Chances are most people who have lived an active life and are over 40 years old have suffered some kind of orthopedic injury. Whether that be from a previous car accident or an old sports injury or regular degeneration that occurs with getting older. But what happens when you have a prior injury and are involved in an accident and suffer an injury to the same area? Fret not, the law still allows you to recover compensation for the new injury but there are certain considerations that will determine how the claim is made.

Was the old injury symptomatic when you got into the car accident? This is probably the most important question an experience personal injury lawyer will ask you when they dive into your case. And there is no wrong answer.

Let's use a low back injury as an example. Our plaintiff has a prior sports-related injury to her lower back that required treatment via injections and physical therapy. But that was 10 years ago and she hasn't had any treatment since. Then the crash happens and her low back is injured again, this time much more severe. And she needs to have lumbar surgery to repair the damage. In this instance, the plaintiff is entitled to the full amount of medical bills, noneconomic and impairment damages from the car accident. The law considers her to be an "eggshell" plaintiff: she had an underlying vulnerability to her low back that was not causing any problems at the time but was more susceptible to injury now. A Colorado jury instruction tells the jury to take the plaintiff as they find her. In other words, the fact that she had an old injury should have no impact on how she was hurt now since that old injury was for all intents and purposes healed when the crash happened.

Contrast that with the plaintiff who has the prior back injury and she is getting treatment or it is still causing her pain. Fret not, she can still recover damages for the car accident. But, the law calls this an "aggravation of a pre-existing condition." And she is only entitled to recover damages for the aggravation of her previous back injury. And the jury (if it goes to trial) must apportion her damages from those she already had vs. those that were caused by the car accident. 

Doctor Performing Surgery for a Back Injury

An experienced injury lawyer will use the plaintiff's doctors to explain how the current trauma impacted the prior injury. Often, the plaintiff will need to be seen by an expert orthopedic physician to do a full examination, review all prior records/imaging, and offer a conclusion about how the jury should apportion the increased injury. 

The second scenario does present a more complicated case for the injured victim but those complications can be overcome with good representation and medical care. If you have been hurt and have questions about how a prior injury impacts your current case, please contact Kane Trial Law at 303-919-7777 for a free consultation.