Good afternoon, everybody. This is Rex Zachofsky, your workers compensation attorney here in New York. And I'm coming to you today with a...I don't want to say it's a hot topic, but I get a lot of questions about this one, and that's preexisting conditions in workers compensation.
People ask me these questions every single day, and I wanted to answer some of the questions that I've been getting in and help you guys out! If at any point in time you have any questions today, please feel free to to post your comments and questions, and I will do everything I can to answer your questions.
Otherwise, if you have any questions a pop up down the road, you can always give me a call. My telephone number 212-406-8989. And let's get started here.
Any time you have the same or similar injury, disability, or illness to the same body part that's considered a preexisting condition. Anytime an injury is related to a prior injury, preexisting conditions, insurance companies bring them up all the time for good reason.
So anytime there's a similar injury or disability that can be considered a preexisting condition, you can hurt your arm, your leg, your back multiple times. If you're hurt your back five years ago and then you hurt it again last month, they're going to bring up their preexisting condition.
A preexisting condition can also be something like heart disease preceding or predating a heart attack. We do deal with work related heart attacks on occasion. And if the person had heart disease before they had their heart attack, that will be brought up.
Any prior injury or disability, whether it was work related or not, to the same or similar body parts, so that's what preexisting conditions are. So the time you fill up your bike when you were 15 years old and you broke your leg, the car accident from ten years ago, or the workers comp case from a year ago, those are all preexisting conditions.
The quick answer to that is no. Workers compensation doesn't cover the treatment for the preexisting condition unless it was work related itself. So if the initial injury, if you hurt your back at work five years ago and then you hurt your back again 5 minutes ago, your preexisting condition will not be covered.
It's only covered if the preexisting problem or injury was work related. If it was not, workers compensation will provide benefits that are attributable to the worsening or the re injuring of the body part. So if you had a bad back from a football injury from high school like Al Bundy and then you hurt your back at work, well, they're only going to pay for the worse thing in your condition that was work related and the benefits that come with that.
One thing that we need to discuss when your underlying or your preexisting condition was work related, we need to distinguish between an exacerbation and a new accident. And people come to my office and they ask me these questions all the time and they think, well, I exacerbated my injury or I had a new accident. They're reaching those conclusions without actually getting into the facts. And it's very important that you get into the facts of each particular circumstance.
An exacerbation is a worsening of a preexisting condition, and it's generally for no reason other than the fact that you have that preexisting condition. You hurt your back five years ago and this morning you couldn't get out of bed because your back was killing you. You didn't do anything to it. It just got worse on its own because you have a bad back. That's an exacerbation.
If your prior preexisting condition exacerbates and it was work related, you're going to pursue your benefits under that claim, that old claim. So that's that five year old back case and it is bothering you today, you don't file a new accident, you file you pursue it under your old claim.
But if you have a five year old back injury and you went to work yesterday and you picked up a 50 pound box and boom, your back went out, well, that's probably considered a new accident.
So you want to make sure you distinguish between the two and people often get confused. And before you reach your own conclusion, speak to your doctor, speak to your lawyer about it, because it's very important that you file properly.
Very simply, the insurance company is going to try to convince the judge that most or all of your current disability is related to the preexisting problem. They're going to try to dump everything on the old injury.
They're going to try...especially if your old preexisting condition is not work related! If you have the bad back from a football injury from 25 years ago, they're going to try to say that all of your disability now is due to that old injury, not because of any work accident, not because of any work condition. And you're not entitled to benefits from them because it's not work related.
They there's a lot of other reasons. There's two big reasons why they might also try to attribute your current disability to an old accident, even if it is work related. If your preexisting condition was work related, the insurance company might try to shift the burden back to that old case for two big reasons.
Number one, if that accident was a while ago, there's a very good chance that you were not earning the same amount of money then that you're earning now, You're probably earning a lot less money, which means the money they have to pay you is a lot less. Your benefits will be lower if they could dump it into that old case. So that's one big reason why they try to shift the burden to an old case.
The second reason is there's also a very, very good chance that they weren't the insurance company five, ten, 15 years ago. And if they can shift the burden to that old case when they weren't a proper insurance company, guess what? They don't have to pay you anything and the old insurance company is going to pick it up.
So that's something that we see a lot. Very important that you distinguish an exacerbation versus a new accident or injury. My general rule of thumb here, the biggest tip I can give you, if there's any question as to whether or not you had an exacerbation versus a new accident file, a new case. File a new case and we'll sort it out in court.
I'd rather you file a new case and have a judge tell you that “This is not a new case, it's an exacerbation , and the new case is closed out”, then have a judge take a case where you think it was an exacerbation and tell you, “No, this is a new accident and you miss the statute of limitations.” And guess what? You get nothing now. So that's the biggest tip I can give you in this arena.
If the preexisting condition was also work related, first thing you really need to do speak to your doctor and get his determination as to whether or not you have an exacerbation or new accident. Speak to your doctor. Good medical is very important.
If there's any question again, file a claim for a new accident and we'll work it out. I'd rather you protect yourself, have that new claim be filed and then be tossed because it's an exacerbation than have you claim an exacerbation and have it turn into a new accident. Protect yourself.
Good medical records are the best evidence you can always produce. In any case, go see a good workers compensation doctor. Give him the whole story. Give him your history. Tell him about your preexisting conditions, your prior accidents, your prior disabilities, and tell him what happened recently. And make sure it's all documented in the medical reports. Good medical is the most important thing that you can arm yourself with when you're proceeding with a workers compensation claim.
The next thing you really need to do is go see a worker's comp lawyer. Cases with preexisting conditions can get very, very complicated. Get a lawyer, get some assistance, get help and get through the process safely and get the benefits that you deserve.
That's a that's the question that we get all the time. The answer is yes and no. There's no straight answer here.
If there is a preexisting condition to the same body part, especially if that initial injury also resulted in a workers compensation claim, we're going to be dealing with something called apportionment of your overall degree of disability to the two accidents.
So if you had a recent broken leg and we came to the conclusion that you have a 30% loss of use of the leg as a result of this recent accident, a judge is going to want to know what what the apportionment is. How much of that overall disability that you have today is from the first accident and how much is from the second accident.
So it could be apportioned 50/50. It really depends on what the doctors have to say about your medical. And they're going to review your medical reports, your past medical reports, and the insurance company is going to have the opportunity to do the same thing, and they're all going to reach a conclusion on apportionment of your overall level of disability.
There is an argument to be made—and this comes up a lot of times with neck and back injuries—that despite any earlier preexisting conditions, at the time of this current accident, the newest accident, you were working, provided you're working at full duty, you were working at full duty and yes, you might hurt your back five, ten, twenty years ago, but the last couple of years you've gotten past it, and you're working your full duty, and it wasn't until this new accident and this new injury that caused you to become disabled from work.
And that's an argument that we make to try to prove that your current level of disability and your need for benefits is solely due to the newer accident.
Again, medical, medical, medical. It's going to come up. The first thing you're going to want to do always, and this is with any case, is be upfront and honest about preexisting conditions. Tell your doctors and tell the insurance company IME doctors about any prior accidents or injuries that you have, especially if they're to the same or similar body parts.
Be upfront about it. Get out in front of it. Don't hide it. Because if they catch you hiding it, it's going to look a thousand times worse than if you just tell them about it and let us deal with it.
The second thing is the medical evidence. If you're doctors know, make sure they document it. If you need to provide medical authorizations so that we can access your old records or the insurance company can access your old records, provide those documents, provide that information, it's very important.
It lets us get a clear picture of what's going on. And if we can get it ahead of time, we can get out of front of these issues. It gives us time to prepare, make our arguments, and get you the amount of benefits that you that you're truly entitled to.
Make sure you see good workers compensation doctors, not only because they're going to give you the care that you need to get better, but they know how workers compensation works. They know the forms and the documents. They know how to how to do depositions in the workers compensation arena. Very, very important.
And the biggest thing is to, well, get a lawyer. We're here to help. We're not going to charge you for consultations. And when you have a preexisting condition and an overlapping injury from a new accident, it's going to get complicated. And you want to make sure you’re properly represented and prepared moving forward.
I see we got some questions popping up here. Let's see what we got.
“I had a shoulder injury in Louisiana. I'm getting Max Weekly Indemnity, still dealing with the pain and shoulder going to physical therapy. It's good that you get your Max weekly money here, sir, and you're getting the treatment that you need.
Unfortunately, I'm not familiar with Louisiana law. I would suggest you reach out to an attorney if you have not already done so in Louisiana. I know there are a bunch of good lawyers there. I met a whole bunch of them at our convention not too long ago. Get some help. Make sure you get all the benefits that you're entitled to.
“I reached MMI (MMI for those of you who don't know is maximum medical improvement) but insurance still hasn't made an offer I’m 75%. MMI on my neck and my back. It's been two and a half years. What is my best bet in settlement?” Two and a half years and 75% is pretty significant, sir. First of all, I need to know if you're in New York State or not.
Every state is very, very different when it comes to workers compensation. If you have an attorney, I would certainly sit down with your attorney, go over the facts, your case, find out why they're not playing ball here. It could be a lot of different reasons. Certain insurance companies don't settle cases, unfortunately. Here in New York State, it's difficult to get settlements with certain insurance companies.
I don't want to put anybody down. I don't want to say anything negative. But some insurance companies simply don't enter into what we call Section 32 Settlements. Most of them do, but some of them just simply don't for reasons that's that that's up to them. So I would certainly reach out to your attorney if it is in New York State, If you're in New York City, you don't have a lawyer and you have more questions and you want to get to it, feel free to call me.
My number is on the bottom of the screen but 212-406-8989.
Again, any questions issues? We have another video coming out next week. Another hot topic these workers compensation hot topics everybody loves so much. I will see you guys there. Have a wonderful day, everybody.