Mark Buterbaugh
In Pennsylvania, if you have a pre-existing condition and get hurt at work, you may still be eligible for workers compensation benefits. Often, injured workers are advised by their employer that they can’t file for workers compensation benefits because they had a pre-existing condition. That is wrong. Period.
It is long standing law in Pennsylvania that an aggravation or exacerbation of a pre-existing condition can be a compensable work injury.
An aggravation of a pre-existing degenerative condition constitutes a compensable work injury. SKF USA, Inc. v. Workers’ Compensation Appeal Board (Smalls), 728 A.2d 385, 387 (Pa. Cmwlth. 1999).To establish a compensable aggravation“the medical evidence [must] establish that the injury materially contributed to the disability rather than the disability resulted from the natural progress [ion] of a pre-existing condition.” Miller v. Workmen’s Compensation Appeal Board (Pocono Hospital) , 539 A.2d 18, 20-21 (Pa. Cmwlth. 1988) (citing Halaski v. Hilton Hotel, 409 A.2d 367 (Pa. 1979)). Whether an incident has materially contributed to the disabling injury “is a question of fact to be determined by the WCJ.” SKF, 728A.2d at 388.
As you can see, it is well established law. The litigation involving pre-existing conditions is quite complex. It goes beyond just proving aggravation, but also that the aggravation is ongoing. It will take significant lay and medical testimony. It is critical to have a proven and experienced workers compensation attorney that understands medical evidence. At Mooney & Associates we have the experience and the results to prove it.
Usually when we are talking about pre-existing conditions, we frequently see conditions involving the back, knee, and shoulder. Let me use some of my cases as examples.
Pre-existing Knee Arthritis
I had a case of an injured worker that involved pre-existing arthritis in her knee. She is a senior citizen. She worked full-time for a national retailer. Four years prior to the work injury, she had treated for knee arthritis pain, including a few injections, but had not treated in the three preceding years. After she slipped and fell at work, she could not put weight on her knee and was unable to work. She underwent conservative treatment regiments, such as inflammatory and pain medications, work restrictions, bracing, physical therapy, and additional injections, but all failed to relieve her symptoms. Her doctor recommended a total knee replacement, due to the extensive arthritis in her knee. We were unable to settle the case because of the recommendation for and need for a total knee replacement. We went to decision and won on the merits. The WCJ granted the claim petition and had to pay my client’s wages while out of work as well as the expenses of a total knee replacement. She is still currently being paid wage loss benefits.
Pre-existing shoulder
Have a client that worked for the same employer for over 25 years. He slipped and fell at work and injured his right shoulder. After an MRI was completed, the insurance carrier denied benefits due to pre-existing right shoulder rotator cuff tears. The tears were pre-existing, we conceded that. It was clear by looking at the MRI that the tears were chronic, not acute. Additionally, during medical testimony, the treating orthopedic surgeon also testified that the tears were degenerative and pre-existing. However, the doctor also testified that his chronic tears were not symptomatic, and but for the fall, he would have remained non-symptomatic. Prior to the fall, he never experienced any shoulder pain. This is not all that uncommon. This gentleman never treated for shoulder pain. Never even missed a day of work. He had no idea or no way of knowing he had pre-existing tears. We eventually won the litigation, the claim petition was granted, and the insurance carrier had to pay wage loss benefits, and still are today, and pay for a total shoulder replacement. A simple rotator cuff repair could not be performed because of the extensiveness of the tears.
Pre-existing Back
I had a client that had a prior work injury from a different employer that included a low back fusion surgery in 2007. He recovered from that surgery and had not sought low back treatment since 2008 except for an updated MRI in 2011. My client injured his low back with a new employer in 2014, while working at a road construction site. Given his prior low back surgery, the insurance carrier denied his claim. I positioned his claim well through an extensive medical record review, treating back surgeon’s deposition testimony, and our clients’ testimony on his recovery from his prior injury. Right after briefs were drafted, but before the decision was issued, we were able to secure a nice lump sum settlement for our client, plus payment and reimbursement of all outstanding medical bills related to his new low back injury.
These are just a few of many examples of cases in which I have either gone to decision or settled claims involving pre-existing conditions. They are complex. They involve critical medical testimony. That’s why it is vital that if you are injured at work and believe you aggravated a pre-existing condition, that you seek an experienced and proven workers compensation attorney to handle your claim. Don’t let your employer tell you that you can’t get benefits because you had a prior condition. We have been in the trenches, have won these types of cases, and settled many others like these. We certainly aren’t hesitant to go to decision either.
Call Mooney & Associates today for a FREE consultation regarding your work injury. We have 15 offices throughout Central Pennsylvania. I will meet with you at the offices nearest to you. Call today at 717-200-HELP or 1-877-632-4656. You can also email me at mab@mooney4law.com.
