Injury Claims & Pre-existing Conditions

Was a police report filed?
  • Injury Claims from Car & Traffic Accidents


    Unfortunately, injuries arise from car accidents all too frequently. When a traffic accident causes an injury, its best to consult with a car accident attorney right away so your situation can be evaluated and you can learn your options and also learn what to avoid so that your situation doesn't get worse. One circumstance that can quickly complicate an injury claim is a "pre-existing condition."


    Pre-existing Condition Definition & Types

    In the context of an injury claim, a pre-existing condition is a medical condition, whether known or unknown, that the injury victim had before the motor vehicle accident ("MVA"). Most attorneys devalue all client matters involving any pre-existing condition. This may be because it appears almost all insurance companies devalue them. However, a pre-existing condition does not present a clear, unambiguous, black and white situation. Rather, the complexity added to an injury claim from a pre-existing condition requires an understanding of the condition, its progression, and what change resulted from the trauma of the MVA, if any. Moreover, many types of pre-existing condition make that person more susceptible to injury from a crash and can actually make their injury claim easier to present. Consider these three examples all with a person who has a labrum tear in their shoulder that is symptomatic (causing problems) before the MVA. In example one, after the MVA the patient has ongoing shoulder pain that does not improve with physical therapy, medication, or injections and this patient does not have an identifiable new injury on their post-incident MRI. This course is typical for a shoulder labrum tear and, while the MVA didn't help, the post-accident symptomology is indistinguishable from the prognosis of a shoulder labrum tear without a traumatic incident like an MVA. As such, this would be a difficult injury claim and the pre-existing condition would likely devalue the claim significantly. In our second example, the patient's post-incident MRI shows a rotator cuff tear and the ER records indicate the shoulder was dislocated when the patient arrived by ambulance. Not an unusual outcome for a driver that sees the accident coming, grips the steering wheel tightly, and then the airbag is deployed in the collision. Unlike our first example, the pre-existing condition is readily distinguishable from the traumatic injury sustained by that same shoulder in the MVA. As a result, this pre-existing condition would merely be a distraction from the new rotator cuff injury objectively seen on the patient's MRI and that injury would be consistent with a dislocation. But there are an array of situations involving pre-existing conditions that are between these two examples. In our third example, the patient's pre-existing condition continues to be a labrum tear but after the MVA, the patient develops subacromial impingement syndrome and cannot lift one arm up past shoulder height when trying to make a touchdown signal like a referee. Subacromial impingement is frequently associated with inflammation, tendinitis and bursitis, but from the patient perceptive they had "shoulder pain" before the MVA and have more of it after. Attention should be made, in example three, to distinguishing the root of the subacromial impingement from any swelling or irritation of the torn labrum. Since "shoulder pain" is also frequently used to describe labrum tear symptoms distinctions need to be drawn so that new injury can be separated from the pre-existing condition even though the patient may have a difficult time articulating the distinctions or the healthcare provider may not care to ferret them out in the clinical setting. Therefore, these distinctions are best made by treating physicians who are also expert forensic witnesses.


    Common Pre-existing Conditions in the Spine

    The spine is separated into four regions: cervical (neck), thoracic (mid-back), lumbar (low back above the waist) and sacrum (pelvis down to coccyx). Each region can have pre-existing conditions. The most commonly seen pre-existing condition of the spine is some form of degenerative disc disease ("DDD"). DDD ranges from loss of disc height (mild) to fusing spondylophytes (severe). However, DDD is just a name for the degradation of the spine which can happen naturally as a part of the aging process and can progress without the individual having any symptoms at all. In other words, a person with a moderate or severe DDD that can be seen on their MRI might not have any complaints whatsoever. Moreover, the use of the term "disease" in DDD can be somewhat misleading because most people think of a disease as a progressive illness that, without treatment, can be life-threatening. Such is not the case with DDD. While most peoples' spines deteriorate as they age, DDD is different from patient to patient and the progression of the degeneration, if any, is unpredictable. A commonly held belief in the forensic field is that a spine with DDD is more susceptible to injury from trauma than a spine without DDD. As a result, the defense frequently will take the position that a victim's spinal complaints are from DDD and not from an acute trauma whereas claimant-doctors will focus more on the change in symptomology after the MVA and blame the MVA for those changes as well as the need for medical care to address those changes. Some spine injuries from car crashes are mechanically related to DDD. For example, a person can have DDD with disc desiccation, with or without symptoms, and have an injury to the facets on the posterior spine that are mechanically compressed by the loss of disc height on the anterior side from the force caused by the collision. Since the patient just knows they have 'low back pain,' clinically distinguishing the posterior facet injury from the anterior pre-existing condition is needed in order to present a claim for that injury.


    Common Pre-existing Conditions in Shoulders

    Rotator cuff tears are common in people with or without trauma. Therefore, the distinguishing trait is not just whether or not the patient has an MRI that shows a tear but more importantly the change in the car crash victim's symptomology. Since most doctors in the clinical setting are focused on making a diagnosis and then attempting to cure the problem, medical records rarely document the tear's etiology. Having a qualified medical doctor familiar with the court system's forensic requirements is an important team member to incorporate into the car crash victim's care and treatment. Otherwise, important evidence may not be preserved by a clinical doctor during treatment or surgery that is not the focus of that doctor's courses of care. For example, rotator cuff tears are frequently repaired surgically and during the surgery a doctor can take pictures of the frayed and torn tissues in order to distinguish newly torn tissues from older frayed ones (however, due to the fibrous nature of these tissue the distinction is not always obvious).


    Common Pre-existing Conditions in Knees

    In the knee, the end of the femur bone sits on a plateau atop the tibia bone behind the kneecap. The meniscus is a cartilage pad that separates these bones. A variety of things, including but not limited to trauma, can tear the meniscus and cause the patient to feel "catching" within the knee or to feel like their knee gives out. Similar to rotator cuff tears, the knee's MCL and ACL ligaments can be frayed or weakened from wear and tear and, as a result, be susceptible to tearing when a leg gets twisted in a car crash. Lastly, we see a good number of LCL (lateral collateral ligament) injuries from side impact car crashes however the incidence of pre-existing conditions to the LCL are nominal.


    Neurological Pre-existing Conditions

    The most common neurological pre-existing condition that we see is carpal tunnel syndrome ("CTS"). The median nerve runs under the transverse carpal ligament and inside of a sheath surrounded by the carpal bones of the wrist. The symptoms related to CTS result from compression of that nerve and that compression can come from different things such as swelling or thickening of the transverse carpal ligament itself, swelling of the nerve, or inflammation within the carpal tunnel causing hydrostatic pressure on the nerve. Hyperextension of the wrist or blunt force trauma to it can cause injury to the nerve or the ligament as well as cause inflammation that funnels into the carpal tunnel. Therefore, someone who had a history of CTS that responded adequately to medications or steroid shots may need to have surgery for relief after an MVA. Inevitably, the defense will blame the surgery on the progression of the underlying CTS and ignore that the medication that worked before the MVA no longer works after because of the additional swelling or injury from the MVA.


    Pregnancy

    The ultimate pre-existing condition is pregnancy. Although not commonly thought of in those terms, pregnancy is definitely a medical condition and it certain can impact a claim when a pregnant woman gets injured in a car crash. But, in the circumstance of a pregnancy, the script gets flipped. Instead of blaming the victim's injury complaints on the pre-existing condition instead of the trauma from an MVA, many insurers will simply try to ignore the pregnancy and its impact on the injured woman. The number one treatment by medical doctors after an injury is medication such as pain relievers or NSAIDS. Both are typically unavailable to a woman who is pregnant. Next in line is physical therapy or, sometimes, chiropractic care. Again, the full panoply of care options for these treatment modalities are not available to an expecting mother. Since the whole objective of treatment after an injury is to aide and accelerate healing, the presentation of an injury claim for a woman who is pregnant at the time of the MVA is her ongoing symptoms from her untreatable injury and not the ongoing care and cost of that care that is commonly the focus in injury claim handling.


    Conclusion

    There are many more pre-existing conditions that can impact injury claims than those few outlined above. When a client presents to the office with an injury claim complicated by a pre-existing condition, a three-prong response is required. First, the symptoms from the trauma should be specified and separated from those related to the pre-existing condition by both the victim and the victim's healthcare providers. Second, obtaining objective evidence of the traumatic injury will likely be important in order to prove what was caused by the MVA and distinguish it from what was there before. Third, I feel that the pre-existing condition must be identified in the injury claim as early as possible. I feel this way for two reasons. First, if the insurer defending the claim has the impression that the pre-existing condition is being withheld or hidden, then commonly the focus becomes the pre-existing condition instead of the injuries caused by the MVA. Second, the pre-existing condition can often be something that make the client more susceptible to injury from a crash which can be helpful when explaining how the MVA cause the patient's symptoms and pain complaints.

    Steve Gnau

    co-founder of Traffic Accident Law Center

    Gnau & Tamez Law Group, LLP

    Offices in San Diego, Vista, Chula Vista, and Murrieta, California


    Disclaimer:

    Choosing an attorney is an important decision and requires in depth consideration. It should not be based on advertising, internet posts, or other commercialized publications. This post was not meant to be legal advice and should not be construed as legal advice. To form an attorney-client relationship, a client must always sign a retainer agreement with our firm. Simply wanting to hire us and contacting us will not form an attorney-client relationship. Only licensed to practice law in California and can only represent claims brought in California therefore this post only describes factors related to California law and may have no value in any other jurisdiction. This post was written March 2019 and may not be accurate thereafter due to changes in law and insurance procedures. Contact an attorney to validate content before taking any action or inaction thereon. Injury claims are limited by the applicable California Statute of Limitation which for car accidents is within two years of the date of the collision however if the collision involves a governmental entity then an applicable government claims statute likely requires the claim to be made within six months of the collision and before any lawsuit can be filed. After the expiration of the Statute of Limitations a claim is "time barred" meaning that the victim cannot obtain a recovery. As to case specific content or past recoveries obtained for past clients, this post is not an indication that the same or similar result can be obtain in future matters or obtainable in other cases. Outcomes of past client matters is to provide context from past experience and not to provide any perception of any type of guarantee.


    About the Author:

    Steve

    Gnau is an attorney in California that represents clients throughout

    the state. After obtaining his license to practice law in California in

    1995, he established his own law practice which has grown to include

    multiple locations throughout Southern California. Steve Gnau has

    received multiple awards and accolades, including a Trial Attorney Award

    from the Consumer Attorneys of San Diego in 2011. In addition to

    representing thousands of injury victims since the inception of his

    practice, Steve has also been retained to defend claims for the

    insurance industry and to audit claims which has provided insight into a

    variety of claim handling procedures.




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