• David Omer

Pre-Existing Conditions: What They Actually Are, and What Insurance Adjusters Think They Are

Today I decided that I'm dressing up as an insurance adjuster for Halloween. I think it's a genius idea because I can dress normally and be completely terrifying at the same time. Adjusters are pretty spooky because they can pull all kinds of tricks to try and minimize the damages in your personal injury claim. If you've pursued a claim before, you probably know what I'm talking about.

One of the more convoluted tricks that adjusters keep up their proverbial sleeves is the "pre-existing condition" argument. A pre-existing condition is any physical malady that you've suffered in the past, which could conceivably explain the pain or injury for which you're seeking compensation in your claim. These pre-existing conditions can be harmful or even fatal to a personal injury claim.

Look at it this way; if you strained your neck in a car accident, the law only allows you to seek compensation for that particular injury. If you were in another car accident ten years ago where you also strained your neck, that opens the door for the adjuster to argue that you're trying to recover for the original injury, not the new one. And if that was actually the case, the adjuster would be right. The problem is that adjusters love to advance the pre-existing condition argument regardless of whether or not it actually applies to any particular case.

Insurance adjusters are a lot like customer service representatives; they might be super friendly and super helpful, but at the end of the day they exist to protect their employer's interests, not yours. Since the adjuster's job is to protect the carrier's interests, you can bet they'll use every trick in the book to try and do just that. If you haven't already, make sure to read my article on over-disclosing your medical history, as that article expounds on the same point and drives home the importance of protecting your medical records.

If the pre-existing condition argument is the trick, the eggshell skull doctrine is the treat. The eggshell skull doctrine asserts that a tortfeasor has to take his victim as he finds him. In other words, if you (i) are afflicted by a peculiar or particular vulnerability, and (ii) you're injured by the negligence of another, then the at-fault party is liable for the full extent of your injuries. This is true even if the extent of your injuries is far in excess of what would be foreseeable under the circumstances. The classic example looks something like this:

Olaf suffers from Osteogensis Imperfecta, or "Brittle Bone Syndrome." He's sitting in the drive-thru line at McDonald's when Alf eases his foot off the brake and hits Olaf's car going about one mile per hour. The impact is minimal, but due to Olaf's affliction, the impact causes a fractured vertebra, necessitating spinal surgery and a veritable mountain of medical expenses. Under the eggshell skull doctrine, Alf is liable for the entire amount, even though such a small impact would have resulted in little to no injury for 99.9 percent of the population.

The difference between the pre-existing condition and eggshell skull doctrines can get blurry; many injuries are susceptible to the application of either or both, and making an argument for eggshell skull in favor of pre-existing condition can require nuanced, articulate, and persistent argument. If there's any way to argue that a recovery on a compensable injury could be precluded by a pre-existing condition, you can bet that the average adjuster will waste no time in taking full advantage of that argument.

The most common example that I see involves "degenerative disc disease." It appears in nearly every adult's medical record at some point, and adjusters love to point at it as a pre-existing condition giving rise to a denial or a woefully low counter-offer. I find myself arguing against this very assertion on a regular basis.

The point I want to make is that you have to be aware of any opportunity your adjuster could take. You need to know what your injuries are and whether each is a pre-existing condition or a particular vulnerability, and you need to be aware of any arguments you can make to ensure that you protect your own recovery.

I know that this topic can get confusing. If you have questions, make sure and talk to an experienced personal injury attorney in your area. Good luck!

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