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Straight
Track #34
| Aggravating A Pre-Existing Condition Robert
Drummond
Hoey & Farina Attorney
1-888-425-1212
Last
week I wrote about prior accidents, prior injuries and prior
medical conditions. This week’s article focuses on the
aggravation of pre-existing conditions in the same part of the
body. |
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Please
refer to both articles because there is some overlap in these topics.
[read Straight Track
32: Prior Injuries, Prior Accidents and Prior Medical Conditions - What
You Should Know]. I will also touch on illnesses,
pre-existing or post-accident, that may affect your right to recover.
First, what do we mean by a pre-existing condition?
A pre-existing condition is any condition in the injured part of
your body that existed prior to the accident for which you now claim
damages. A pre-existing
condition may be congenital in origin, caused by another accident or
illness, or simply caused by the aging process itself.
Our backs and our knees are prime candidates for pre-existing
conditions. Let’s use the
back as an example.
Many of us are born with a condition in our spine in
which the spinal canal is narrower that the average person’s spine.
This is an example of a congenitally caused condition.
In and of itself, it may pose no health or physical problem, but it
may make you more susceptible to injury when you are involved in an
accident. In fact, you are
likely to be unaware of this condition until, after an accident, you
undergo an MRI. The fact that
you were unaware of the condition before the accident means that it was
asymptomatic – or did not cause pain or disability. But for the accident, you may have never known of the
condition and it may never become symptomatic.
You could have also suffered a prior accidental injury
to the spine and sustained a bulging or herniated disc. Either of these conditions may have caused temporary
disability. You may have even
undergone surgery, reached maximum medical improvement, and returned to
work. Your return to work
could have been with some continuing complaints of pain; however, you were
able to continue earning your living in your craft.
If you now sustain additional injury to the same part of your back,
a jury will be entitled to determine to what extent your pre-existing
condition was aggravated.
Aging involves getting up every morning and going about
your daily activities, and doing this year after year. Aging, as we all know, takes a toll on our physical
condition. If you have an MRI
after an injury, the radiologist may note what is commonly called
"degenerative disc disease.” This
is a condition which can be caused by nothing more than mere aging.
(It may also be caused by trauma.)
This too may make you more susceptible to injury.
This condition might also have been asymptomatic prior to your most
recent accident. If you now herniate a disc that was previously merely
“degenerative,” you have now aggravated that condition.
You might also be diagnosed with an illness which
pre-existed your accident. A
horrible example, but one frequently discussed in the cases, is some form
of cancer. An illness such as
this, which may affect your work-life/life expectancy, is likely to be
considered by the Court to determine the railroad’s measure of
responsibility for future damages. This
will be true even if it does not involve the same part of the body.
If a pre-accident, or post-accident, health problem has an impact
on your ability to work or your life expectancy, the railroad is entitled
to introduce evidence of such a problem to reduce its potential damage
award. To illustrate, let’s
assume your normal work-life expectancy is an additional twenty years.
Due to the negligence of the railroad, you can no longer work.
However, a condition such as cancer, reduces your life expectancy
to ten years. The railroad
will only have to pay ten years of future lost wages.
The foregoing simply serves to illustrate generally what
we are referring to when we discuss a pre-existing condition.
Our laws are premised upon the concept that we are responsible for
the harm that we cause and not conditions that we have not caused.
The FELA recognizes this basic concept of fairness in providing
that the railroad is responsible for those injuries which it negligently
causes “in whole or in part.” If
the railroad negligently aggravates a pre-existing condition and causes
either additional injury or disability, you are entitled to recover for
this additional damage. For example, after returning to work from a prior back
injury, you sustain an additional injury, you are now entitled to receive
compensation for the additional period of disability and the worsening of
any symptomatology that continues on.
If you cannot return to work, you are entitled to recover for the
additional injury to your work-life capacity.
Proof of these damages will require medical testimony, as well as
your own testimony, which will be evaluated by the jury.
In order to make this claim in a credible fashion, you must advise
your attorneys of your prior health problems so that they may introduce
the appropriate evidence. If
the aggravation consists of a subjective increase in your complaints of
pain, your failure to be forthright about prior conditions will severely
compromise your case. Your
credibility, coupled with your physicians’ testimony, is crucial to
establishing an aggravation of a pre-existing condition.
An excellent summary of the law is contained in a jury
instruction which has been approved by the Court. Assume you are injured on January 1, 2001.
Also assume that you had a pre-existing condition in the same part
of the body. A Court may
instruct the jury in the following fashion:
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There is evidence in this case that plaintiff had a
pre-existing injury or condition which existed prior to January 1,
2001. The railroad is
only liable for damages you find to be caused by the occurrence of
January 1, 2001. If you
find that plaintiff’s pre-existing condition made him more
susceptible to injury than a person in good health, the defendant is
responsible for all injuries suffered by the plaintiff as a result of
the defendant’s negligence, even if those injuries are greater than
would have been suffered by a person in good health under the same
circumstances.
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If
you find that defendant negligently caused further injury or
aggravation to plaintiff’s pre-existing condition, plaintiff is
entitled to compensation for all of plaintiff’s damages caused by
the incident, including that further injury or aggravation.
If you cannot separate the pain or disability caused by the
pre-existing condition from that caused by the occurrence of January
1, 2001, then the defendant is liable for all of plaintiff’s
injuries. Stevens v.
Bangor & Aroostook Railroad Co., 97 F3d 594 (1st
Cir. 1996).
Provide
your attorneys with an accurate medical and accident history so that they
can argue on your behalf for an instruction similar to the one above.
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