Friday, January 15, 2016

What If I Have a Pre-Existing Condition?

Let's cut to the chase:  If you know you have a pre-existing condition, there are three big issues for us to discuss.

1.  Did the pre-existing condition contribute to your workplace injury?  Usually, if you have lumbar disc degeneration (as shown on an MRI), and then you have a lumbar disc herniation from working, the judge will likely find that your pre-existing condition contributed to your injury.  Many times people do not know they have disc degeneration until they get an MRI.  But read on!

2.  If your pre-existing condition was caused by working for the same employer, then you likely can still recover workers compensation.  The sticky situation is where the pre-existing condition was caused by working for a different employer.  In that situation, your lawyer will need to get some details from you and look through your medical records.

3.  Now here's the biggie--the rule from the Utah courts and the Utah Labor Commission:  "Whether an injury arose out of or in the course of employment, is difficult to determine where the employee brings to the workplace a personal element of risk such as a preexisting condition. Just because a person suffers a preexisting condition, he or she is not disqualified from obtaining compensation. Our cases make clear that 'the aggravation or lighting up of a pre-existing disease by an industrial accident is compensable . . . .' (Citation omitted.) To meet the legal causation requirement, a claimant with a preexisting condition must show that the employment contributed something substantial to increase the risk he already faced in everyday life because of his condition. This additional element of risk in the workplace is usually supplied by an exertion greater than that undertaken in normal, everyday life."

To restate the rule, if you are doing some really tough work (e.g., trying to move an object that weighs 900 lbs by hand, or repetitively lifting 30-lb boxes all day long, or you slip and fall), then you likely have a good case because normally people don't do those kinds of things outside of work.  On the other hand, if you have a pre-existing condition and have a flare up at work when you bend over to lift a 30-lb box one time, you will likely be denied workers comp because--as the law says--you just as easily could have thrown out your back moving a 30-lb piece of luggage, which people frequently do in their non-employment life.  This rule comes from the Allen case decided by the Utah Supreme Court in 1986.  This rule has been applied numerous times by the courts and the Labor Commission.  Your lawyer will want to find some good case law that supports your claim.  (As of today, I have summarized 281 workers comp cases since I believe it is important to keep up with the Labor Commission's decisions.)

So, if you have a pre-existing condition, do not give up.  Rather, just be prepared to tell your lawyer the nitty-gritty details of why you believe your job helped cause your injury.  Have a question?  Call me at (435) 592-1235 or visit