When a liability insurance company assesses your claim for injuries and discovers you have pre-existing injuries, they will do everything within their power to attribute the new injuries to those already in existence to avoid having to honor the full terms of the claim. Any offer they make will be substantially reduced as a result.
You are free to challenge their findings. You are entitled to be fairly compensated for any new injuries regardless of whether you had pre-existing injuries or not. This is true even if the new injuries are as a result of aggravation to pre-existing injuries. Whether your new injuries were sustained as a consequence of an automobile accident, a fall or even a dog attack, they must be recognized as being new and compensation given accordingly.
Being entitled does not mean that getting compensated will be easy. In fact, the opposite is usually true. The insurance company will still try very hard to deny your pain and suffering was as a result of your current claim, and the onus of proof will be upon you. You will also need to be able to prove their client was at fault.
Proof of Liability
One unmistakable fact, regardless of whether you were injured or not, is that if you can’t prove the other person to be at fault, you have no claim. Though the laws regarding liability vary from state to state there are some general guidelines to go by:
- You were owed a reasonable duty of care by the party at fault;
- The party at fault was negligent and therefore breached that duty;
- Your injuries were sustained as a result of their negligence;
Proving liability requires you to have strong evidence that the party at fault did something wrong that caused you harm. Some ways to provide that evidence are through photographs, statements from reliable witnesses, a police report or incident report, medical records outlining your injuries in detail, and proof that the injuries sustained were new and not pre-existing.
Regardless of whether the injuries you sustained as a result of the other party’s negligence were new or whether their negligence aggravated pre-existing injuries, the onus of proof is on you and any auto incident attorneys you hire. Medical records that are precise and complete are the best way to prove the other party’s liability. You will need medical records that clearly state your injuries both prior to and after the incident occurred. Many of the top personal injury lawyers will help you through all this paperwork.
Your doctor needs to be advised of your need to prove injuries for a claim so that he or she can be very detailed in their written narrative. He or she will need to state on your medical record that the injuries are new and not pre-existing. A doctor’s expert medical opinion is very difficult for an insurance adjuster to argue against.
Through the likes of CAT scans, MRI’s, x-rays and personal observation as well as other diagnostic tests, your doctor will not only be able to state that the injuries are new but also back their statement up with visible proof in the way of charts and test results. The doctor’s reason for requesting such tests and the time at which they were both ordered and undertaken will also help substantiate their conclusion, and therefore help you prove your claim.
When you have pre-existing injuries, it is imperative that you fully disclose them when making a claim. When claiming for new injuries as a result of their client’s negligence one of the first tasks an insurance adjuster will undertake is to research the possibility that you have pre-existing injuries. In fact, the adjuster is highly likely to request your medical records, and although he or she has no legal right to see them refusing to comply is likely to lead to a denial of your claim. At this time he or she may already be aware that you have pre-existing injuries and will be waiting to see whether you disclose them or not.
When the time comes that you are called to a deposition the last thing you want is to be questioned as to why you failed to disclose the pre-existing injuries. Failing to disclose right from the outset will seriously undermine your credibility, and severely decrease your chances of having your claim accepted.
It is just as important that you advise your doctor at the time of examination of any and all injuries sustained at the date of the accident so that he or she can accurately report them in your medical records. As their written notes are the strongest piece of evidence you hold in proving your injuries and the extent of them you need to accept their diagnosis and prognosis, and hope that their reporting of your injuries states that they are in fact new and not pre-existing.
Law Office of Rodney K. Okano
6069 S Fort Apache Rd #100,
Las Vegas, NV 89148, USA