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New Jersey Worker’s Compensation: Preexisting Injuries Do Not Preclude Recovery for a Work Injury

By: Attorney Barry A. Dratch

What happens if an employee suffers an injury to a part of the body that he or she had previously injured? A preexisting condition is any condition in the injured part of your body that existed prior to the accident for which you now claim damages. Perhaps the preexisting condition is caused by an old sports injury, a motor vehicle accident, a congenital birth defect, or arthritis due to the aging process.   A petitioner may believe that this claim is barred due to the pre-existing condition. An insurance carrier may even deny an injured worker’s claim based on the preexisting injury. If your claim is denied on this basis, seek an attorney, as there is a strong likelihood that you are entitled to worker’s compensation benefits. In some situations, the preexisting injury may even increase the value of your claim.

A common tenet in Worker’s compensation is that an employers take the employees as they find them, with all of the pre-existing disease and infirmity that may exist.” Verge v. County of Morris, 272 N.J. Super. 118, 125 (App. Div., 1994).   Accordingly, employees are “not disqualified under the requirement that the injury arise out of the employment where the condition is aggravated, accelerated or combined with the pre-existing disease or infirmity to produce the disability for which the compensation is sought.” Sexton v. County of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 555 (App. Div. 2009) An employee with a preexisting injury is entitled to benefits if he or she can prove that preexisting condition is aggravated or accelerated by the work accident or exposure.

An employer may argue that the disability that you currently experience isn’t based on the work accident but rather due to the underlying condition. In such a situation it is important that the injured worker provide clear medical evidence that documents and describes how the current disability is tied to the current work injury, and not a feature of the preexisting condition.

In the case Beausejour v. Chamberlin Plumbing and Heating, Inc., A-1459-12T4, the Appellate Court noted that in an aggravation case , the Petitioner must provide both proof of legal and medical causation. The Court explained that medical causation means the injury is a physical or emotional consequence of work exposure and that the disability was actually caused by the work related event. The case provides guidance on the term “aggravation”. The Judge determined that there needs to be more than just more pain, but some change in the underlying condition.   If there is an MRI both before and after the work accident, and the MRI after shows changes, then the employment activities will be found to have aggravated the prior condition.

Another situation that may arise is where an injured worker was already advised he would need surgery to that body part at some point in the future, when he suffers his work injury to the same body part.    The issue in that scenario is whether the timing of the surgery changed by the work accident. If the accident hastened the need for surgery, even if the surgery was inevitable eventually, then the employer/insurance carrier is responsible for the surgery based on the finding of “acceleration” of the preexisting condition. 

While an employee is entitled to benefits due to an aggravation of a preexisting injury to the same body part, the employer would be entitled to a credit for the previous loss of function. This is referred to as asserting an Abdullah Credit based on the case Abdullah v. SB Thomas, 190 N.J. Super. 26, 461 A.2d . 1179 (App. Div. 1983).  which states that in such a situation the employee is entitled to the entire award and the employer is entitled to a credit for the preexisting injury whether compensated or not. The burden of proof of prior loss of function rests with the employer.    The employer must be able to show a functional loss and a simple finding of degenerative conditions may not meet the burden necessary if the employee had no prior treatment and was asymptomatic.

Sometimes the carrier’s asserting an Abdullah credit will significantly increase the amount that the injured worker may recover.   This is because the rate of compensation increases as one is found to have a higher percentage of disability. For example, in 2016, an injured worker at the maximum compensation rate who has a 10% disability attributable to a work injury with no prior injury would be entitled to $13,920. While, if that same injured worker had a preexisting injury to the same body part, and was found to have a prior loss of function, and suffers a 10% increase of disability for a finding of 35% of disability with an Abdullah credit for 25%, that injured worker would be entitled to $45,540.   In both scenarios there is a 10% disability attributable to the accident, however the person with the preexisting injury receives a substantially higher recovery.

Another situation where preexisting conditions may benefit an employer is where an injured worker suffers from preexisting conditions, and then suffers the work accident. The injured worker had been able to work with his prior conditions, and then the work accident is the final straw which totally disables that worker. Although the final injury, the work injury, would not have disabled the person by itself, it is that final injury, which along with the disability from the preexisting injury causes the petitioner to be totally disabled. In that scenario an injured worker would be entitled to total permanent disability benefits paid by the worker’s compensation carrier along with the Second Injury Fund. Total and permanent disability benefits are paid for the rest of the worker’s life.

As stated, a preexisting injury does not preclude an injured worker from bringing a worker’s compensation claim in New Jersey. In many instances, the prior injury, can be used to the injured worker’s advantage to obtain a higher dollar settlement, and maybe even to get total permanent disability benefits through the Second Injury Fund. Therefore, if you have been injured at work, and had suffered a prior injury to the same body part, do not accept a Worker’s compensation carrier’s denial of your claim. Seek legal counsel to ensure that you obtain the worker’s compensation benefits to which you are entitled. 

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