Recovering Damages for Pre-Existing Injuries

Let’s say that you are injured in an accident. Through your personal injury attorney, you make a claim with the insurance company or to the liable defendant. Your attorney contacts you and says that your claim is being denied, because you have what is called a pre-existing injury.

What is a pre-existing injury, and can you really be prevented from recovering damages, because of a pre existing injury?

Injury Before Your Accident

A pre-existing injury, as the name implies, is an injury or illness or ailment that you had that predated the accident. By law, the injuries that you sustain in an accident, must be caused by the accident, for you to be entitled for compensation.

So, when an insurance company says that you had a pre-existing injury, they are really saying that your injuries aren’t caused by the accident—they were already there before the accident, and thus, couldn’t be caused by the accident.

A Common Defense

This is a common defense that insurance companies and Defendants use, simply because as we get older, many of us have had medical conditions, injuries, or accidents. Few of us get to be 30, 40, 50 years old or older, and we have been completely healthy and never had any kind of injury, ache, pain, trauma, or accident at all.

So when we get into an accident, an insurance company or Defendant looks into our past, and tries to say that that back injury that you say was caused by the accident, really is just because you are older, or because of a sports injury 10 years ago, or because of arthritis, or because of repetitive motion at work—anything other than the actual accident.

Can You be Compensated Even With a Pre-Existing Condition?

By law, you are entitled to recover damages for injuries in your accident, even if you have a pre-existing injury, so long as the accident aggravated, or made worse, whatever pre-existing condition that you had.

If the jury can, it must separate the part of your pain, injuries, or disabilities that existed before the accident, with the pain, injuries or disability that were made worse because of the accident.

So, if you had a back injury that made you a little stiff before the accident, and now, after the accident, you can’t walk normally, the “increase” in the disability from before and after the accident is compensable in your personal injury case.

Of course practically this can be very difficult to do. A jury may not be able to separate how much your pain or disability has gotten worse after an accident. If that’s the case, then the jury must assume that all of your pain, limitations, or disabilities are caused by the accident—even if it is clear that you did have a pre-existing injury.

Are you prepared for the defenses the insurance company will put up against you in your injury case? We are. Call the Knoxville personal injury attorneys at Fox Farley Willis & Burnette, PLLC, for help today.

Sources:

tnwd.uscourts.gov/JudgePham/instructions/tnpatterninst/msword/chapter_14.doc

advocatemagazine.com/article/2015-april/how-plaintiff-s-pre-existing-conditions-affect-general-damages