Delaware Workers’ Compensation and Preexisting Conditions

If you had a pre-existing condition that was made worse at your job, you may still be entitled to workers’ compensation. The Delaware attorneys of Silverman, McDonald & Friedman can help. Contact us in Seaford, Wilmington, or Newark today to learn more.

The insurance companies and defense lawyers for employers will try every strategy they can to deny or limit your workers’ compensation claim. One common argument they’ll try to make is that your injuries or illness are due to pre-existing conditions – conditions that existed before the onset of your injuries or illness.

For an example, say you injure your knee at work. The employer may argue that any pain your experiencing is due to a prior injury to the knee. The insurance carrier or lawyer will ask whether you:

• Had any prior accidents that affected the knee
• Had a prior surgery on the knee
• Received any medical care on your knee
• Other healthcare questions related to your knee

If the insurer/defense lawyer can show that your current inability to work and your current medical care are due completely to a pre-existing condition, your claim for Delaware workers’ compensation benefits will be denied. If, as is more often the case, your current injury made a pre-existing condition worse, then you do have the right to claim medical benefits and wage loss benefits – though your pay benefits may be reduced based on the severity of the pre-existing condition and whether the prior injury fully healed.

Which pre-existing conditions are most likely to be questioned?

Say you break your leg at work. It is clearly a work injury, even if you have broken that leg before. (Though that may not stop lawyers from arguing that the bones were weak already.)

However, certain types of injuries or illnesses may be more likely to be questioned. Those can include:

• Chronic pain
• Joint injuries
• Cancer
• Any type of repetitive stress injury
• Respiratory illnesses
• Any injury where there’s evidence of a prior surgery
• Orthopedic injuries

The rights of the insurance carrier for the employer

Generally, the employer’s insurance company does have the right to ask about your prior medical history – but only as it relates to your current injury or illness. The insurance company can’t go on a fishing expedition by asking about every ailment you’ve had since you were a child.

The employer has the right to seek an independent medical exam. The doctor is usually a physician selected by the employer to find out if there’s any reason to deny your claim or terminate your benefits.

If the employer suspects fraud, or that you’re not being honest, they may hire investigators to review your social media accounts and personal history to see if you had a prior accident.

While you do need to answer questions by the employer honestly, our experienced Delaware work injury lawyers protect you from unreasonable efforts to pursue a pre-existing injury defense. We work with you and your doctors to verify that your current medical disorders are:

• Due to a new accident
• Affecting a different part of the body than any prior pre-existing health condition
• Now more severe than the original pre-existing condition, and that the new accident aggravated your prior injury

We also work with your prior doctors to verify that your prior health problems were treated and healed. For example, if you had a prior arthroscopic surgery on your knee due to a meniscus tear, you can claim benefits if you re-injure your knee and require a second arthroscopic surgery.

At Silverman, McDonald & Friedman, our experienced Delaware workers’ compensation lawyers understand the tricks and strategies employers try to use to deny your claim. We fight to get you the full benefits you deserve. We work to show the legal and factual arguments insurance companies use don’t apply to your case. In many pre-existing injury cases, we can show that your case is an exception. For help with any type of work injury or illness, please call us at 302.888.2900 or fill out our contact form to pursue your workers’ compensation claim.