An accident may arise in a number of situations. The most common instances in Queensland, especially in Brisbane and the Gold Coast, usually happen from:
-Motor Vehicle Accidents
-Public Liability Accidents (slip & fall, defective products, etc.)
-Physical Assaults (fights in a bar, being attacked by bouncers, etc.)
An important issue that arises from some of these circumstances is when a claimant has previous injuries or medical conditions that existed prior to the accident that caused their current injury.
This is a common concern that we receive from clients who are reluctant to disclose all of their medical information in fear that insurance companies will take their medical records and manipulate that information against them.
Most insurance defence strategies may convince you to believe that if you have a pre-existing injury then your claim will not be successful.
But is that the whole truth? Is having a pre-existing injury one of the many ways on how to lose a personal injury lawsuit?
The Short Answer
The short answer to these enquiries is that often a pre-existing injury or pre-existing medical condition will indeed add additional complexity to a claim. However, this does not automatically mean that your personal injury claim will fail in settlement discussions or court. A skilled personal injury solicitor who is also an accredited specialist in personal injury can apply the law and facts to mitigate the potential effects from an insurance company’s arguments in this regard. Claimants may be reluctant to pursue this option because they are intimidated by the insurance company.
But that is exactly what an insurance company may want you to be.
An insurance company will be very likely to argue that a claimant’s ongoing injuries were not caused by the accident or any negligent actions, but rather, were symptoms associated with a claimant’s pre-existing injury or pre-existing medical condition.
What Might the Insurance Company Do?
Insurance adjusters are trained to deal with these situations and mitigate the amount of money their company would pay to a claimant.
After reviewing medical records, they may either bring those issues up right away or wait until settlement conference to bring up that argument.
This can be a difficult position for claimants. The negotiation strategies employed by insurance staff are catered to the claimant’s situation and it is difficult to accurately determine what position the insurance company will take or what they are willing to settle for on a claim.
Often, claimants may be unfamiliar with the law or case studies that reflect an accurate resolution in their circumstances. Without such information, it may be difficult for a claimant to properly protect their legal rights on their own.
How Do Personal Injury Lawyers Argue With an Insurance Company?
A pre-existing injury or pre-existing medical condition gives rise to an issue of causation. The claimant’s personal injury lawyer must prove that the injuries were caused by the accident itself and were not in fact related to the claimant’s pre-existing injury or symptoms. As a matter of fact, the lawyer may even argue that a claimant’s pre-existing condition was worsened and aggravated by the accident.
Insurance companies may generalize the location of the injury. For example, they may refer to the claimant’s injury as simply a back injury even though the pre-existing injury may be located in the lumber spine and the accident injury occurred in the thoracic spine. It is important to refer to medical records to confirm specific details about the injury locations.
A good lawyer will analyse the medical documents provided by treating medical professionals and facilities to argue that the body parts affected by the pre-existing injuries are different than the areas affected by the new injuries.
To substantiate these arguments, a medical expert may also be appointed to assess and report on the medical issues associated with a claimant’s injuries to justify his/her complaints. Medical evidence is a very critical aspect of successfully arguing against an insurance company and should not be taken for granted, especially when dealing with a pre-existing injury or medical condition.
What is the Takeaway of this Article?
If someone is the victim of an accident and suffers injuries and loss, the existence of a pre-existing injury or pre-existing medical condition can certainly add complexity to the claim.
However, this does not automatically mean that your claim is defeated. In the eyes of an untrained person, a pre-existing injury or disease may certainly seem like the end of the road for legal rights. This is why it is so important to speak to an accredited specialist in personal injury law.
To fully appreciate the complexity that your injuries may bring to your claim, it is highly recommended that you speak to a personal injury lawyer for a free consultation.
East Coast Injury Lawyers
East Coast Injury Lawyers can help you understand your legal rights to compensation. Contact us by calling 1300 720 544 or filling our case review form.