Any person who is over the age of 35 years of age and suffers a serious work injury will likely find some type of reference in his or her medical records regarding a degeneration of a part of the body that is being examined. For example, degenerative disc disease—which may sound terrifying—is actually a normal part of the aging process. Nonetheless, insurers and claims administrators often use these terms in a claimant’s medical records that appears prior to an injury as a basis to deny the claim or reduce medical expenses associated with the incident.
Nevada’s Burden of Proof
Insurance companies aggressively pursue evidence of pre-existing conditions because the law does not require the at-fault party to pay for injuries they did not cause (like injuries you already had). Under Nevada law, although a plaintiff must prove his or her own case, the burden of proving that an accident which aggravated, accelerated, or precipitated a pre-existing condition is a substantial contributing cause of the resulting injury shifts to the insurance company. In other words, if someone has been working without complaints or has not needed medical treatment for a condition until after the incident occurred, the insurer bears the burden of establishing that the injury was pre-existing. Despite prevailing law in Nevada, insurance companies typically operate under the presumption that the claimant must prove the condition is not pre-existing.
Pre-Existing Conditions: How They Help and Hurt Your Case
A pre-existing condition may make a personal injury claim more valuable. This is because it is no secret that aggravating an existing injury can often be more painful and harder to treat than the underlying condition. And the worse off you are, the more your case is worth (so here's to hoping your case is not worth very much!). If a treating physician is willing to state on the record that, while there was a pre-existing condition, all of the complications and symptoms including new treatment are due to the most recent injury, the victim may be able to successfully pursue monetary compensation.
On the other hand, a pre-existing condition can hurt your case because it can raise suspicion regarding your medical treatment. An insurance company may argue that you used the accident or injury to aggressively treat the pre-existing condition in the hopes of establishing exacerbation or aggravation of the underlying condition. If the insurance company does not accept your medical treatment as reasonable, the claim could be difficult to settle for a fair amount.
However, in our experience, juries understand better than insurance adjusters the role of pre-existin injuries, and so if we can't convince an insurance adjuster that your injuries are worth more than the pittance they're offering, juries—the conscience of our community—are often much more reasonable.
If you or someone you know has been hurt and has a pre-existing condition, your best action is to be referred to new healthcare providers so that they may treat your new medical issues. The new physician(s) should then put in writing which treatment may be related to the pre-existing condition and which was related to the most recent injury. For more information on this issue, or if you have any other questions regarding a Nevada personal injury contact the skilled lawyers at Parry & Pfau today.
(image courtesy of Hush Naidoo)