Michles & Booth Video Blog: Permanent Aggravation to Pre-Existing Condition
Good Morning. I’m Marcus Michles. Welcome to this week’s installment of our video blog. I’m here at Michles & Booth, our Pensacola office, and I’m going to talk a little bit today about something that sounds like common sense but a lot of times is misunderstood.
Now I was scheduled to be in trial right now, and the case settled late Saturday evening, proving once again that at any moment a case can settle. It had been pending for years. It had been mediated. It had gone to mediation, I believe twice, and it wasn’t until we were hours before the trial was going to start that both sides got serious about resolving it. Then you know, sometimes you don’t get all you want. Sometimes both sides have to be a little bit disappointed in order to make a deal happen, but one of the issues in this case is what I want to talk to you about.
In my case, I represented a great guy, great family hurt in a car accident. The insurance company just didn’t want to pay; not an unusual script around here, but what was really at issue was that my client was in this middle sixties, and like a lot of people that live to be sixty, they have developed over the years some minor back or neck pain. The question in our case was: was the car accident the cause of additional permanent injury to my client’s neck?
There is no doubt that he had treated for several years with a chiropractor before the accident; no real debate that he had some minor problems occasionally with his neck. I think that he’d seen the chiropractor twice in the year prior to the car accident, and seeing the chiropractor three or four times the year before that. So there is no question that he wasn’t a brand new neck. He had some mileage on his neck, but in this car accident, it was made worse and ultimately had to get some pain management injections, and he had to get a spinal cord stimulator put in and was really working hard to avoid surgery. But the question that that brings up today is: how does Florida law treat an aggravation to a pre-existing condition, because if you think about it, the longer you live, the more likely you got a few dings.
I used to draw the analogy to my pickup truck. I used to, until very recently, I got rid of my 2005 Ford pickup truck, and it had a few dings on it. Now if somebody backed into it out in the parking lot, and put another ding in it, I don’t get a new truck. That wouldn’t be justice. That wouldn’t be equitable, but I do have the right to get that ding, that new ding, repaired. So the person that backed into my truck isn’t responsible for making it brand new, but they’re also responsible for the additional damage that they do. It’s very similar when you think about aggravation of a pre-existing condition in Florida.
In Florida, under Florida law, anybody’s entitled to make it a claim for compensation if they’ve suffered a permanent aggravation to a pre-existing condition. A lot of times I describe it this way. Let’s say you’ve got a sore back, and on a scale of 1 to 10, it’s a 3, and every year, you know, you got this 3 on the pain scale back, and you’ve just have learned to deal with it. You learn to deal it. You take Motrin or maybe occasionally you go to a chiropractor. You got a family practice doctor to prescribe you some medicine. Whatever it is, you’ve got a back that aches on about a level of 3, but then, BANG! You get into a car crash. Now your back really hurts, or your neck really hurts, and it’s not a 3. Let’s call it a 6, and you go to the emergency room, and they treat you. They give you muscle relaxers, and you go to the doctor and eventually, after about six months, they calm your back down a little bit, and it returns to where it was before the accident, a 3.
Well, if you’re if your injury goes back to where it was before the accident, you don’t have a permanent aggravation to your pre-existing condition. You had a temporary aggravation, and you’re entitled to your medical bills, your lost wages and your tangible damages for that window where your pain was a 6 up from a 3; but since it went back down to 3, no permanent aggravation.
What if however you don’t return to a 3? What if you’re rocking on at a 3, and
BANG! You get into a car crash. It goes up to a 6, and everything your doctors do to try to make it better, they just don’t make it better, and now your baseline, your everyday back, hurts on a scale of let’s call it 6 on that one to 10 scale. Well, now you have a permanent aggravation to a pre-existing condition. It’s permanently worse as a result of that car crash.
Under those circumstances, Florida law allows you to make a claim, but you’re already thinking that’s a pretty tough claim to prove, isn’t it? I mean because we don’t really have pain scales that you can measure through a test, so when my clients say “Hey, I’m worse now than I was. My truck didn’t have that ding on it before today. It had some other dings but these dings are worse”, that becomes the battle that often times leads you to the courthouse. It’s not that you don’t have a claim. You do, but it’s harder to prove. Now, if you are a brand new neck, if you’re a brand new baby, and you didn’t have any dings on you, and you got a car accident, it’s pretty easy to see that ding; like on a new car. If you get a scratch on a new car, you can see that. It stands out. A scratch on a 10-year old car doesn’t stand out as much.
So the best way to prove a pre-existing injury and the aggravation of pre-existing injury is a before and after medical provider. We often send our clients back to the doctors that have treated them in the past; those ones that know that it’s a 3. So they can see the patient and say “Oh, this patient is worse now than they were the last time I saw them. They’re now a 6”. And I’m using those numbers, but you can understand sometimes it’s measurable on an MRI. Sometimes the progression is measurable on a on a plain film x-ray or CT scan. Sometimes the doctors just know. They’ve measured range of motion. They see the spasms. They know that they’re worse. They know their patient’s change from the way they had been before the accident. So if you’ve got a few dings on you, if you’re out there and you’re not a brand new truck, you got a couple a dings, but you pick up a new doing in a car accident, you’re entitled to make a claim for a permanent aggravation to a pre-existing condition.
If you’ve got questions or you want to make some comments, feel free to contact me. I’ll help you with the subtleties. I’ll fill in some of the details. If you want to look at this or look at some of our other installments to our video blog, go to Michles & Booth or michlesbooth.com/blog. I got that wrong last week. If you want to, give me a call. Make suggestions. Ask questions. We’ll be happy to answer them.