fact that a new accident might give the employee a higher compensation rate, restart the clock on the eligibility period for income benefits or even just to get to a new doctor when their choices for treatment under the old claim are less than satisfactory. The more complex answers also involve an attempt on the part of the employee to get around a statute of limitations problem on the old claim or an attempt by either the employee or the insurance carrier for the old claim attempting to shift the liability to a new insurance carrier or new employer. Motives may differ but the fact remains that if the employee or another party is attempting to establish a new accident date, there needs to be some evidence of worsening of the physical condition. Absent a worsening of the Employee's physical condition, there is no basis whatsoever for a finding of a new accident,fictional or otherwise. Remember though that "worsening" can be found even based only onthe Employee's complaints of increased pain.

"Skedsvold & White
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