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Publication Date

12-1994

Document Type

Special Contribution

Abstract

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,

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