How Prior Injuries Affect Your Current Personal Injury Claim

Written by: Judge Anthony P. Calisi (ret.)

When you file a claim for new injuries that in any way resemble prior injuries, the insurance company will likely tell you those “new” injuries, if they exist at all, are just an aggravation of your pre-existing injuries. Consequently, any settlement offer they make will be minimal.

You don’t have to accept that. You have a right to fair compensation for your injuries, whether they’re an aggravation of previous injuries, or new and separate injuries. This applies to car collisions, slip and falls, work accidents, dog attacks, and other injury events.

Still, getting fair compensation for new injuries can be a challenge. With the right evidence, however, it’s a challenge you can overcome. To succeed, you’ll need proof of the at-fault party’s liability, and proof of your damages.

Proving Liability

If you can’t prove liability, you have no claim, regardless of the extent of your injuries. Although state law varies in the specific elements needed to establish liability, the general requirements are:

1. The at-fault party owed you a duty of care
2. They breached that duty by acting negligently
3. Their actions were the direct and proximate cause of your injuries

Proving liability requires strong evidence. There are several reliable ways of producing credible evidence. They include:

• Photographs
• Witness statements
• Police or incident reports
• Medical records

Proof of New Injuries vs. Prior Injuries

Whether you’ve aggravated previous injuries, or suffered completely new and separate injuries, you need to prove it. The best proof of injuries is medical records. If you decide to negotiate your own settlement, you’ll need a complete set of medical records for your prior injuries, and your current injuries.

With aggravated injuries, some overlap in treatment is expected. You’ll need your doctor’s help to prove whether your injuries are new, or an aggravation of a pre-existing condition. Her written narrative giving your diagnosis and prognosis can go a long way in helping prove your claim to the insurance company.

Your doctor’s narrative

A doctor’s narrative is vital in proving where your pre-existing injuries end, and your new injuries begin. When obtaining your diagnosis and prognosis, make sure you tell the doctor what you’re trying to prove. That way, she can focus her written narrative on the details of your new injury. It’s hard for an insurance adjuster to overcome a doctor’s professional medical opinion.

Relying on X-rays, MRIs, CAT scans, and other diagnostic tests, your doctor can pinpoint why and when the new injury occurred. Her reasons for ordering the tests, and even the time when she ordered them can also help prove your claim.

Full Disclosure

Injuries can occur at any time. We have little control over when accidents happen and how serious they are. Many times, a new injury can overlap a prior injury. If you file an insurance claim for new injuries, you’re better off disclosing your pre-existing injuries to the adjuster at the start of your claim.

Adjusters are well trained. When you file an insurance claim, the adjuster will want to see your medical records. Although the adjuster doesn’t have a legal right to see those records, if you don’t provide them, she’ll probably just deny your claim.

If the adjuster finds out you have previous injuries, she may come right out and tell you she knows about them, or she may say nothing and withhold that information until the last minute.

There’s nothing more destructive to your claim than getting blindsided at your deposition (recorded statement) when asked why you conveniently failed to tell the adjuster about your prior injuries. If that happens, your credibility is all but gone, and your claim along with it.

Whether you like it or not, your doctor’s medical opinion binds you. Her diagnosis and prognosis of your current injuries, as they relate to your prior injuries, is the best evidence you can get. All you can do is hope your doctor concludes your new injuries are separate and distinct from your previous ones.

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