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
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
In the case Beausejour v. Chamberlin Plumbing and
., 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.