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The Hart Law Firm

Handling a Pre-Existing Injury Defense Raised by Your Non-Subscriber Employer

pre-existing work injury claimIf you are hurt on the job and work for a non-subscriber employer who does not provide workers’ compensation benefits, you must prove your employer’s negligence to obtain the compensation you deserve. As a non-subscriber, your employer is barred from raising certain defenses to your claim. However, one defense that you may have to deal with in settling your claim is the argument that your injuries were caused by a pre-existing condition.

How Your Employer Could Raise Your Prior Injuries as a Defense to Your Workplace Injury Claim

Whenever an employee is injured on the job, his medical records will be crucial to his claim for compensation for his medical bills, possible permanent disabilities, lost wages, and pain and suffering. An employer will also find these records helpful and will review them extensively to see if they provide information regarding any pre-existing injury. This is a prior injury to the same body part as was injured while the worker was on the job. An employer could try to use this information in one of two ways:

  • An employer could argue that the prior injury was completely caused by a prior incident and not what happened at work. Therefore, the employer owes no compensation to the employee.
  • In some cases, the employer may only be able to claim that the pre-existing injury contributed to this new injury. In this scenario, the employer would be claiming that he is only partially responsible for compensating the worker.

How an Experienced Attorney Can Help Defend Against an Employer’s Pre-Existing Injury Defense

An experienced workplace injury attorney will have strategies to minimize or eliminate the effects of a pre-existing injury defense. Depending on the facts of your case, he could use these approaches:

  • The previous injury is irrelevant. In some cases, the pre-existing injury happened years ago and has no bearing on the current injury. Your attorney could hire an independent doctor as an expert as well use information from your treating physician to show that the pre-existing injury has no bearing on your current one.
  • Use of the thin skull rule. Texas follows the thin skull rule, which basically means that an employer takes an employee in an “as is” condition. Just because an employee is more prone to injury does not mean that he is entitled to less compensation. An attorney can use this rule to argue against the employer’s claim that your prior injury contributed to the one caused at your job.
  • Use of a reconstruction expert. Your attorney may want to hire a reconstruction expert who can reenact what happened when you were injured and show that the circumstances would have caused your injuries regardless of any prior injuries to that body part.

The key to defending against a pre-existing injury defense is thorough preparation and review of the medical records by your attorney and a qualified medical expert. You need a lawyer who has strategies to refute this defense and understands Texas’ complicated non-subscriber employer laws. Contact us online or call us directly at 817.380.4888 to schedule your free consultation to learn how the Hart Law Firm can help you.

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