Claim Worth: Prior Injuries
A”pre-existing injury” means you have a medical history of hurting in area(s) that you are claiming were hurt in your car wreck. Pre-existing injuries complicate personal injury settlements because the insurance company will take the position your injuries were not caused by the car accident but by some prior event. If you were to file a lawsuit on your claim, the defense lawyer would turn over every stone looking for evidence you were having problems prior to the accident. Defense attorneys will go after all doctors’ medical records, employment records, social security records, and health insurance claims information to name a few.
Owning The Injury
Your credibility is a key factor in your personal injury claim as well as down the road if you have to go to trial. Simply admit that you were injured sometime in the past. You should always admit to prior injuries and do not try to lie or cover them up. This does not mean the car accident did not aggravate, or re-injure your prior injuries. In fact, you are almost always entitled to compensation for the aggravation or re-injury to pre-existing conditions/injuries.
Arguing Around Pre-Existing Injuries
Prior Injuries Asymptomatic
Asymptomatic is a medical term meaning you have recovered from an illness and no longer have symptoms. As with many things in your claim, you can simply state in your Demand Letter and to the adjuster that you were asymptomatic prior to the collision. The better way, however, is to gather medical evidence. Obtain and look through your medical records from before the accident and note any time the medical professional stated you were all better, no longer hurting, etc. A good example of this is with orthopedic records. You may have hurt your lower back several years ago and seen an ortho. You treated and it go all better. If the insurance adjuster knows about this prior injury, you can obtain your orthopedic records from prior to the accident and show the adjuster how you were all better from that injury according to your doctor. You can also look at your pharmacy records to argue that when you stopped taking pain medication from the prior accident as a good indicator you no longer hurt.
Another source of “evidence” that your old injury was asymptomatic is your lifestyle. If you were travelling, vacationing and participating in sports or recreational activities, this is evidence your old injury had healed such that you could do these things. Do you workout at a gym? If so, see if your gym can run a report of your sign-ins before and after the accident. This will show the adjuster how your activity level dropped after the accident, indicating your old injury was not hurting you just prior to the accident.
Aggravation of Pre-Existing Injuries
Most states permit damages for accidents that aggravate an existing injury. This is known as an “aggravation of a pre-existing condition.” This concept implies you were still suffering from a prior injury but that the accident made it worse, or aggravated it.
For example, suppose you hurt your back 2 months prior to your car accident, but that your back had almost healed. Your pain level was a 2/10 on your worst days. Then the accident happened. The accident took your fragile back and sent it back to its worst. Your pain is now a 9/10 and you are right back to where you started in terms of your injury. In this example, you are entitled to the difference between the 2/10 and the 9/10. You will need to figure out some way to put a value on the difference. One suggestion is to figure out what your injury is worth assuming you did not have a prior injury. Then reduce its value by a percentage that represents the prior injury.
Your medical records can also help. If you discuss the old injury with your doctor, ask him/her to apportion injury between the old and new injury. Your medical records may also show different kinds of pain for your old vs. new injury. You may have described your old injury as dull and aching back while your new injury is a stabbing and shooting pain radiating down your leg. And in the case of spine injuries, sometimes radiology reports from before and after the accident will show that your disc injuries are at different cervical levels.