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Almost all of us have an injury at some point or the other in our lifetime. Sometimes, because of strenuous work and active lifestyles we have multiple injuries in a short period of time. Strains, sprains, fractures, you name it -- are all common. Like many of us, I have broken and sprained both of my ankles on multiple occasions, twisted and sprained my knee and fallen and tripped more times than I care to admit. I am not alone, however, many, if not most Americans will suffer an orthopedic or another injury at some time in their lives. Orthopedic injuries typically refer to traumatic injuries to bones, muscles and other tissues in our arms, back, feet, neck, legs, etc.
Workers Compensation claims often involve accidents in light of pre-existing injuries and medical conditions. The injuries that I have sustained make it more likely that I will have other, similar injuries in the future because injuries sometimes weaken body parts which become more susceptible to additional injuries.
The relationship between your injury and your accident can often come into focus after your employer receives a report that you sustained a work-place accident. Frequently employers, along with insurance companies will begin investigating your claim by evaluating the nature of your current injury and whether you have ever sustained an injury to the same body part or had the same medical condition in the past. You can be sure that you will be asked about all prior accidents including other work-related accidents and auto accidents. In your worker's compensation case, the insurance company may attempt to relate your current injury or condition to your prior injury or condition.
While the pre-existing condition issue does not come up in every case, it is of critical importance if you have been involved in other accidents and/or have been treated by a medical provider for the same area of your body where you are currently injured. Hopefully, you will find the information in this article helpful as you evaluate your claim, what compensation you may be entitled to and whether your current or future medical needs will be covered by workers compensation.
Below, we explain what it means to “aggravate” or “accelerate” a condition that pre-existed your current injury and a few suggestions about things that you or your attorney can do to help make the best case for workers compensation coverage in Virginia. Of course, if you would like to discuss the particular facts of your case with us, we are very happy to do so. In fact, we offer a free consultation to discuss your case. As you may have read on our website, we have handled workers compensation cases in Virginia for many years and in virtually every area of Virginia including Roanoke, Lynchburg, Bristol, Abingdon, Harrisonburg, Fairfax, Richmond, Virginia Beach, Norfolk, Danville and many areas in between.
We are a phone call or email away: 434-847-9066 or [email protected] You can also complete the form on this website and we will reach out to you.
Step #1 -- Is the accident “compensable”?
As with any Virginia Workers Compensation case, you must prove that you had a “compensable” accident. Basically, this means that you can prove with testimony an documents that you had an accident that “arose out of” and “in the course of your employment” In itself, this issue can be complex and we have written extensively about proving compensable accidents here. If you prove that you suffered a compensable accident, you can move to step #2 below -- understanding your current injury.
Step #2 -- What type of Injury are you claiming?
Did the compensable accident from Step #1 cause a back injury? Knee injury? Arm? Shoulder? The type of injury is important and the analysis regarding pre-existing conditions may be different depending on your injury.
Back injuries are the most common type of injury that may trigger an investigation into a pre-existing condition. Back injuries are frequent, often result in surgery and often leave indicators on MRI's and CT's scans of your prior condition. In my experience back injuries, shoulder injuries and knee injuries are often susceptible to the pre-existing condition issue.
Perhaps you are a steel worker or CNA who, because of heavy lifting, suffered a bulging or herniated disc years ago. Maybe you had physical therapy, epidural steroid injections and took medications. Perhaps your condition as more serious and required surgery. Then -- regardless of your treatment -- you returned to full unrestricted duty. Your work life continued without much problem. Then, it happened again. You lifted a heavy object, like moving a patient or lifting a large piece of steel, and felt a pop or other immediate pain in your back. Now, your doctor wants you to have physical therapy again or, more significant, another surgery.
It is likely that the employer and/or the insurance company will argue that your back was really not injured again in your most recent accident. The insurance company will argue that your current surgery would have been necessary at some point in the future regardless of your new accident and will likely argue that one simple act of lifting did not cause your need for surgery. This happens frequently. Fortunately, you do have recourse. You can file a claim with the Virginia Workers Compensation Commission. If, after you file the claim you or your attorney is not able to reach an agreement with the insurance company, the Commission will decide if your surgery, wage loss and/or other treatment is related to your current work accident.
The key to winning this claim is to prove that your current accident “aggravated”, “exacerbated” or “accelerated” your prior injury. That means something very important: You do not have to ignore the fact that you had a prior problem. Built into the law, which has developed over many years, is the idea that a pre-existing condition can be easily made worse by an accident and, as a result, that accident can be considered the current cause of your injury and medical condition. This can mean that you may be entitled to the surgery your doctor recommended and, if the medical evidence supports disability, you may be entitled to temporary total or temporary partial wage loss benefits.
Knowing the law is only the first step. Proving the “aggravation” can be challenging. By far, the most important take away from this article is this: Be honest about your prior condition. Be honest about your current symptoms. Do not ignore the relevance of your prior injury. Below, we have explained this point in more detail.
Step #3 -- Be honest (with yourself and your attorney) about the extent of your prior injuries
I have been fortunate to handle many workers compensation claims and many of those claims have involved pre-existing condition issues. During that representation, I have had clients who have been completely honest and forthright about prior medical conditions which allowed me to investigate the conditions, ask important questions to doctors and prepare my clients for court. I have also had the occasional client who decided to not be as forthright. Those clients were at a disadvantage. I could not prepare them properly for court. I could not explore the aggravation theory and, probably most important, I could not address the pre-existing condition issue head-on with their doctor.
If you have or decide to obtain an attorney, be prepared to discuss the following:
- A list of all accidents and other traumatic incidents that cause you to have medical treatment. “All” is important here. It is better for your attorney to know more than less about your history.
- It is even important for your lawyer to know about Auto Accidents where sought medical attention but were not injured.
- Athletic Injuries -- yes, that old football injury may matter.
- All medical conditions that could be related in any way to your current injury -- even if you were treated only on one occasion.
- Prior workers compensation claims
- Prior auto accident lawsuits
- All lawsuits and claims involving injury of all kinds
Again -- more information is better than less information
If you have medical records or documents that talk about any of the above, give them to your attorney. If you know the source of any such documents, give that source to your attorney. I can often look at documents and find important distinctions between old and new injuries just by looking at old medical records. These distinctions could be the difference between winning and losing a Virginia Workers Compensation Case.
Step #4 -- Be prepared to testify (in a deposition or at a hearing) about your new and old injuries and conditions.
After you file a claim, most attorneys representing employers and insurance companies will take your deposition. A deposition is meeting where the attorney will ask you questions about your accident, injury, pre-existing condition and many other questions under oath. It is critically important that you be prepared well to testify at a deposition. You will also likely have to testify at a hearing before a Deputy Commissioner with the Virginia Workers Compensation Commission. While this is different than deposition and your preparation will be different, the same principle is true: You must be prepared.
Here are some tips for depositions and hearings:
- Be prepared to discuss your employment before your accident. Talk about how you were feeling, the physical demands of your job, whether you had any problems standing, walking, lifting or any other physical activity. If If you were working, full duty and without any significant problems after your old injury but before your new injury, you will likely have a better chance at prevailing before the Virginia Workers Compensation Commission. The alternative is true too. If you were on light duty immediately before your accident proving an aggravation may be very difficult. However, it is still not impossible. I recently had a case that involved a worker who was reinjured while still on light duty and prevailed in the case.
- VERY IMPORTANT: Be prepared to give specific examples about how your work accident made your pre-existing condition worse. Here are some tips:
- Did your symptoms change?
- Was there an increase in pain or other symptoms?
- Did your pain or symptoms move into other parts of your body?
- Is your pain more frequent?
- Do you have pain doing certain activities that you did not before?
- Are you taking new or increased medications?
- Be prepared to talk about activities and/or responsibilities that you did and had before your accident that you are not able to do now
- Did you exercise?
- Were you a runner?
- Did you have hobbies?
- Did you attend Church or other civic events?
- Did you do your own grocery shopping?
- Did you attend sporting or other events?
- Be specific about what pain you experienced at the time of your accident. The more specific you are about what happened at the time of your accident, the more likely it is that the Commission will find that you had a new injury.
If all of this is too much to process….We are here to help! Call, email or fill out the form on this page and we will happily talk to you. (Our initial consultation is free!)
In summary, embrace your pre-existing conditions. I know this seems odd. It is far better to embrace the condition and create a story that proves an aggravation than avoiding the facts about your prior injuries, accidents, and conditions. With your attorney, your medical providers and potentially with medical experts, your story, including your current pain and symptoms can be told in the most persuasive and credible way if you are open, honest and forthright about your medical condition.
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