I had back surgery years ago, but now my back pain has worsened since this accident, will the insurance company still pay for it?
Maine law requires that someone who has suffered a worsening of a pre-existing condition due to the negligence (fault) of another be compensated by the negligent party. That said, proving that a pre-existing condition has worsened due to an accident can be very challenging. A significant percentage of our clients come to us with injuries that were superimposed on top of a pre-existing injury. Over the years, we have handled successfully well over a thousand cases like this, seeking in each case to determine the extent to which the pre-existing health problem, e.g., back pain, was worsened by the accident. There are several reasons for our success in these types of cases. First, we seek input from expert medical consultants, preferably a treating specialist. If a treating specialist is unavailable or, for whatever reason, unwilling to provide the information a opinions we need, we will then bring in independent medical consultants.
Second, we gather information from people who knew our client before the accident who can attest to how active our client was, whether our client appeared to be limited in any way, and whether our client complained about pain problems. While family members are helpful, we generally prefer someone who is more neutral and unbiased like a co-worker or our client's supervisor/employer.
Third, we attempt to establish that our client was relatively pain free by obtaining evidence of the client's pre-accident level of activity. If our client went to the gym frequently, for example, we may gather evidence of our client's visits from the health club.
Finally, in certain cases we may obtain copies of our client's employment records to see if there is evidence in those records to support our position that our client was not in pain prior to the accident. A fairly clean attendance record is one way to show that our client was in relatively good health prior to the accident. Employment-related physicals can also be very helpful in showing our client was physically able.
A while back we had a case where the insurance company took a fairly hard line position that our client's shoulder pain was not due to the accident but was instead a nagging problem that stemmed from an old football injury. While it was true that our client did have some shoulder pain and stiffness at the time of the accident, it was equally true that the accident greatly worsened the pain and significantly limited our client's mobility. In order to change the insurance company's view of the case, we were able to obtain records from our client's health club that demonstrated that he frequently exercised (the health club recorded each time he checked into the facility). We were also able to obtain a statement from one of the employees of the health club who recalled that our client frequently used an elliptical machine which required him to repetitively move his arms (and shoulders) back and forth. This evidence persuaded the insurance company to reverse its position and reasonably compensate our client for his worsened shoulder injury (as well his lost income, emotional distress, medical bills, and other pain and suffering).