New and Further Disability: A Sixty-Second Seminar in Workers’ Compensation Claims Handling

It is a common practice for applicant attorneys to calendar cases years in advance to reopen for new and further disability. It’s just something applicant attorneys automatically do shortly before the five-years statute of limitations is scheduled to expire. The purpose of today’s sixty-second blog is to share some quick defense tips when handling reopened claims.

First and foremost, always verify the petition to reopen was timely filed. Pursuant to LC 5410 the statute to reopen is not five-years from the date of settlement but five-years from the date of injury. Incredibly, attorneys on both sides are often unaware of exactly how this statute works. Also, the five-years is jurisdictional, meaning the statute is not extended for mailing.

Although there is no legal definition of New and Further Disability, it is generally interpreted to mean there is either a “new” injury or there has been a “demonstrative change in the employee’s condition.” Sometimes when a claim is reopened additional body parts, including psych, are added. When this occurs always check the medical file as it existed at the time of the original settlement. Should injury to any newly added body part be mentioned in those records, then by definition it is not a “new” injury since it existed prior to settlement. Injury should have been raised in the original proceeding. Failure to do so acts as a waiver. Again, injury to a newly added body part (including psych) cannot be raised in a Petition for New and Further Disability if it existed prior to the original settlement.

Some administrators are exceptionally eager to resolve new and further disability claims. They quickly settle reopened claims just to close their file again. When a claim reopens the goal should not be to seek quick closure. Instead, the goal should be twofold, namely, to close the file but to do so in a manner that prevents it from reopening again.

Many claims adjusters are unaware that reopening a case is not limited to only one attempt. The law allows a claim to be reopened multiple times as long as done so within 5-years from the date of injury. We actually know of an administrator who settles reopened claims within days of the petition being filed. This practice results in a very expensive business model. In one case alone an applicant was able to settle and reopen the same claim four times thanks to the administrator’s practice of entering into quick settlements. Apparently, they didn’t learn their lesson. What the administrator should have done when the claim initially reopened was to postpone settlement until after five-years from the date of injury had elapsed to prevent it from reopening again.

Lastly, when a claim is almost five-years old and scheduled to initially be resolved by Stipulated Award, we suggest the settlement be postponed until after the five-year anniversary date has passed. We have actually seen files reopen the very same day they settled, especially when the five-year statute is scheduled to expire within days. This simple tactic of delaying settlement until the anniversary has elapsed prevents reopening and saves an employer thousands of dollars.