You’re entitled to fair insurance compensation even when you have a prior injury. Here’s what you need to know to build a strong injury claim.
Most personal injury claims are settled through the at-fault person’s insurance company.
No matter if your claim is from a car accident, slip and fall, or work-related injury, the insurance adjuster will try to pay out as little as possible.
If you’ve had a pre-existing injury or a chronic medical condition, the adjuster will argue that your injuries weren’t caused by their insured.
You don’t have to accept the adjuster’s argument. You have a right to fair compensation for your injuries, whether they’re an aggravation of previous injuries or new and separate injuries.
Here’s where we unpack how you can boost your compensation despite a prior injury.
Establishing Liability for Injury Claims
Unless you are filing an injury claim under your policy’s no-fault auto insurance, the insurance company won’t accept your claim without proof of their insured’s fault.
To prove the other person’s liability, meaning responsibility for your injuries, you’ll have to prove the other person was negligent.
There are four parts to proving negligence:
- Duty of care: The other party had a duty of care to avoid causing harm to others
- Breach of Duty: The other party breached their duty by doing something wrong, or failing to do what any reasonable person would do under the circumstances
- Cause: The at-fault party’s breach of duty directly caused your injuries
- Damages: You have confirmed injuries, supported by medical bills and records
Proving liability requires strong evidence.
There are several reliable ways of producing credible evidence, including:
If you aren’t taken directly to the hospital from the scene of your injury, get a thorough medical evaluation as soon as possible.
Be sure to tell your medical providers exactly when and how you were injured. Describe your symptoms in detail, like pain levels and any limitations to movement. Clearly state when your pain and other symptoms started.
The more distance you can put between the symptoms of your pre-existing condition and your new injuries, the better.
If you have a prior injury or medical condition, make it clear that you didn’t have your current symptoms before the event that caused your current injuries.
As we get older, most of us experience wear and tear on our bones and joints. Previously undiagnosed degenerative spine disease and osteoporosis often show up on imaging studies done after a car accident or other sudden injury.
Finding a degenerative condition is not a good reason to reduce your injury claim if you never had symptoms before the accident. For a strong injury claim, speak up to every doctor you see about when your symptoms started.
For old injuries, ask the doctor who treated you to document when your old injury happened, when you were treated, and when you were released from treatment. Confirmation that your previous treatment successfully reduced any pain or other problems will help support your new injury claim.
When to Disclose a Pre-Existing Injury
We have little control over when accidents happen and how serious they are. Many times, a new injury can overlap a pre-existing injury.
If you file an insurance claim for new injuries, you’re better off disclosing your prior injuries to the adjuster from the start. However, how you disclose prior injuries can make or break your claim.
Recorded Statements Can Be Used Against You
Adjusters are trained to look for reasons to deny or reduce injury claims. Before any requests are made for medical records, the adjuster will ask you to provide a recorded statement.
Saying the wrong thing, or letting the adjuster talk you into agreeing to something they said, can sink your injury claim. They are experts at getting you to make “admissions against interest” about a pre-existing condition. In other words, they will use what you say against you.
You have the right to consult a
personal injury attorney
before giving a statement to the insurance company. For serious injury claims, never give a statement without your attorney present.
Beware of Medical Release Forms
Early on, the adjuster will ask you to sign a release for your medical records and bills.
The adjuster may try to make it sound like they’re doing you a favor and suggest you’ll get paid faster. Don’t be fooled. The adjuster is on a fishing expedition for medical information they can use against you.
Carefully read over any forms the insurance company wants you to sign.
You are not obligated to use the company’s form. Some release forms allow the insurance company to get copies of your medical records from any medical provider you’ve ever seen going back five or ten years before the accident.
While you must provide medical bills and records to support your injury claim, you can limit the insurance company’s access to your personal health information.
When you have a pre-existing injury or medical condition, you will need to provide medical records concerning the prior condition. Failing to acknowledge a pre-existing condition will invariably come back to bite you.
There’s not much that can damage your claim more than getting blindsided during negotiations when asked why you failed to tell the adjuster about your prior injuries. If that happens, your credibility is all but gone. Avoid this costly mistake by disclosing your old injuries.
If you have a complicated or serious injury claim, your attorney will know how to present prior injury records in ways that support your claim.
Attorneys Boost Injury Compensation
If you’ve fully recovered from relatively mild injuries and you only want to get your medical bills paid, you can probably handle your claim without an attorney.
Even with a pre-existing condition, it’s worth it to the insurance company to settle minor injury claims in exchange for a full release of liability for their insured.
For complicated or severe injury claims, you’ll need an experienced injury attorney to get anywhere near the amount of compensation you deserve from the insurance company.
Pre-Existing Injuries and Workers’ Compensation
You might work for the best company in town, but your employer’s workers’ comp insurance company won’t be so nice.
Back injuries are the most common type of workplace injury, and the most common type of claim denied because of a prior injury or condition.
You can get worker’s comp despite a pre-existing condition if you are careful to separate your new injuries from the pre-existing injury.
Watch what you say. Never make excuses for your new injuries. Don’t make comments about your “old bones” or “creaky joints” that can be used against you.
Be especially careful if the workers’ comp adjuster orders an Independent Medical Exam (IME) with one of their doctors. If you haven’t already, contact a good injury attorney before undergoing an IME.
Eggshell Injury Claim Arguments
Many states have “eggshell injury doctrine” rules that give medically or psychologically fragile individuals the right to full compensation for their injuries even when their injuries are more serious than they would have been if not for the pre-existing condition.
In other words, an event that wouldn’t hurt a healthy person could cause serious injury to someone with a pre-existing injury or condition. The at-fault person would still be liable for the full cost of the injured person’s damages.
Example: At-Fault Driver Liable for Heart Attack
Sarah was an 80-year-old passenger in her granddaughter Jane’s car. Jane was driving through the mall parking lot when Ron suddenly backed his pick-up truck into her path. Jane couldn’t avoid hitting Ron’s truck.
The collision caused the airbags in Jane’s car to deploy. The force of the airbag fractured Sarah’s nose. The abrupt crash frightened Sarah so badly, she suffered a heart attack.
Because Sarah already suffered from a heart condition, she spent several weeks in the hospital, followed by two months in a skilled-care facility for cardiac rehabilitation.
Ron was to blame for backing out of the parking space without looking. Although the accident wasn’t much more than a fender-bender, Sarah’s damages were severe.
Under “eggshell injury doctrine” rules, Sarah would not have had a heart attack but for the car accident, so Ron is liable for all her damages.
Don’t believe the insurance adjuster who says you must settle for less because of a pre-existing injury.
You’re entitled to fair compensation despite old injuries, ongoing medical treatment, or normal conditions of aging.
Most personal injury attorneys don’t charge for their initial consultation.
You don’t have to worry about paying your attorney up front when they agree to represent you on a contingency fee basis, meaning your attorney won’t get paid unless your claim is settled or wins in court.
Don’t let the insurance adjuster have the final word. There’s no cost to find out what a skilled injury attorney can do for you.
Video: How Prior Injuries Affect Your Claim
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