Posted On September 9, 2014 Personal Injury

Ask the Attorney: Pre-Existing Injuries Don’t Have to Hurt Your Claim

Asker: Will prior injuries make a difference in getting a fair personal injury settlement? My doctor has indicated this is a new injury that shouldn’t be attributed to the previous injury or that this accident worsened the existing injury. What if I had surgery, physical therapy, or chiropractic care before?

Attorney: Unfortunately, there’s no limit on the number of times you can find yourself in the wrong place at the wrong time. Bad luck is what often causes innocent people to get hurt in accidents. They have the misfortune of encountering a reckless driver, a careless physician, or an environment with a hidden safety hazard. Sometimes bad things happen to good people more than once, and that’s when you wind up with questions about pre-existing injuries. Having been injured in the past can hurt your claim, but it doesn’t have to – not if you handle the situation correctly from the start.

What Prior Injuries Mean for Your Claim

Having a prior injury doesn’t prevent you from pursuing a personal injury claim, but it is something that your doctor and lawyer need to know about immediately. To be able to diagnose and treat your injuries to the best of their abilities, medical providers must have accurate information about your health before the accident. Otherwise, your provider could be forced to waste valuable time and money – including yours – trying to understand inconsistencies between the information you are disclosing and his or her professional observations. You’ll get better care if you are truthful about all of your injuries, including old ones.

Failing to mention, or lying about, any previous injuries can also hurt your claim for compensation. When an insurance adjuster or defense attorney finds out about your previous injuries – and there’s a good chance he or she will – the fact that you tried to hide this information will hurt your credibility. Insurers routinely try to make claimants with legitimate damages look like they are just money-hungry, sue-happy fraudsters. You may be tempted to keep past injuries a secret, especially if you know that they’re distinct from your accident injuries or if they have already healed, but doing so could give ammunition to the insurer’s arguments (however unsubstantiated they may be) against paying you what you deserve. Be open and honest with your attorney about any past injuries or even accidents that didn’t involve injuries, and let your lawyer determine how much information needs to be shared with the insurer.

The Bad News

You’re right to have some concerns about pursuing a claim with pre-existing injuries. After all, insurance companies aren’t on your side after an accident. They want to pay out as little as possible, even if that means the claimant – in some cases, their own policyholder – gets the short end of the stick. Insurance adjusters are likely to fixate on your prior medical complaints and try to say that these old injuries, and not the accident, caused the medical problems you’re currently experiencing. For that matter, we’ve even seen insurance adjusters try to argue an injury was pre-existing even when they have the patient’s complete medical records in front of them and there is clearly no indication of such a prior condition. Yes, an insurance adjuster might try to stop you from getting the money you deserve because you have prior injuries – but that doesn’t mean the insurer will be successful.

The Good News

The biggest challenge in handling a case with prior injuries is being able to prove either that this new injury is distinct from your old injury, or that the accident worsened the existing injury. This can be done. Your medical records hold all the information we need. Suppose the insurance adjuster argues that the herniated disc you sustained in the accident was from a work injury years ago. Comparing MRI films and doctor’s notes from them to current films can show that the damaged disc isn’t in the same area, or that the injury had healed long before this accident. Even if you had surgery, chiropractic care, or physical therapy, the records that illustrate your progress toward recovery can help us show that your current injuries are either distinct from the pre-existing injuries or that the old injuries had healed prior to the accident.

When accident victims ask about prior injuries, what they’re really asking is whether they will suffer yet another misfortune – this time, being denied the compensation they deserve. Yes, your old injuries can impact your claim, but by dealing with the issue early on instead of trying to sweep it under the rug, you can put your side in control of the situation. I urge clients to always talk honestly with their doctors and lawyers when it comes to pre-existing injuries. Otherwise, both your health and the value of your claim could face the negative consequences.