Change in Condition and New Accident: the Difference Between the Two, Elements of Each, and Burdens of Proof - Michael F. Antonwich

• Jurisdiction: United States,Federal
• Publication year: 1994
• Citation: Vol. 46 No. 1

Change in Condition and New

Accident: The Difference Betweenthe Two, Elements of Each, and

Burdens of Proofby Michael F. Axitonowich^*

I. Introduction

This Article is designed as a survey of the law on the theories of new accident and change in condition. It will compare and contrast these two theories, which compromise one of the most often litigated areas of workers' compensation law. The respective burdens of proof are placed on the employee/claimant and the employer/insurer when either alleges a change in condition, either for the better or for the worse. These burdens are addressed both as to accidents occurring before and after July 1, 1992. Also addressed are the circumstances and attendant outcomes when more than one employer or insurance company is involved.

The entire focus of this Article is premised on the understanding that a compensable accident has already occurred. If the employee's condition thereafter improves, the employer/insurer will assert this change for the better in an effort to suspend payment of indemnity benefits. From the employee's viewpoint, the change in condition theory arises after a compensable accident, followed by at least a partial recovery by the employee and a subsequent deterioration in the employee's condition to the point of renewed disability. Under these circumstances, the employee will seek reinstatement of benefits at the expense of the employer/insurer involved in the original accident.

When the employee brings an argument alleging a change in condition for the worse or, alteratively, the occurrence of a new accident, the focal point of the investigation becomes the attendant facts and circumstances concerning the original accident, the employee's physical condition subsequent to that accident, and the circumstances surrounding the employee's return to work including the employee's work activities. The salient point is that the theories of change in condition and new accident, whether fictional or actual, only come into play after a compensable on-the-job injury.

II. New Accident

A. General Considerations

In Central State Hospital v. James,¹ the court of appeals annunciated two specific circumstances in which a new accident, as opposed to a change in condition, would exist.² The first situation, important for statute of limitations considerations, occurs when an employee is injured but continues to work, and at some later date the injury becomes disabling and forces the employee to cease working.³ The date when the employee is forced to discontinue working is considered the date on which the disability manifests itself and the date of the new accident.⁴

The second situation occurs when the employee has been injured, recovers, and subsequently suffers a second specific disabling injury.⁵ "In these circumstances the second accident which aggravated the preexisting condition is a new injury, if the second accident at least partially precipitated the claimant's disability."⁶

B. When an Employee Continues to Work After an Injury

Official Code of Georgia Annotated ("O.C.G.A.") section 34-9-82(a) provides that "[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury . . ." for all injuries sustained after July 1, 1978.⁷ Prior to July 1, 1978, the Georgia statute provided a one year statute of limitations which commenced running on the date of the accident? This distinction is pivotal in claims for initial compensation because the disability engendered by the accident may not manifest itself within one year. Theoretically, an employee involved in an accident on January 2, 1977, but suffering no disability until January 2, 1978, would be foreclosed from asserting an otherwise meritorious claim. In response to this malevolent result, repugnant to the very underpinnings of the workers' compensation system, the courts developed the new accident theory, also referred to as the fictional accident theory.

The new accident theory posits that the statute of limitations will not commence running until the disability from an accident manifests itself.⁹ A prime example of the rationale behind this theory is found in Employers Fire Insurance Co. v. Heath.¹⁰ The employee in Heath was employed trimming trees from high voltage wires. In 1972 he was hit in his left eye by a wood chip. The employee kept working, losing time only for medical attention, and filed no claim for compensation. In 1977 his vision worsened to the point of requiring an operation to remove a cataract from his left eye.¹¹

When he filed his claim in 1977, both the Administrative Law Judge ("ALJ") and the Full Board of Workers' Compensation ("Full Board") found the claim was barred by the statute of limitations.¹² Applying the new accident theory, the court of appeals found the claim to be compensable and not time barred.¹³

Here, the date of the injury under the "new accident" theory was the date the claimant was forced to cease employment or when the gradual loss of his sight prevented him from working since he continued in his employment after the injury to his eye in 1972 until, as a result of the injury, he was forced to terminate his employment.¹⁴

The new accident theory similarly affects the statute of limitations when an employee is injured, returns to work, and subsequently suffers an aggravation of the pre-existing infirmity. In these situations, the statute of limitations does not commence on the date of disability resulting from the first accident. Rather, the claimant has one year from the disability date of the aggravating condition to file his claim.¹⁵

One important point to remember in this context is that a specific, identifiable accident is not needed to revitalize the previous injury.¹⁶ When "the employment contributes to the aggravation of the pre-existing injury, it is an accident under our compensation law, and is compensable, and it is not necessary that there be a specific job-connected incident which aggravates the previous injury."¹⁷

A change in condition, not a new accident, occurs when an employee is injured, receives compensation, returns to work without fully recovering, and then becomes disabled without an aggravating occurrence.¹⁸ In Hughes the court of appeals held:

[T]hat 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.¹⁹

Again, the pivotal distinction is that a new accident refers to a claim for initial compensation, whereas a change in condition refers to a compensation claim pursuant to a previous award or the voluntary payment of benefits by the employer/insurer.²⁰ If a claim for a change in condition exists, O.C.GA. section 34-9-104(b) sets out a two-year statute of limitations period that commences with the filing of notice and the employer making final payment.²¹ For new accident claims, however, O.C.G.A. section 34-9-82(a) provides for a one-year statute of limitations commencing on the date the disability prohibits the claimant from working.²²

C. Specific Second Accident

James delineated a second situation in which a new accident could occur.²³ This situation occurs when an employee is injured, recovers, then suffers a specific job-related accident that serves to aggravate the prior injury.²⁴ If this second accident at least partially precipitates the employee's disability, it is a new accident.²⁵ "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."²⁶

The court of appeals faced this situation in Mutual Savings Life Insurance Co. v. Pruitt.²⁷ The claimant in Pruitt required surgery when he originally injured his back in a compensable accident on or about October 31, 1979. He reinjured his back in October 1980 and again in July 1981. The last accident required a second operation. The treating physician stated the 1981 accident could have been caused by the weakness or instability resulting from the 1979 accident.²⁸ The court of appeals held that, since the 1981 accident was a specific accident that aggravated a pre-existing condition, it constituted a new accident.²⁹

Thus, a second specific accident is treated just as an initial compensable accident. Both are considered original claims for compensation. In either case, the claimant's previously impaired condition is of no consequence.

If the employee's disability results as the immediate consequence of an accident arising out of and in the course of the employment, it matters not that it combines with a pre-existing injury or disease, or that the accident would not have resulted in disablement except for the prior condition, or even that if the accident had not occurred at the time and place it did it might have subsequently occurred in some manner unrelated to the employment, or might eventually have occurred in any event.³⁰

D. When There Are Two or More Employers

A third situation exists, not contemplated directly in James, in which a new accident will, or at least could, be found. The situation occurs when an employee is injured and returns to work with a different employer or employers and again becomes disabled. If a specific accident occurs at the second place of employment, that employer is obviously liable, even under James.³¹ If, however, some question exists about the source of the disability occurring at a subsequent employer, how is this situation to be resolved?

One of the first cases to confront this question was House v. Echota Cotton Mills, Inc.³² The claimant was originally injured in May of 1970 and voluntarily quit working on June 4, 1970. Thereafter, the...