Reopening for aggravation of bodily injury
Victim of bodily injury: what to do if his condition has worsened?
A recurring question is legitimately asked by the victim of bodily injury who receives compensation for his damages: what can he do if his state of health were to worsen?
The victim has the inalienable right to have his file reopened for aggravation if a new fact arises generating damage that was unknown on the day the compensation was initially made.
The action for compensation for new damage must be brought within 10 years of the aggravation.
This possibility of reopening the file will arise in two distinct scenarios:
Reopening in the presence of a new medical fact
Since, to a large extent, it is the medical expertise that determines the elements according to which the assessment of the damages resulting from the bodily injury will be assessed, it is logical that any medical element unknown when carrying out the expertise in question may justify the reopening of the file.
In practice, such reopenings in the presence of a new medical element are frequent.
They concern, for example, the occurrence of early osteoarthritis on a fractured limb, or the occurrence of a joint problem induced by overuse of the uninjured limb, to compensate for the functional deficit of the injured limb.
This may also concern pathologies that existed when an old medical expertise was carried out, but which could not be taken into account for lack of appropriate diagnostic research.
This is the case, for example, of cognitive sequelae following a head trauma. Since the initial expertise could not take into account sequelae highlighted later, for example by means of a neuropsychological assessment, or by having more efficient MRI examinations.
Sometimes, the new medical fact is relatively insignificant compared to the extent of the sequelae initially observed, but the extent of the reparable damage which results from it can nevertheless be significant.
Let us cite, for example, the case of a victim injured in the ankle working as an electrician, who managed to find a job in a suitable position, and whose subsequent arthrodesis caused the loss of the new suitable job.
The professional damage is then considerable.
Reopening in the presence of a new factual situation
En dehors de l’hypothèse d’un fait médical nouveau, un dossier de réparation de préjudice corporel peut être rouvert à tout moment en présence d’une situation de fait nouvelle.
We then speak of situational aggravation.
The fact that a young victim leaves their parents’ home may justify a reopening of the file, for example. In this case, the victim may see new damages appear which did not exist when they received their first compensation: need for work to fit out their new home, need for a vehicle adapted to their disability, need for third person to compensate for a lack of autonomy, etc.
The reopening of the file for situational aggravation can also be carried out when the victim – who had initially been able to return to work thanks to an adjustment of the position – is finally subject to dismissal for incapacity, without the occurrence of any a new medical fact.
Situational aggravation is therefore likely to be invoked in a wide range of cases.
Case law has, however, laid down guidelines, in order to reconcile this possibility of acting in aggravation with the principle of res judicata attached either to the court decision that fixed the compensation, or to the transaction entered into between the parties originally.
This principle of res judicata – applied in matters of bodily injury – essentially provides that the amount of compensation initially granted to a victim cannot be revised.
For example, it has already been ruled that the mere circumstance of the departure of a victim’s spouse – hitherto acting as a third party for the latter – could not in itself constitute a reason for reopening the file for aggravation.
Each new situation can therefore be capable of having two degrees of interpretation. And the victim who intends to request a reopening in aggravation has an advantage in presenting things from the outset in a way that will make it possible to consider that it is either a new medical situation, or an unknown and unanticipated factual situation. during the initial examination.
The assistance of a lawyer may prove invaluable in this regard. If you received compensation for bodily injury and want a reopening for aggravation, contact us.