Episode 30: In today’s episode, Calloway County injury attorney Jeff Roberts discusses the topic of pre-existing conditions and how they could affect your workers’ compensation and/or injury claim. He’ll provide answers to a very common question, “What if I Have a Pre-Existing Condition?”
Pre-Existing Conditions Are Handled Differently
Jeff’s law firm focuses on both workers’ compensation and personal injury cases, including car wrecks, slip and fall, motorcycle cases and more. Pre-existing conditions are handled differently, depending upon whether you are filing a workers’ comp claim or a personal injury claim.
Worker’s Comp Claim with a Pre-Existing Condition
Under Kentucky’s workers’ compensation system, a determination needs to be made. It’s important to establish whether it was an “active” condition or was it simply a “pre-existing dormant” condition.
A pre-existing dormant condition which was activated by the current workplace injury often means the entire condition is considered covered under workers’ comp. This includes the medical treatment and benefits.
Jeff uses the example of a 55-year-old person who would normally have some level of degenerative disk disease (naturally occurring). A back injury could make the condition much worse. In that case, the pre-existing condition wouldn’t be relevant to the claim. It’s the most current work injury that is causing the pain and related problems.
An active condition has to be carefully defined. The legal and medical definitions are different. Medically speaking an active condition simply means it is/was present (i.e. degenerative disk disease). From a legal perspective, Jeff has to carefully cross-examine the medical expert to ensure he/she admits the existing condition wasn’t causing problems for the injured worker, until the recent injury occurred. From a legal perspective, to be considered “active” it must have been causing symptoms (i.e. pain). The condition must also be impairment ratable. This means the injury resulted in some type of limitation, before the recent injury occurred.
Under Kentucky law, the insurance company working on behalf of the employer has to prove the condition was active, in a legal sense. If they can establish the injury was active, they may be able to reduce the benefits related to the new injury. This is referred to as a “carve out.”
Jeff also explains that for an injury to be considered active and therefore relevant to the current claim, the injury must be to the same body part.
Can I Get Workers’ Compensation Benefits for Different Injuries?
Assume you were already getting some type of workers’ compensation partial disability benefit for an injury to your lower back. Jeff confirms that if the current injury is to your neck or other body part, you could actually receive a separate disability benefit for the new injury, on top of what you’re already receiving.
As a Calloway County workers’ compensation attorney, Jeff understands how complex the system and the process can sound. A large part of his practice focuses on helping injured workers to file workers’ comp claims. You can rely on his experience and reputation.
Car Wreck Claim with a Pre-Existing Condition
Kentucky personal injury law treats pre-existing conditions differently than workers’ compensation law. The basic question involves a determination of how much worse is the pre-existing condition due to the current injury? This is the extent of the “aggravation.” The injured person has a right to the aggravation of the existing condition. The prior-dormant and prior-active status is relevant, but it’s different a different process.
Why Do Insurance Companies Focus on Pre-Existing Conditions?
One of the primary objectives of an insurance company adjuster or defense attorney is to limit the amount the company has to pay out for the injury. If they can convince the workers’ comp judge that the condition was pre-existing active, they can benefit from the carve out, mentioned earlier. In a car wreck, the more they can blame the injured person’s pain or medical treatment on a pre-existing condition, the less they would have to pay out for the aggravating conditions caused by the at-fault driver.
It very often comes down to money for the insurance company, rather than for the injured worker or injured driver. For the insurance company, it’s just math.
Should You Handle Your Injury Claim on Your Own?
Insurance companies handle injury claims every day. They know how to position the evidence to try to minimize the extent of your injury and the benefits you should receive. It’s not typically a situation people should handle on their own. Jeff has nearly 30 years of experience handling personal injury claims and worker’s compensation claims. He works hard to ensure his clients receive fair compensation for their injuries.
The Statute of Limitations
This is a specific length of time during which you have to file your claim. Most people are unaware of this requirement. The insurance companies are very familiar and may use it to their advantage.
The Statute of Limitation is different for Kentucky workers’ compensation and for personal injury claims, such as a car wreck. If you go beyond that specific period, you typically are prevented from filing a claim for your injury benefits, regardless of how significant they are. Again, this is a reason to hire an attorney who has years of experience dealing with your specific type of injury claim.
Final Words of Advice about a Pre-Existing Condition
If you have a pre-existing condition and involved in a workplace injury or automobile accident, it’s important that you discuss that condition with your attorney. Don’t try to conceal it from him/her. If your attorney knows about the situation, he/she can deal with it and understand its impact on the case. Regardless of whether you disclose it or not, there’s a very likely chance the insurance company is going to find out and be prepared to introduce it during negotiations or during trial. You don’t want your attorney to be caught by surprise with this important issue.
For more information, visit www.JeffRobertsLaw.com. This podcast is meant to provide information and is not legal advice. Jeff’s principal office is located at 509 Main Street, Murray, Kentucky. Co-host Jim Ray is a non-attorney spokesperson. This is an advertisement.