Had an car accident four months ago, rear ended. Two months before accident my Dr. told me have epicondylitis (Golfer's elbow) and referred me for PT pain wasn't as bad. After accident pain got worse and weak PT don't help me even medication in couple weeks I'm getting a cortisone shot.
Under Massachusetts law you recover damages to the extent that the accident aggravated a pre existing condition. Insurance companies incorrectly exaggerate the fact that there was a condition or other injury before the accident so they should not have to pay. But, that is not the law in Massachusetts.
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Sorry to hear about your golfing elbow. You should hire a PI attorney right away as your elbow may have been worsen due to the accident. Also, if you are an executive that depends on golfing to get clients or sales, you may be able to claim diminished ability to play gold (quality of life). Best of luck.
Absolutely. It is well settled law in Massachusetts that a wrongdoer" takes the victim of his negligence as he finds him". Clearly, the wrongdoer is responsible for the worsened condition of the victim. That being said, the conventional wisdom amongst trial lawyers is that jurors do not like aggravation cases. Skillful defense (Insurance Co) lawyers argue that the victim was already like a broken egg. Always consider an out of Court settlement discussion in an aggravation case.
The answer to your question, and the value of your case, will depend to a great extent on how the medical records and opinions of your treating doctor document the differences in your elbow from before and after the accident. Having a pre-existing condition does not mean that your are not entitled to receive compensation for the injury to your elbow, but it does complicate things as you want to be able to prove the role that the accident played in causing an increase in your symptoms. It is always wise to have an experienced personal injury lawyer represent you if you are injured in an accident and in your case the need is even greater due to that issue.
Pre-existing conditions are not covered, however, activation or aggravation of a pre-existing condition is covered. It appears you will need an experienced personal injury attorney to assist you with this claim. PI attorneys are used to dealing with people who have been previously injured or have a pre-existing medical condition which has been aggravated by the trauma of a collision. Speak with an attorney as soon as possible.You should obtain needed medical care and treatment immediately and follow the doctor's advice. Do not give any statement to the adverse party or insurance company nor grant them access to any medical records. Photograph the injuries and the damage done to any property. Contact a personal injury attorney in your area as soon as possible so that you can protect your rights. You may also find it helpful to review the Legal Guides I have published on Avvo.com dealing with many of the issues you are now facing. The Guides can be accessed through my profile page on Avvo.com.
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Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
Legally, the fact that you have a pre-existing condition is irrelevant. The driver who rear ended you is responsible to the extent that the accident made your condition worse. Of course, as a practical matter, figuring out what is old and what is new is very tricky. You need to be very clear with your doctors and therapists about what is different. It will be interesting to find out from your doctor about whether you would have needed the cortisone shot if you did not have the accident. There is no reason to be afraid to bring a pre-existing injury case. I put a case in suit, and got good money for a client who re-injured his knee in an accident when he was leaving the hospital after knee surgery. However, you have to be very careful, and ultimately your doctor has to be very careful to differentiate the old from the new. You also need a lawyer with significant experience in this area. All the insurance adjuster, and all the insurance lawyer is going to want to talk about is the old injury. If the records are not clear, the jury can be easily confused. If they are clear, the insurance company will likely want to settle.
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