Author: Richard C. Armstrong, Charlottesville, VA Personal Injury Attorney
Sometimes people injured in an accident think they don't have a claim if their injuries consist of an aggravation of a medical condition or injury that they already had before the motor vehicle collision occurred. However, that's not the law in Virginia or in most other states.
How Does the Law Protect Me If I Have a Pre-Existing Condition?
In Virginia, the law takes a very practical view of new injuries to those with pre-existing conditions. You are entitled to recover for the extent of the aggravation, but you cannot recover for the pre-existing condition itself.
In the model instruction that is read to the jury at trial, the principle of law is expressed this way:
"If you find that the plaintiff [the injured person] had a condition before the accident that was aggravated as a result of the accident or that the pre-existing condition made the injury they received in the accident more severe or more difficult to treat, then if you find your verdict for the plaintiff, the plaintiff may recover for the aggravation and the increased severity or difficulty of the treatment but the plaintiff is not entitled to recover for the pre-existing condition."
This jury instruction is something that the insurance companies often do not tell the injured claimant about. This instruction is favorable to claimants and keeps the insurance company or their attorney from trying to claim that the existence of a pre-existing condition means that the claimant cannot recover anything.
For example, suppose you were involved in an automobile accident and had muscular injuries to your low back (usually diagnosed as a "lumbar sprain"). X-rays and MRIs may reveal that you had a hidden degenerative condition that existed before the accident. You may have been completely unaware of this condition because it did not cause you any pain or other symptoms. In fact, it may never cause you any symptoms or problems. Such degenerative changes can, however, make your spine less resilient and less able to withstand traumatic injury, such as in a collision, and therefore these degenerative changes may cause you to suffer more injury, for that injury to be longer lasting, or for your injury to be less likely to heal at all.
Sometimes you may have some minor or occasional neck or back soreness that only flares up when you are very active, for instance when you are doing a lot of bending or heavy lifting that is not part of your regular routine. This may just be a nuisance or something that makes you more careful in your activities.
Should I Disclose My Prior Medical History?
If you are injured in an accident and make a claim, the insurance company of the at-fault party will likely try to make a big deal out of your prior medical history and any pre-existing medical conditions. If they can get you to give a recorded statement, the insurance companies will ask specifically about your prior medical history and any prior injuries or health problems. Since neck and back injuries are the most common injuries from motor vehicle collisions, they will certainly ask you about any neck or back pain you had before the accident, and if you have ever been told that you have any arthritis,degenerative changes, or degenerative diseases.
You are not required by law to provide a recorded statement to the defendant’s insurance provider. You should seek the advice of an experienced personal injury attorney before you opt to provide such a statement.
If your attorney cannot get the insurance company to make a reasonable offer and a lawsuit has to be filed, the insurance defense attorney is allowed to discover your prior medical providers and any prior medical history or treatment. The questions the adjuster or attorney will ask are designed to intimidate you and to lay the groundwork for making a low offer to settle your case. They want you to think that you can't recover for a condition you had before the accident, so you should be happy to take what we are offering. This is untrue—you are still entitled to compensation for new injuries and damages.
Avoiding a recorded statement could also help to later strengthen your case. If you have a significant medical history, and in a recorded statement made to the insurance company you were not completely forthcoming about your prior medical history, the the adjuster or defense attorney will later learn the truth through discovery and will use this to claim that you are being untruthful. Often they will compound the argument that you are probably being untruthful and exaggerating your recent injuries as well. (In legal terms, you would be labeled as having a "credibility issue" as well as a "causation issue"). If no statement is provided, the defense has one fewer weapon to use against you.
How Can an Experienced Attorney Help Me?
An injured claimant's medical records might show degenerative changes, disc disease, arthritis, or other "wear and tear" conditions. These are typical for an active person and at certain ages. Part of the responsibility of a personal injury attorney is to effectively contrast the difference between the claimant's life before and after the accident by using prior medical history and prior activities to highlight the fact that the claimant's pre-existing condition did not keep the claimant from leading a full and active life before the accident.
If you have a pre-existing condition but you didn't hurt before the accident, but you do hurt after the accident, then that difference is the only thing that should matter. In presenting this to a jury, a skilled attorney should point out that a pre-existing condition that does not cause any pain or symptoms doesn't really matter to a person; it is pain, stiffness, and soreness that matter, and those symptoms didn't exist until after the injury.
If you were not receiving medical treatment before the accident for the area of the body that was injured in the collision, your records will show that. If you were leading an active life working, playing sports, handling household chores, and doing your job without any difficulties, then a personal injury attorney should be able to easily prove that this accident did indeed aggravate a pre-existing condition. They should be able to demonstrate that the incident caused by the defendant (whether a collision, a fall, or some other cause) is the reason you have pain, stiffness, or other symptoms, and that you are limited in your activities as a result.
Sometimes an injured claimant's pre-existing condition has caused them to have some symptoms or treatment before the accident, but the accident has aggravated their condition and made it worse, requiring them to have additional or different treatment. An experienced attorney will determine how to best prove their client's aggravation. If a doctor’s opinion of your new injuries and how they have aggravated a pre-existing condition are not apparent in your medical records, then an attorney will typically meet with your doctor and review those medical records to obtain their informed opinion to strengthen your case.
How Can I Help My Doctor Provide Adequate Evidence For My Case?
Sometimes the medical history and records show that a claimant was actively treated for a pre-existing condition before the accident. Active treatment just prior to an accident can make it more difficult for the doctor determine to what degree the accident may have aggravated a pre-existing condition, and sometimes the doctor may be unable to determine if there was any real change in your pre-existing condition as a result of the accident at all.
To help your doctor, it is important for you to explain what your activities were before the accident, and how they have been limited since the accident due to your aggravation. This assists your doctor to make a more thorough examination and to document those changes that have occurred since the accident.
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 See Virginia Model Jury Instruction No. 9.030.
 From the age of about 18 years old, we all have wear and tear type changes, typical of normal aging, that take place in our spines. Doctors call these changes "degenerative." Although they can progress to a point where they cause pain or stiffness, for most people they do not cause any symptoms or problems at all, and may never do so. In one study of asymptomatic persons who had such degenerative changes which had progressed to the point where they could be seen on x-ray, only 15% developed any pain or symptoms over the next 10 years. See http://www.ncbi.nlm.nih.gov/pubmed/11707711.
 The term "arthritis," as used by medical professionals with regard to the spine or other joints, usually just means that the aging processes, the normal wear and tear, has progressed to a point where it can be detected on x-ray. It does not mean that the person has any pain or other symptoms, and it does not mean that the person has a systemic condition like "rheumatoid arthritis," which is a progressive condition that often causes pain in many joints. However, insurance companies often try to benefit from any confusion about this, and want to make it sound like the person with arthritis already had a painful condition when, in fact, they did not.