Hurt Again: Pre-Existing Conditions and Your Claim

The insurer’s favorite argument

If you had back pain before the crash, the insurance company will find it. Its first argument will be that your pain now is the same pain you had before, and the crash had nothing to do with it.

That argument is common, and it is often wrong. A pre-existing condition does not end a claim. It changes what the claim is about.

The rule: you can recover for what the crash made worse

In California, a person who causes an injury is responsible for making a pre-existing condition worse. You cannot recover for the condition you already had. You can recover for the aggravation: the extra pain, the new limits, the treatment you would not have needed if the crash had not happened (CACI No. 3927).

California also does not let the defendant argue that a healthier person would not have been hurt as badly. If you were more vulnerable because of an old injury, your age or your health, the defendant is responsible for all of the harm the crash actually caused you (CACI No. 3928). Lawyers sometimes call this taking the plaintiff as you find them.

What proves the difference

The question becomes before and after. What could you do before the crash, and what can you do now?

• Your earlier medical records. They can help you. Records that show your back was stable, or that you had not needed treatment in a year, show the change.
• Imaging. An MRI after the crash compared with one from before can show something new: a new herniation, a tear, a fracture.
• Your doctor’s opinion. A treating doctor who says the crash aggravated the condition, and explains how, is the center of the claim.
• The people who know you. A spouse, a coworker or a friend who can describe what you did before and what you cannot do now.

Be honest about your history

Tell your doctors and your lawyer about every earlier injury and condition, even ones you think do not matter. The other side will get your records. A history you disclosed is something to explain. A history you hid becomes a reason to doubt everything else you say.

Read why gaps in treatment hurt a claim and what happens at a defense medical exam, where pre-existing conditions are usually the first subject.

Talk to Boyd

If the insurance company is blaming your pain on an old injury, call. The consultation is free, and Boyd takes the call himself: (714) 656-2400.