You may be able to get compensation damages if someone aggravated your prior injuries in an accident.
Prior injuries are also called pre-existing injuries. Several factors determine whether your prior injuries will result in a smaller settlement for your current case.
You need to know the impact of your pre-existing injuries on the settlement value of your case. Then you can effectively negotiate the case. If negotiations fail, you will know whether it is worthwhile to file a lawsuit.
Before I talk about how prior injuries affect your current case, I want to talk about what insurance companies know about your prior injuries.
Insurance Companies Know Your Past Claims History
The insurance adjuster will likely know your past claims history. Your past claims were likely reported to the insurance index immediately after those claims were reported.
In the case of People v. Petsas, 214 Cal. App.3d 70, 262 Cal. Rptr. 467 (1 Dist. 1989), the court said that the insurance company’s usual practice was to index the claim immediately after it is reported.
Insurance Services Office (ISO) is the organization that has your past claims history. The adjuster for your current case will likely run a past ISO claims search. You can run a search for about $65.
Don’t lie about your past claims to your attorney, doctor or anyone else. It will only hurt your current case.
When you go the hospital or doctor for your current injury, they will ask you about your past medical history and put it in your medical records.
The doctor’s office will also have you complete a new patient forms where it asks you about your past medical history. The claims adjuster will want to see these records. Medical records are the heart of your personal injury case.
Many factors will determine whether a jury believes that your current injuries are pre-existing or whether they believe they were aggravated in the accident. One of the biggest factors will be your credibility.
When did you last complain of pain before the accident?
If you recently complained of pain before an accident in the same area that was injured in your current accident, it may make your case more difficult.
This is true even if you went for a yearly checkup with your primary care physician and briefly mentioned that you had some time of pain, whether it be neck or shoulder pain etc.
If you complained of pain – in the same area that you are claiming was injured in your current case – 10 years before the accident, then this fact alone will probably not hurt your case that much. If you complained of pain 1 week before the accident, then a claims adjuster may use this against you an offer you less.
That being said, a careless party’s insurance company may still pay you if you had a pre-existing injury.
Lady Gets $197,500 Settlement for Broken Arm and Aggravation of Prior Shoulder Injury
A lady got a $197,500 settlement after she slipped and fell in a hotel bathtub. She fractured her upper arm bone (humerus).
She had surgery to fix it. She also claimed a shoulder injury.
The hotel’s insurance adjuster said it was questionable whether her shoulder injury was caused or aggravated by the fall.
Driver With Prior Back Injury Gets $100,000 Settlement
See a $100,000 settlement for a lady hit by a car in North Miami Beach. She said the crash worsened her pre-existing bulging discs and herniated discs.
She also broke her nose. A neurosurgeon recommended lower back surgery.
GEICO paid its $100,000 BI insurance limits shortly after the crash. I represented her.
Man With Pre-Existing Ankle Injury Gets $64,900 Settlement
I recently settled a case for $64,900 for a man who was recovering from ankle surgery when he tripped and fell in a hole that was covered with grass overgrowth.
He ultimately had a surgery which his orthopedic surgeon, Dr. Thomas San Giovanni, related to the current accident.
The insurance company for the condominium owner, the management company and the landscaper all denied liability.
The defense attorneys argued that my client’s ankle problems pre-existed the accident. I argued that his injury was aggravated by the accident.
I sued. This case is an example of why you may need an injury lawyer.
2. How often did you treat for the same injury before the accident?
If you have a significant history of medical treatment for a particular body part, this can greatly reduce a potential settlement for your personal injury case. If you saw a chiropractor 1 a month for back pain in the year before an accident, then this can lower the value of your case.
I have had large offers in cases even though my client treated for many months for a back or neck injury before the current accident.
3. Diagnostic studies (MRI, CT scan, etc.) taken or recommended before the accident.
Similar to the effect of surveillance video in a personal injury case, a diagnostic study can make or break your case. For example, if you had an MRI one year before your accident and it showed a herniated disc in your neck, and you are claiming that you have pain at the same area in your neck where the herniated disc was, you may have a difficult case.
This may be true as well even if the MRI was taken several years before the accident. Even if you were referred to get an MRI or CT-scan on a body part before the accident, but did not get it, it can still hurt the value of your case.
This is because it shows that your injuries were serious enough for the doctor to recommend a MRI or CT scan. So in these instances, the settlement value for case involving a herniated disc or other injury may greatly decrease.
Now, if you just treated for neck pain a couple of times 10 years ago, that should not hurt your case that much, if at all.
I was one of the attorneys (co-counsel) on a case that settled for over $190,000.
One of the defense attorney’s arguments was that he hired a renowned infectious disease expert who told him that our client had an infection that pre-existed the accident and was the cause of the injury.
We argued that the fall caused or aggravated the pre-existing injury.
This was a major factor in settling for less than the full value of the case.
Example – Effect of prior complaints of pain on settlement value
Let us assume you had some complaints of neck pain to doctors before you slipped and fell at Walmart in Miami. You are 40 years old.
Although it is not typically the case, we will assume that they admit liability. If a jury believes that your current neck issues are 100% related to this accident, then they may award you 100% of your damages.
If the jury does not believe that you aggravated your neck injury, then they could award you nothing for your damages.
4. Degenerative Changes
After a certain age, the body begins to degenerate. It is not uncommon for people in their 30’s to have degenerative disc disease, dessication, degenerative shoulder joint disease or some other type of degenerative disease.
Claims adjusters love to argue that your injuries are degenerative in nature. When they argue this, simply tell them – if true – that you were asymptomatic before the accident and now they are on the hook for all of your damages.
I settled a case for $150,000 where my client had a lower back fusion. The MRI taken after the accident revealed disc dessication.
I settled a case for approximately $147,000 where my client a degenerative disease in her shoulder. There has been degenerative shoulder joint disease in every shoulder injury case that I have handled where my client was claiming a tear.
This includes rotator cuff tears, labral tears, etc. I have settled several other shoulder tear cases where my client had degenerative shoulder joint disease.
5. What do the doctors say?
The doctors are often the most important part of a personal injury case. If you are claiming an aggravation of a pre-existing injury, then the doctor must say that you aggravated your injury. Otherwise, you may get nothing for your damages. The defendant may also hire a doctor to give an “independent” evaluation of your injuries.
If their doctor says that your current injuries pre-existed the accident, then for settlement purposes you should consider discounting the full value of your case by a certain percentage depending on the credibility of the doctor and other factors.
6. Portion resulted from the aggravation.
While most personal injury cases do not go to trial, you should know that Florida Standard Jury Instruction 501.5(a) states in pertinent part that the jury should:
“attempt to determine what portion of the Plaintiff’s condition resulted from the aggravation.”
So the claims adjuster knows that the jury will try to determine what percentage of the injury resulted from the aggravation. If the adjuster believes that 50% of your injury resulted from the aggravation of the pre-existing injury, then he may pay your 50% of those damages.
The jury instruction also says if the jury “cannot make that determination, or if it cannot be said that the condition would have existed apart from the injury, then you should award damages for the entire condition suffered by Plaintiff.”
7. Request your past medical records immediately.
One of the most common questions that I am asked is, “How long will my case take to settle?” There is no guarantee, but you may be able to shorten the time it takes to settle by knowing what is in all of your past and current medical records.
You can supply the claims adjuster the past medical records if he or she asks for them. I do not suggest that you do so voluntarily as you have no obligation.
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