by Emily Anderson, Esq.
Once an employee is injured, they have one year from the date of the injury to file the claim if no lost time is paid. When there is a specific accident, knowing what date to use is easy. However, not all injuries are that straight forward.
• Cumulative Trauma: when an employee does not have a specific accident, but rather a “gradual onset” injury. The date of accident can be the date the employee stopped working, but if the employee did not stop working, then it can be the date the employee first sought medical treatment.
• New Accident: when an employee sustains a work injury, returns to work and ultimately ceases work because of an aggravation of the work-related condition through the performance of post-injury work, then the aggravation is a “new accident.” If the employee is forced to stop work because of a gradual worsening of her condition that is at least partly attributable to her physical activity in continuing to work, then that is a change of condition and there is no new accident date.
• Legal Fiction “New Accident”: when there is no lost time and the employee continues working, but there is a gradual worsening and the employee has ceased work because of it, the employee can be said to have a legal fiction “new accident” as of the date the employee stopped working.
• Super-Added: when an employee sustains a subsequent injury as a direct and natural result of the original on-the job injury, the new “super-added” injury is compensable. The date of injury is the date of the original injury. For instance, if an employee who has a knee injury later has resulting back problems due to an altered gait, the back problems would be considered “super-added.”
The court recognizes these distinctions, and subsequent extensions to the statute of limitations, primarily so as not to penalize an employee for going back to work following an injury. If you have a question about the date of accident should be, please do not hesitate to contact us.