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Recovery for Aggravation of Preexisting Degenerative Conditions


Some people are more susceptible to injury because of a preexisting degenerative medical condition. That preexisting degenerative medical condition may, however, not be causing the person any pain. If a preexisting degenerative medical condition that is not causing pain, starts causing pain as the result of trauma caused by the negligence of another, then the person is entitled to full recovery for any aggravation or worsening of that preexisting degenerative condition. Even if you have a preexisting medical degenerative condition that was causing pain, if that condition is made worse in any way then you are entitled to compensation for the fair and reasonable value equivalent to the worsening of that condition.

A degenerative medical condition is the progressive natural break down of the body over time. We all have different genetics and different natural weaker areas of the body. Those weaker areas of the body in a person will be more likely or susceptible to injury in a trauma, such as a car accident or a fall.

Insurance companies try to use degenerative conditions as a way to explain away your pain caused by trauma of their insured. Insurance companies argue that they shouldn’t have to pay to fix a condition that was already there. It is the pain, however, that is the key. If the traumatic event causes the pain to present or increase, the law says that you can recover damages. Only experienced personal accident or injury attorneys know how to defuse the insurance company’s bunk arguments.

Degenerative Disk Disease of the Spine

Degeneration of the disk in the spine can cause severe pain and interfere with one’s daily activities. The disk is the shock absorber between vertebrae that helps us to move. Disk degeneration is a normal part of aging, and for most people does not cause a problem. When the disk degenerates, the it will also dehydrate, reducing its ability to act as a shock absorber. A reduction in the space between the vertebrae is caused and may also cause disks to bulge outward.

This natural degenerative process makes people more easily hurt in an accident as the result of trauma. Thus, less force is required to do the same damage to the spine than a younger or stronger person. This is known as a preexisting condition under New Jersey law. If a trauma resulting from the negligence of a party causes a non-pain producing degenerative condition to be pain producing, that negligent party is responsible for the full extent of the losses resulting from the injury.

If you have a pre-existing or degenerative health condition, you may be at increased risk of aggravating it in a car collision or severe fall down. Insurance companies frequently try to deny paying claims to accident victims who have existing health conditions. Often, they argue that an accident had nothing to do with a victim’s health problem, which was there all along.

Fortunately, the law is on the side of victims whose conditions are aggravated by vehicle crashes, fall downs and other accidents.

Take the Injured Person as You Find Them or the Eggshell Plaintiff Rule

Just because an accident victim has pre-existing conditions does not remove responsibility from an individual who is responsible for an accident, as insurance companies try to argue. Rather, the “eggshell plaintiff” rule holds that some victims are more likely to suffer from worsened injuries in an accident because of their pre-existing weakened conditions. In New Jersey there is a model jury charge on the aggravation of pre-existing conditions. At trial, our firm has been able to argue for a slightly modified version of the existing model charge that we feel more accurately describes the current state of the law. The following charge to the jury is from our case and is a slightly modified version of the model jury charge. The charge refers to her because the plaintiff in that case was a female:

In this case, evidence has been presented that Plaintiff had a condition before the accident/incident — that is plaintiff had degenerative conditions in her neck and back.

I will refer to this condition as the preexisting condition. There are different rules for awarding damages depending on whether the preexisting injury was or was not causing plaintiff any harm or symptoms at the time of this accident.

An injured person is entitled to recover full compensation for all damages that proximately result from a defendant’s tortious act, even if some of the injuries might not have occurred but for the plaintiff’s preexisting physical condition, disease, or susceptibility to injury. The foreseeability to the defendant that the plaintiff might be injured by his or her conduct does not affect liability, as the defendant must take the victim as the defendant finds him or her.

Obviously, the defendant in this case is not responsible for any preexisting injury of plaintiff. As a result, you may not award any money in this case for damages attributable solely to any preexisting condition.

I will now explain what happens if plaintiff was experiencing symptoms of the preexisting condition at the time of the accident. If the injuries sustained in this accident aggravated or made plaintiff’ s preexisting condition more severe, then plaintiff may recover for any damages sustained due to an aggravation or worsening of a preexisting condition but only to the extent of that aggravation. Plaintiff has the burden of proving what portion of her condition is due to her preexisting injury. Plaintiff is entitled to damages only for that portion of her injuries attributable to the accident.

If you find that Plaintiff’ s preexisting condition was not causing her any harm or symptoms at the time of the accident, but that the preexisting condition combined with injuries incurred in the accident to cause her damage, then Plaintiff is entitled to recover for the full extent of the damages she sustained.

I will now explain what happens if plaintiff had a predisposition or weakness which was causing no symptoms or problems before the accident but made him/her more susceptible to the kind of medical problems she claims in this case. If the injuries sustained in this accident combined with that predisposition to create the plaintiff's medical condition, then plaintiff is entitled to recover for all of the damage sustained due to that condition. You must not speculate that an individual without such predisposition or latent condition would have experienced less pain, suffering, disability and impairment.

Insurance Companies’ Efforts to Deny Claims Where Degenerative Conditions Present

I would say that insurance companies favorite defense in denying claims is that the condition was preexisting or degenerative. I would also say that most of the time the defense is not valid at all. The preexisting condition may make the claim more difficult to prove but many times not as difficult to prove as you would think. At a minimum, call an attorney to explain your situation and see if your aggravated injury from a trauma can be proven.

If you’ve begun experiencing pain due to the aggravation of degenerative disk disease, disk herniation or other degenerative health condition following an accident, the

insurance company of the person responsible for the crash may try to deny your claim. Attorneys for the insurer will argue that they are not liable for the expenses related to the injury because you already had the injury prior to the crash.

However, in determining who is responsible, the court or jury will consider your level of pain and the extent of your prior injury. If your pain appeared or increased and the condition worsened or was aggravated following the crash, the law allows you to recover damages, including the costs of medical treatment including any necessary surgery to repair the problem. The law allows for recovery of any increased injury beyond the existing level of the prior degenerative condition. Therefore, the court or jury conducts an analysis of the prior condition as compared to your current state of injury. Any worsening of your prior condition resulting from the trauma of an incident caused by another is the responsibility of the negligent party. The jury then weighs the evidence of the extent of your harms and losses resulting from the trauma and renders a fair and reasonable amount equal to those harms and losses.

Making Sure You Disclose Prior Injuries

One of the biggest case killers is when a person does not disclose or tries to hide a preexisting condition in a lawsuit. Always be honest and just disclose any prior problems as you can still recover if those conditions were aggravated by the trauma of an accident caused by the negligence of another.

As you work with your personal injury attorney, you must disclose any prior injuries, even if you feel that they are not relevant or were minor. By understanding your overall health picture, your attorney can mount the best case to ensure that you receive fair compensation and defeat any defense by insurance companies that the degenerative condition is the reason for your pain.

The insurance company will attempt to gain access to all your medical records to defend against your claim. At the inception of the case, our firm runs the same search insurance companies do to make sure you have no prior injuries to the same area involved in the trauma of your accident from which compensation is sought.

Please feel free to contact our office for a free consultation to determine whether you have a case and to see if we can help you overcome any insurance company defense that your preexisting condition is to blame for your harms and losses.

PA NY/NJ Injury


John J. Scura III

John fights hard for his clients and tries to educate them so they understand what is going on with their particular legal problem. John has been Certified by The Supreme Court of New Jersey as a Civil Trial Attorney. Whether it is a personal injury case, bankruptcy case, litigation case or other type of matter, John wants his clients to participate in the decision making process toward solving their problem in the best way possible.

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