Workers’ compensation claimants have the right to demand that their employer pay for all medical bills for injuries related to a workplace accident or an occupational illness. The insurance carrier for the employer is also required to pay temporary benefits (2/3rds of your average weekly wages – with some adjustments) until you can return to work or alternate, light duty work is found for you. Once you’ve reached maximum medical improvement (MMI), you may be evaluated to determine if you have a permanent impairment as well as permanent work restrictions due to your workplace injury. This evaluation includes a permanency rating which details the type of disability you have in your injured body part(s) and the severity of the disability as it relates to the types of work you will be able to do, and not do, going forward. Additional work loss payments are paid depending on the impairment rating and whether you are capable of returning to your pre-injury job.
Insurance companies for the employers are always looking for a way to limit how much they have to pay. One classic strategy that employers use is to argue that your injuries and inability to work are due to a pre-existing condition. If the employer can show you have a pre-existing condition:
- Your right to benefits could be denied;
- Your right to medical treatments (and payment for those treatments) could be reduced or denied;
- Your right to temporary wage loss benefits could be reduced or denied;
- Your right to permanent disability benefits could be reduced or denied.
Whether these rights are denied or reduced depends on the relationship between any prior condition and your current medical condition.
If the pre-existing condition dose not relate to your current medication condition (for example, your knee now hurts when the pre-existing condition was a broken arm), then your right to new benefits should not be affected. Likewise, if he pre-existing condition fully healed before your current accident, then your right to benefits should not be denied.
What is a pre-existing condition?
A pre-existing condition in the context of an injury case is a form of injury for which a worker has previously received medical treatment or for which a diagnosis of an injury has been made in his or her current work injury case. It used to be the case that if you had a pre-existing medical condition, your own health insurance wouldn’t pay for treatment for that condition – unless a sufficient length of time had passed since the last treatment. Due to the Affordable Care Act, insurance companies are now prohibited from denying payment for any necessary treatments – even if you have a pre-existing condition.
While the ACA helps with medical bills, it doesn’t pay any wage compensation. In addition, if you use your own health insurance, you have to pay the deductible and copays. Workers compensation doesn’t require deductibles or copays. If your claim is accepted or ruled compensable, the workers compensation insurance company must pay all reasonable and related costs in connection with your work injury.
Pre-existing conditions vary from worker to worker and patient to patient. They include conditions due to injury such as broken bones and arthritis due to surgeries. Pre-existing conditions also include diseases such as heart disease and cancer. Whether your pre-existing condition will negatively affect your workers comp claim depends on a variety of factors, not the least of which is where your case is pending.
Is your current medical condition related to your pre-existing condition?
In most cases, your physicians will make the initial determination about whether you have a pre-existing condition. This determination is based on a number of factors including:
- A thorough review of your prior medical records. Previous doctor reports should document any treatments you had. They’ll document any diagnostic tests, such as x-rays, MRI’s or CT scans– if you had diagnostics. If you never received any treatment for your prior injury, then your current doctor is less likely to be aware of you pre-existing condition.
- A physical examination. A scar from a prior surgery, for example, is an immediate clue that you had a prior injury. On the other hand, if your prior injury has completely healed, then a physical exam is less likely to show the prior injury.
- An oral examination. Your physician will likely ask you about any pre-existing conditions. You need to be as candid and forthcoming as possible. Never, never try to lie or hide any pre-existing condition. The Insurance companies have a vast network of computer surveillance and of course, the power to subpoena records. If your doctor and your attorney know about any relevant pre-existing conditions, they can be dealt with. A surprise piece of information that is dug up by the defense and thrust into your doctor’s face is less likely to be effectively dealt with and may cause your doctor to be hostile towards you.
It is important that you speak with your North Carolina or Virginia workers’ compensation lawyer as soon as possible. Often, your employer will go on a fishing expedition to try to show you have a pre-existing condition. There are limits to what employers and even physicians can ask about your prior medical history. Your lawyer can explain these limits. But we will say this repeatedly—the worst thing you can do is try to hide a pre-existing condition. This will destroy your credibility, not only with the Workers Compensation Commission, but with your doctors as well.
Is the pre-existing condition related to your current injury or illness?
Whether the injury is “related” to a pre-existing condition is a legal question. The main issue is one of determining how much the new accident caused your injury and how much the prior condition is contributing to your need for medical benefits and work loss payments. Factors that need to be considered include:
- Were you still treating for prior medical condition?
- Did the current injury worsen your prior medical condition?
- Is the current injury different than the new one? For example, if your prior injury was a torn meniscus and your new injury is a torn ligament, then the injuries (even though both may be to the same knee) are fairly different.
- Was the pre-existing condition due to another workplace accident, to a personal injury accident, to old age, or to some other cause?
- The type of injury. Some injuries like a broken arm should fully heal within a few months. Other injuries, like a bad back can be chronic and last for a lifetime.
- The severity and trauma of the current injury. If you had a pre-existing, active condition, and the trauma associated with the new injury was very slight, it may be harder to prove that you have a new injury.
Jurisdiction Matters. A lot really depends on what jurisdiction you are proceeding under. In Virginia, believe it or not, the law relating to medical causation is actually fairly liberal. First, as with any work injury, you just show that you suffered an injury by accident, which means that you suffered a sudden mechanical change in your body as a result of a trauma.
Then, once you can prove that, if ANY part of your current disability or need for treatment comes from the new injury by accident—even if it’s only 1%— then the entirety of the claim is compensable. So yes, the law on this is very helpful for injured workers in Virginia.
Let’s take an example. Say you had a pre-existing herniated disc in your back. You may have even had surgery, but the surgery was about a year before the current accident, and you’ve done fairly well. In fact, you’ve resumed your full duties at work for the last three months.
But then your co-worker drops his end of a heavy object which pulls you down and causes you to have a “pop” and then horrific pain in your back. Your left leg goes, and stays completely numb with shooting pins and needles down your left thigh and leg. Your Neurosurgeon says it’s a re-aggravation of your previous injury, takes you 100% out of work, and also says you will now require a more extensive fusion surgery on your lumbar spine.
In Virginia, unless your Neurosurgeon or Orthopedic can say that the new accident had NOTHING to do with your current inability to work, then you should have no problem moving forward with a new claim on your back.
How is this determined? In Virginia, we typically will write your doctor and ask him to answer a few questions in the form of an Opinion Letter which sets forth
- Whether you suffered a sudden mechanical change as a result of the new injury; and
- Whether the new injury contributes—even in the slightest degree—to your current disability and need for treatment.
So long as the answer to both of those questions is “yes,” from your authorized treating doctor, you should be fine and the entirety of your new claim should be compensable.
North Carolina Workers Compensation Pre-Existing Injury Law—Not Quite as Liberal
Unfortunately, North Carolina Workers Compensation Law is not quite as liberal as Virginia in relation to the law on pre-existing injuries.
First of all, except with respect to back injuries, North Carolina requires that you show some type of actual “slip, trip, or fall,” when attempting to prove that you suffered an “injury by accident.” Accordingly, a “leg giving way” or a twisting of the knee, without a fall to the ground or slip, would not be considered an “accident” under North Carolina Law, where it might in Virginia. That being said, North Carolina has carved out an exception for back injuries. All that need be shown is a “sudden traumatic event” if you’ve suffered a back injury. This could be something as simple as feeling a sudden “pop” in one’s back as one is lifting something heavy at work.
But of course, as in Virginia, once you have established that you have suffered an accident, what happens if you have a pre-existing condition in a North Carolina Workers Compensation Case? Unfortunately, things are not quite as easy as in Virginia.
Let’s use the example we used in Virginia—you suffered a pre-existing back injury and surgery, and you’ve done fairly well and returned to full duty.
Now you’ve re-injured the same back in a new North Carolina Workers’ Comp Case, and your doctor pulls you 100% out of work and says that you will require a more extensive back surgery. What will you have to prove to show that this is separate from the old injury?
North Carolina Law is similar, but not quite as liberal, as Virginia on this issue. The law in North Carolina is that where a nondisabling condition is aggravated or accelerated by an accidental injury from employment, so that the worker is now disabled, then the employer must compensate the employer for the entire resulting disability. In other words, just because the injured worker had some underlying condition that made the current injury worse, there is no “apportioning” done as between what was there before and what is wrong with the employee now. The entirety of the current disability is compensable.
That being said, North Carolina has the extra requirement that the employee prove that the work-related accident “contributed in some reasonable degree” to the plaintiff’s disability. The injured worker must prove that it is more likely than not that the accident was a “causal factor resulting in the disability.”
So that standard is a little higher than Virginia’s causation standard, which sets forth that ANY contribution by the new injury to disability is enough to make the entire claim compensable. North Carolina requires a little more than that—a “reasonable degree” of contribution.
How does one prove this? Again, as in Virginia, an opinion as to whether an aggravation of a pre-existing condition rests entirely with the authorized treating physician. If the physician is able to state that more likely than not, the new injury contributes in some reasonable degree to the current disability, then the entire claim is compensable.
Unfortunately, unlike Virginia, the North Carolina Industrial Commission does not accept medical opinion letters as testimony or evidence, without sworn testimony. Accordingly, if a matter is proceeding to Hearing in North Carolina, the deposition of the doctor must be scheduled to elicit his or her testimony for hearing.
That being said, oftentimes the production of a favorable opinion letter well in advance of any deposition of the doctor will give a clear indication of the way the physician intends to testify and may result in an agreement by the defense to accept the claim.
North Carolina and Virginia workers’ compensation lawyer Joe Miller Esq. is a seasoned workers’ compensation attorney. He’s helped thousands of injured workers, including many with pre-existing conditions, obtain a just recovery. He’ll fight to show the prior condition isn’t related to your new medical condition. To speak with an experienced work injury lawyer, call North Carolina and Virginia attorney Joe Miller, Esq., at 888-667-8295. or fill out our online contact form or our new online case evaluation form to streamline the process of having Mr. Miller review your case.
