Sometimes people may suffer from an accident that aggravates a pre-existing (“prior”) injury. Florida law allows victims in these situations to recover damages for aggravation of pre-existing injuries. However, insurance claims adjusters will likely argue that your prior injury should result in a smaller settlement or no settlement at all.
Do I Have to Disclose My Prior Injury?
The first question you may have is whether you have to disclose your prior injury. The short answer is “yes.” In fact, in the recently issued opinion of Diaz v. Home Depot USA, Inc., et al.,[1] the Third District Court of Appeals (which presides over Miami-Dade and Monroe Counties) dismissed the Plaintiff’s case where they found she provided false testimony stating she had not been in a prior accident when she previously had gone to the hospital and received prior medical care for the same injury she was now claiming in her current lawsuit. This case highlights the necessity of providing truthful testimony regarding the exact nature of the aggravation of your prior injury to increase your chances of prevailing at trial.
What Arguments May The Other Side Try to Use?
There are several possible arguments you should be cautious of before moving forward with a claim for aggravation of a prior injury. Claim adjusters will likely try to use these arguments as alternatives to argue that your potential damages should equal a lesser amount.
- You’ve Sought Recent or Frequent Treatment for the Injury: Your claim will be substantially weakened if you sought recent treatment prior to the accident for the exact same pain you are claiming now in your personal injury claim.
- You had an MRI or CT Scan Recently for the Injury: The other side will likely look to any recent scans, x-rays, or other records that conclusively show what your injury looked like prior to the accident. If you have had a recent scan within the past year that shows you previously had an injury and now you are claiming damages for an injury that looks the same as before the accident, you will have a difficult time supporting your claim.
- Your Injury is Degenerative: An insurance claim adjuster will likely argue you should not be able to recover damages because your prior injury was degenerative. This argument is particularly common when the accident victim is older and subject to degenerative conditions.
- Your Claim is Time Barred: In Florida, an accident victim has four (4) years to file a claim for recovery of damages for an injury incurred as a result of the accident. This is called a “statute of limitations.” If you try to file a claim for an aggravated injury after this statute of limitations has expired, a court may determine you are barred from proceeding on your claim.
What Documents and Testimony Will Support My Claim?
While previous scans may bring out weaknesses in your claim, they also may be its biggest strength. The main source of written support for a claim for aggravation lies in your medical records. If your medical records show your prior injury was asymptomatic and you were having no problems prior to the accident, a negative change in that status would help support your claim for aggravation. Similarly, if you saw a doctor prior to the accident regarding your injury, your doctor’s testimony could help support your claim that your injury was aggravated.
Let Us Assist You with Your Case
If you are a victim of a West Palm Beach, Stuart, or Boca Raton accident and you have a prior injury, you should hire an experienced local personal injury lawyer to help evaluate your claim and discuss the laws that are applicable to your case. The skilled personal injury lawyers at Lesser, Lesser, Landy & Smith, PLLC will help you understand your rights to compensation and other damages.
Resource:
leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.81.html
[1] Eileen DIAZ, Appellant, v. HOME DEPOT USA, INC., etc., et al., Appellees, Case No. 3D15–520, Decided: July 13, 2016
