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Vancouver Personal Injury Lawyers  Explain “Pre-Existing” vs. “Exacerbated” Prior Condition

By Tal Wolf

The Vancouver personal injury lawyers at MacLean Law know that a common defence that insurance companies, including ICBC raise to lower the value of your personal injury claim settlement is that you had a prior medical condition, and now you’re blaming the recent accident as the cause of  it.

Rest assured our Vancouver personal injury lawyers at MacLean Personal Injury will help turn this theme into a double-edged sword: the same pre-existing condition often can be shown to have caused further damage and injury. The law requires that the at-fault party take the personal injury victim as he finds him or her. It’s called the “thin skull” doctrine.

For example, a person suffers from a condition which may result in bone fractures after only a minimal impact to the body. When they are rear ended at very low speed where normally whiplash may have been the only injury, the individual instead has their shoulder broken when the seat belt tightens up. An otherwise minor claim has now become a large claim with high monetary value, because of the victim’s heightened susceptibility. To ensure you are not deprived of justice, call our accomplished Vancouver personal injury lawyers now at 604-602-9000. Our lawyers are fluent in Mandarin, Cantonese, Punjabi, Hindi and Farsi as well as English.

Recent Case On Pre-Existing Condition and Vancouver Personal Injury

A recent decision from the BC Supreme Court presented our top ICBC Vancouver personal injury lawyers with a great opportunity to demonstrate to you exactly how this issue arises.

George v. John Doe, 2015 BCSC 442 involved a car accident where the plaintiff suffered injuries to the neck, back and shoulder. He had been injured in a previous motor vehicle accident and had back pain as a result. The plaintiff had worked at various jobs and was laid off at the time. He testified the accident caused neck, left shoulder and low back pain, the latter of which had become worse, and it caused him to miss work and recreational activities. The court held:

[145] I conclude that Mr. George had degenerative changes in his back, in particular in his lower back, that were symptomatic and caused mechanical back pain, before the accident that happened on June 21, 2009; and probably even before the accident in June 2006. I conclude that when the June 2009 accident happened, Mr. George had not fully recovered from the injuries to his neck and back caused by the 2006 motor vehicle accident. The 2009 accident aggravated the pre-existing injuries and caused a temporary exacerbation of the pre-existing symptoms.

[146] I conclude that even if the June 21, 2009 accident had not happened, Mr. George would have had increasing neck and back pain – in particular, lower back pain, due to the deteriorating condition of his spine.

[147] I conclude that but for the pre-existing degenerative changes in Mr. George’s spine, he would largely have recovered from the injuries caused by the 2009 motor vehicle accident by time of trial and that the symptoms he currently experiences are primarily, but not entirely, caused by the degenerative changes in his spine.

[148] I conclude that in the near future the accident injuries will cease to contribute to the symptoms experienced by Mr. George and the pain in his back and neck will be no worse than what he would have experienced even if the 2009 accident had not happened.. . . .

[175] The expert medical evidence I have accepted – the opinions of Drs. Paquette, McGraw, and Connell – all indicate that Mr. George had chronic mechanical low back and neck pain before the accident, caused by degenerative changes in his spine. Dr. Paquette’s opinion was that the temporary exacerbation of symptoms caused by the 2009 accident had largely resolved and that ongoing symptoms were more probably caused by the preexisting degenerative condition. I interpreted the opinions of Drs. McGraw and Connell to be that the accident injuries may have continued to make some contribution to the symptoms, but that Mr. George would have had chronic back pain even if the accident had not happened.

Interestingly, the court seemed to split the “pre-existing” issue both ways. On the one hand, the injuries from the later accident were found to have temporarily exacerbated the previous damage, but the court also found that the plaintiff’s neck and back pain would have worsened regardless of the second collision years later. Thus, the court allowed the pre-existing condition to “contribute” to the later injuries (the thin skull in play) for 3-4 years, but no longer. As well:

[165] Mr. George’s first employment after the accident on June 21, 2009 was working for Preston Chevrolet Oldsmobile from August 2010 until December 2010. Mr. George voluntarily chose to leave that job. I accept that the work was causing him discomfort but he was not “forced” to leave the job – he said he chose to leave because he felt bad about his absences. By voluntarily leaving his employment he failed to mitigate his loss of income.

Again, the pre-existing injuries were found to have exacerbated the plaintiff’s ability to finish his college classes, thereby impacting future employment prospects – but the plaintiff was held responsible for not attempting to return to school later on (yet another defense doctrine called “failure to mitigate damages”).

The George case illustrates just how tricky it can be to navigate the legal doctrines at play when the plaintiff comes into an injury situation unhealthy or previously injured. Don’t be alarmed. Many personal injury clients come to MacLean personal injury law offices in Vancouver with some pre-existing medical history or condition. The question is: how will it affect the new claim? You need to find out early on to avoid an unpleasant result.

If you were still coping with residual pain from a prior life event when your new accident happened, make sure to call 604-602-9000 and speak to one of our skilled and aggressive Vancouver personal injury lawyers right away.

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