By Joe Miller, Esq.
Copyright 2011 Joe Miller Law, Ltd. (previously Accidental Injury Advocates, Ltd.)
Let’s look at a very common situation. You have a “bad back” or a “bad knee” or other long-standing injury which bothers you from time to time. You may even go to the doctor or chiropractor and get treatment for these conditions, but you really try not to miss any work.
One day, you suffer a serious injury on the job which turns your chronic injury, which was once just a nuisance, into what now appears to be a very serious condition, which will probably require surgery and now completely prevents you from working. In fact, your doctor has even told you that you will probably never be able to return to your old job again. You may even be completely disabled because of this injury.
Of course, your employer and their insurance company are quick to say that they are not responsible for your treatment or your disability, because it all comes from an “old injury.”
And they are wrong. The law in Virginia is 100% clear that your employer is responsible for any aggravation of a pre-existing injury, and all of the disability that it creates, as well as all of the treatment that relates to the injury.
Let’s look at a couple of Virginia Court of Appeals cases on the subject of the aggravation of pre-existing conditions under Virginia Workers Compensation Law.
In the cases of Southern Ironworks v. Wallace (1993) and Corning, Inc. et al. v. Testerman (1997), the Virginia Court of Appeals said that a finding by a doctor that a pre-existing condition was “accelerated or aggravated” by an injury sustained on the job makes the disability resulting from the aggravation compensable.
In the Southern Ironworks case, a pre-existing arthritic hip was aggravated, according to the injured worker’s physician, when the worker sustained a low back strain. Although the back strain got better, the worker’s health-care providers opined that he was disabled as a result of severe osteoarthritis of the left hip, which was aggravated by the back strain. The orthopedic surgeon stated that the back strain work injury, although it did not cause the arthritic condition in the hip, “brought the problem to the fore” and aggravated the pre-existing condition, causing it to become more symptomatic. The Court of Appeals therefore sustained the finding by the Commission that the injured worker was entitled to all benefits based on the disabilities from his aggravated arthritic hip.
In the Corning case, there was a similar result. Although the employee’s physicians found that he had pre-existing isthmic spondylothesis at L4-5, and that the injured worker had even had some low back difficulties and complaints before his work accident, he had not missed any time from work before his work injury. At the time of his accident, the plaintiff felt a sudden “pull” and “pop” in his lower back. His orthopedic doctor stated that the work injury exacerbated the pre-existing conditions in the low back. The Court of Appeals affirmed the finding by the Full Commission that the injured worker was entitled to full compensation, noting again that disability resulting from an aggravation of a pre-existing condition is compensable under the Virginia Workers Compensation Act.
So, the bottom line on these “old injury” type of cases, is that the employer and workers compensation insurance carrier “take the plaintiff as they find them.”
That means that if your doctor is able to testify or render an opinion in a letter, that more likely than not, the work injury that you suffered caused an aggravation or acceleration of the pre-existing condition, then the entire condition and disability resulting from that aggravation is going to be compensable.
“Compensable” for your purposes, of course, means that the employer is going to be required to pay your total disability workers compensation while you are out of work for the injuries, and also for any and all treatment, including but not limited to surgery, relating your injuries, even if those injuries pre-existed your work injury.
Of course, for any of this to happen for you, it is absolutely essential to make sure that your doctor is on board. They must be willing and able to say, in writing and/or under oath, that your old or pre-existing injury was aggravated by your work injury. When they give that opinion, they have to use certain “magic words.” The magic words are “with a reasonable degree of medical certainty,” or “more likely than not,” or “probably.”
If your doctor is unwilling to do that, but instead is unsure of his or her opinions, and wants to only say “possibly” or “maybe,” then it will be much more difficult for you to prevail.
Joe Miller, Esq. has been representing injured workers throughout the Southeast for over 23 years. He has taken countless doctors depositions and has the expertise required to succeed in your claim. Please contact us with any questions you may have about your Virginia work injuries.