Boston Personal Injury Lawyers Blog

The law in Massachusetts regarding exacerbation of pre-existing injuries is crystal clear and yet cases involving a worsening of an underlying condition can be extremely difficult to prove. Massachusetts law holds a defendant who injures another as a result of negligence responsible for the exacerbation of any pre-existing injury that plaintiff suffers as result of the accident. Despite the state of the law, plaintiffs' lawyers often face vigorous opposition when attempting to convince an insurance adjuster and defense attorney that the accident at issue caused the plaintiff's underlying condition to worsen.

Plaintiffs' attorneys typically encounter exacerbation of injuries as it relates to the neck and back. A plaintiff may have an underlying herniated disc in his neck for which he received conservative treatment five years prior to the accident. The plaintiff is subsequently injured in a motor vehicle accident which causes him to have severe neck pain. Following the motor vehicle accident, the plaintiff receives medical treatment including surgery on his neck. That plaintiff often faces an uphill battle attempting to prove to a reasonable degree of medical certainty that the motor vehicle accident exacerbated the underlying neck injury and necessitated the resulting surgery.

Plaintiffs such as the one just described with underlying injuries that are exacerbated as a result of a personal injury case should be prepared to hear that the condition was pre-existing and nothing the defendant did caused the underlying condition to worsen. Plaintiffs must refute the defendant's denial of the claim by demonstrating through use of the medical records, radiological films and experts that the pre-existing condition was in fact worsened as a result of the negligence of the defendant.

Continue reading "Pre-existing Injuries in Personal Injury Cases" »

A work related back injury is perhaps the most common injury which results in claims under the Massachusetts Workers' Compensation Act. And while it is the most common, it is also the injury which is most likely to be contested by the workers' compensation insurance company. 

Workers' compensation insurance companies routinely deny these claims, most often on the basis that the injured worker had a prior back injury. These denials are made even if the old back injury occurred years before the work related accident and the injured worker had performed his or her job without difficulty since that back injury years before. What's more, the standard used to evaluate injuries of any body part previously injured complicates the case further. So, how does one approach this situation?

The place to start is to give an accurate history of the injury to every medical provider who treats the injured worker. While it is understandable that one may be concerned that he or she injured his or her back previously, attempting to hide that information is not likely to succeed. Insurers have resources which they utilize to obtain information about anyone who makes a Massachusetts workers' compensation claim. And if the insurer knows that medical history, then the treating doctor should know the same. But keep in mind that an accurate history to the medical providers is most important, not for the claim, but the information that it provides to those who treat the injury as it may give the doctor additional insight to the injury.

It is also essential that the medical providers understand how the injury occurred, and that it occurred on the job. It is also important that an injured worker describes the physical requirements of his or her job. One should not use a job title to describe his or her work, but rather explain in as much detail or possibility the job's physical demands including how much time is spent lifting and carrying, sitting, standing and walking. Be sure to provide information about the weights lifted, and whether one experiences extremes in temperature at work. Do not assume that a doctor knows this information. In fact, the doctor may actually be mistaken about the physical requirements of a particular job, and assume that the injured worker can return to it.

An employee who suffers a work related back injury must also be concerned when pain radiates, or moves from the low back down the leg, sometimes actually traveling into the foot. This radiating pain is often the result of a serious back injury. When one experiences such radiating pain, the treating doctor should be notified immediately. Early intervention when this type of pain occurs can reduce the long term effects of this symptom.

When an employee suffers a low back injury at work, rest is often times the best treatment. However, if the pain persists, then a diagnostic test such as a MRI might be advised. Under the Massachusetts Workers' Compensation Act, permission from the workers compensation insurer must be obtained before that test is administered. Massachusetts adopted utilization review guidelines for the treatment of low back injuries, including diagnostic tests such as MRI, which should be consulted by the medical providers. Massachusetts Workers' Compensation insurers must designate an Utilization Review Agent which should be contacted by the doctor prescribing the MRI, or the facility where it is to take place, before the test is given. This also applies to physical therapy and any other treatment plan, including surgery, developed to address a work related low back injury.

Perhaps the most critical time in recovery from a back injury takes place when the injured worker begins to feel better. It is essential that the doctor's advice with respect to restrictions be followed until the doctor changes them. When the injured worker begins to feel better it is a sign that the doctor's treatment plan is working. That treatment plan, however, is a dynamic strategy which changes as the inured worker responds. Let the doctor make the changes to plan. One should not assume that because he or she feels better that physically that the injury has healed. Don't take one step forward and two steps back.

If you, or someone you know, has suffered a injury at work which involves a pre-existing condition, work related or not, Massachusetts workers' compensation payments may be available for disability and/or medical care. Speak with a highly experienced workers' compensation lawyer, by clicking here, or phoning Parker Scheer LLP seven days a week, toll free at 866-414-0400. There is no fee charged to discuss your case, and all information furnished, will be kept strictly confidential.