As humans age our bodies begin to undergo a complex series of changes. At the cellular level, cells and tissues simply wear out or are weakened. Our muscle tone declines. Our arteries stiffen. Starting at age 35, our bones begin to lose density and become more brittle. Once healthy humans begin to develop physical conditions that have the ability to maniest themselves into some form of physical disability.
This natural aging process, particularly in regards to the aging process of one's spine, is often quickly seized upon by insurance company adjusters as evidence that a personal injury client has a 'pre-existing condition.'
A pre-existing condition is physical or mental health condition that the personal injury client had before the injury-causing incident. Insurance company adjusters use these pre-existing conditions to justify a low settlement offer to personal injury attorneys. The adjuster supports the low settlement offer by commonly arguing that should the case go to trial before a jury, the insurance company's attorneys will introduce the client's medical records and claim that the client's injuries pre-existed the injury-causing incident.
There are three types of pre-existing conditions:
A client with a pre-existing condition is still entitled to recovery for their damages in cases in which the injury-causing incident causes new pain or in which a pre-existing injury is aggravated. Only in cases in which the injury is the same before the incident as it is post-incident should the client not recover for his or her damages. For example, a motor vehicle collision client who had a broken, but untreated arm before the collision cannot claim damages for the broken arm post-collision.
It is important to remember, when dealing with insurance company adjusters, that pre-existing conditions, such as degenerative disc diseas, can either be symptomatic (showing symptoms, such as pain) or asymptomatic (having a condition, but without any symptoms, such as pain). Degenerative disc disease, common in individuals over 40 years of age, is often asymptomatic, but will often show up in a in X-Ray or CT scan results. Insurance adjusters are quick to seize upon these results (commonly found in ER medical records) as proof that the personal injury client was suffering from back or neck pain BEFORE the incident. This often erroneous assumption can be countered by providing a thorough accounting of the client's medical records which reveal the client never complained of pain in the years prior to the incident.
Clients who experience weakness as the result of the aging process prior to an injury-causing incident are still protected by Ohio case law. The legal doctrine behind these favorable court decisions is called the 'thin-skull rule' or 'eggshell skull' rule. In short, the doctrine means that the negligent party is not entitled to to a credit or reduction in damages because the injured party was more succeptable to injury.
Clients with pre-existing injuries can still recover for damages that result for injuries that aggravate their pre-existing pain. Reeg v. Hodgson, 1 Ohio App.2d 272, 278 (4th Dist. 1964). "Aggravation or acceleration of a pre-existing physical condition in personal injury cases is so well recognized as a ground for recovery that the citation of authorities is not necessary." Id. Recovery of damages for aggravation of injuries is permissble because if not for the injury-causing incident, the client would not be experiencing increased pain.
Armed with medical records, expert medical testimony and a well versed client, an attorney can successfully move beyond the 'pre-existing condition' trap.
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