Posted on: 16 December 2015
You might not think that an old injury from an accident years earlier could come back to haunt you. However, it could play a major role in determining the outcome of your current personal injury case. Depending on their nature, preexisting injuries could be a blessing or a curse when it comes to your case.
It Could Limit Your Recoverable Damages
In an effort to minimize recoverable damages, insurance companies may argue that the pain and suffering caused by an injury sustained during a current accident is actually linked to a preexisting condition. For example, if you previously suffered an injury several years ago and wind up with a similar injury in your current accident, the insurance company could argue that any pain you've suffered since was not directly caused by the recent accident, but instead aggravated your previous injury.
Although having a preexisting injury won't preclude you from recovering damages in your personal injury case, it could have a negative impact on the value of your claim. For instance, if you have a significant history of medical treatment for foot or back pain and the accident further aggravates those issues, you could end up with a reduced award amount, since the pain is not directly attributable to the accident itself.
However, your ability to recover damages won't be affected by previous conditions recently discovered by doctors during treatment of your current injuries. These discoveries are often treated as "incidental findings" that have little to no bearing on your award amount. Many states also utilize jury instructions that compel jurors to award accident victims fair compensation for their aggravated injuries, even if there's little to no award for the accident itself.
Your Medical History Could Be Used Against You
The insurance company's claim representative may ask you to sign a medical authorization so it can obtain medical records and bills pertaining to the accident. It'll also give them permission to speak directly to your doctor about your injuries and other aspects of your recovery. However, that's not all that the insurance companies can find out once a release is signed.
Insurance companies can also use authorizations to dig into your medical history in search of previous injuries similar to those you've suffered recently. If they strike gold by unearthing a previous injury of a similar type from years earlier, the insurance company may have enough proof to convince the court that your preexisting condition possibly contributed to your current injury.
In short, you should never give a claim representative verbal or signature authorization to directly obtain your medical records. Instead, you should obtain these records yourself and reveal only pertinent information pertaining directly to your current injuries.
Disclosure is Always Best
Although it may be tempting to hide a preexisting condition in hopes of it not affecting your case's outcome, doing just that could prove devastating to your case. Failing to disclose a previous injury could create credibility issues if they come to light during the court hearing. For this reason, it's important to disclose to your attorney any previous injuries you've suffered prior to your current injury, especially if the previous and current injuries are in the same area.
Keep in mind that the burden of proof for determining whether or not a previous injury has a causal relationship to your current injury lies with the opposing party. Pertinent questions usually include:
- When did the prior injury take place and where?
- What and how long did it take for medical providers to treat your injuries?
- Was there an MRI scan involved?
- How long did it take to recover and were you completely recovered prior to the recent accident?
Disclosing the nature of your past injuries to your attorney can help provide a credible defense against a preexisting injury argument, especially if the injury itself has completely healed and causes little to no pain.
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