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Recent Victory in Pre-Existing Condition Trial

Do people with pre-existing physical injuries or ailments have the right to bring claims if they are the victim of an accident? This is a question with an obvious answer ("Yes") but which often creates issues upon which the insurance industry loves to bounce. All too often hard working people who have been injured on the job, in a prior accident, or who have developed back, shoulder, or neck problems are denied their right to recovery by insurance defendants. It requires a clear understanding of Wisconsin law and the ability to articulate the distinction between these pre-existing conditions and the aggravation or exacerbation of those injuries by a subsequent accident.

For example, medical studies have shown that a high percentage of Americans over the age of 40 have some degree of arthritis in their spine, whether it be cervical (neck), thoracic (mid-back), or lumbar (low-back). This often referred to degenerative spine disease and may even co-exist with degenerative disk disease (a breakdown of the cushioning material between the boney vertebrae of the spine). The point is that often this condition is first revealed on autopsy, i.e., after death. This is because in most people mild to moderate arthritic changes in their spine is asymptomatic (without pain).

However, when a person is injured in an automobile accident or a bad fall, the insurance industry seizes upon these arthritic conditions (usually revealed on x-ray or MRI studies) and claims that the pain the injured party claims is the result of these pre-existing arthritic findings and not any trauma caused by their insured. Wisconsin law, as expressed in rulings by our supreme court and incorporated in instructions read to a jury by the trial judge, clearly provides for compensation for accident victims with these pre-existing conditions. Juries are told that as long as they determine that the accident which is the subject of the lawsuit is "a cause;" a substantial factor in bringing about the medical condition of the plaintiff, the accident victim is entitled to compensation for his or her injuries. This means that the accident does not have to be the sole cause of a plaintiff's current medical condition, but rather "a cause;" i.e., one substantial factor.

Domnitz & Skemp recently represented a 47 year old man who operated a lawn maintenance business in the Milwaukee area. He had been the victim of an automobile accident in 1999 after which his doctors discovered he had degenerative changes in his spine. Although these changes clearly developed over years before the accident, they had not been discovered before the accident because they were asymptomatic. After the trauma of the motor vehicle accident, however, he began to experience back and neck pain. After treatment with doctors and physical therapists this client was assigned a minimal permanent disability rating and his claim was resolved short of trial.

Unfortunately, in December 2004 this same man was again struck from behind by a careless driver. Now his back and neck were even worse than before. The insurance company maintained that his problems were not attributable to the 2004 accident, but rather to the effects of his degenerative spine condition and/or the 1999 accident. Although the bills for related treatment from his 2004 accident totaled $20,000 - and his doctor clearly explained the worsening of his condition - the insurance company would offer little more than the medical bills to settle the case. The case proceeded to trial and we explained to the jury the provisions of Wisconsin law that provide for compensation for the aggravation of a pre-existing condition. The defense argued that $14,000 was adequate compensation since the treatment and the current medical condition did not relate to the 2004 accident. It took the jury less than two hours to return a verdict for $70,000.

Experience in the courtroom coupled with a clear understanding of the applicable Wisconsin law allowed this hard working man to obtain fair compensation as provided for by our civil justice system. Don't be fooled by insurance adjusters or inexperienced attorneys who want to pass your pain and suffering off onto pre-existing conditions or even prior accidents; if the medical facts indicate that your condition has been worsened by an accident, find an experienced lawyer who knows this area of the law - it is your only protection against an insurance company's attempt to deny you fair treatment under the law.

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