Exacerbation of Preexisting Injury from an Accident

Hi, I’m Tim Williams with Dwyer Williams Potter Attorneys.  I’m the lead litigation partner here at the firm.  I want to talk about the situation where someone enters into an accident when they have preexisting or prior problems at the area of the body where they’re injured.

For example, let’s say a person has ongoing neck pain from a prior injury, and the neck pain is down to a level like here (indicating), let’s say this is bad, bad pain; this is no pain at all, the level of the table.  The neck pain is down; it’s like a two out of ten.  And they get in an accident and it is exacerbated or made worse—it’s like an eight out of ten.  So what is the person to do?  What are they entitled to, you know, from the insurance company in that situation where they had ongoing neck pain before but it was made worse by the accident.

Well, this is common sense to most of us but, unfortunately, to insurance companies it apparently isn’t.  What Oregon law provides for essentially is that if you had a two out of ten neck pain before, and then you’re left with an eight out of ten neck pain afterwards, you can recover from the insurance company the difference.  So you don’t get to recover the two you would have already had in the first place because you have the ongoing injury and disability, but you can recover for the difference between where you were and where you’re left.

What you see is a jury instruction.  That means the judge reads to the jury at trial the following as it relates to an aggravation or a preexisting injury or disability.  It reads, in the present case, the plaintiff—and that’s the person who is injured, is called the plaintiff.  So, in the present case, the plaintiff has alleged that the injury which he or she sustained is a result of the negligence or fault of the defendant—that’s the person who caused the accident—aggravated a preexisting injury or disability of his or hers.

So, in other words, the defendant’s—through the defendant’s fault, it aggravated this preexisting injury or disability.  So the judge would go on to read, in determining the amount of damages, if any, to be awarded to the plaintiff in this case, you will allow him or her reasonable compensation for the consequences of any such aggravation that you find have taken place as a result of the defendant’s negligence.  The recovery should not include damages for the earlier injury disability, but only those that are due to its enhancement or aggravation.

So Oregon law is very clear on the issue.  If a person comes into an accident, through no fault of their own, and they already had some level of pain—let’s say two out of ten—and then they are left, after the accident, with an eight out of ten pain level, they can recover the difference in terms of their noneconomic damages or pain and suffering.

They don’t get to recover for the initial two because they would have had that anyways, but they can recover for the additional six that the defendant caused.  Also, if the person was able to work a job, let’s say at Les Schwab, with that two out of ten pain level, but after the accident they couldn’t work that job anymore, the Court says that they can recover for the loss of their job, because they came into this situation able to do the job, but they were left without a job.  So, again, the courts are very clear on the issue.

I hope you found this information helpful, useful.  I’ll just point out that insurance companies generally ignore it.  It’s interesting, they’ll say that someone had pain before, and so how are they going to recover any money afterwards?  I mean, they already had pain, they had pain all the way through.  They completely ignore this exacerbation jury charge that the judges give to the juries, but that is law in Oregon.

So it’s very frustrating from a lawyer’s perspective to listen to the same thing from the insurance companies, and I’m sure it’s frustrating from the folks who are actually injured to listen to the same things from insurance companies.  And, unfortunately, some of those folks aren’t able to recover the full amount of damage because they’re none the wiser, and don’t consult with a lawyer.  So, again, hopefully, you found this information useful, informative, and I would encourage you to

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