Work need not be the cause of covered injury
Published 05/18/99

Medical insurance plans often contain an exclusion for "preexisting conditions," that is, if an individual had a certain medical problem before being covered by a medical insurance policy, treatment for the preexisting condition may not be covered by the medical insurance. Workers compensation insurance, by contrast, does not exclude coverage due to preexisting conditions. Rather, New Hampshire law specifically provides that even if a work-related injury is the aggravation of a preexisting problem, it is still covered by workers compensation insurance. However, the insurance carrier has the right to claim the injury is a recurrence of the prior injury rather than an aggravation. The fact that the injury happened at work does not necessarily mean the work caused the injury. The employee must show that a specific incident or incidents (repetitive motions for example) at work caused an aggravation of the prior injury.

For example, if an employee hurts his back while lifting a heavy box at work and becomes disabled as a result, most people understand that the employee would qualify for workers compensation benefits due to that injury, particularly where the employee has never previously had any back problems. However, even if the employee had suffered from back problems in the past, if the lifting of the heavy box aggravated or reactivated those problems, the injury would still be covered by workers compensation.

Furthermore, the benefits which the injured employee is entitled to are not in any way reduced due to the preexisting condition. If the employee is totally disabled by his injury and is unable to work, he is still entitled to receive 60% of his average weekly wage from his employer while he is disabled. It does not matter that the employee had suffered from back problems for years before he ever worked for this employer. Likewise, the medical treatment for his back should be completely paid for by the workers compensation insurance carrier. The insurance carrier cannot point to previous back problems as a reason to not pay for needed medical care. In this respect, medical coverage for workers compensation injuries is very different from many regular medical insurance policies.

While it will not affect the benefits available to the employee, where there is a preexisting injury, there may be a dispute between the employee’s current employer and the employee’s past employers. If the problem was originally caused by an injury at the employee’s previous job, and if there was no intervening "traumatic event" at the new employment, the current employer may be able to require a previous employer to pay for the benefits due to the employee. For instance, if an employee develops pain in his neck from continuously staring at a computer screen, and if the employee had injured his neck at a previous job, the current employer could seek to have the workers compensation benefits due to the employee paid by the former employer. The employee would still make his workers compensation claim to his present employer, but the present employer might consider making a claim against the previous employer.

Finally, even if the employer can show that the injury would have occurred at some point even if the employee had not undertaken the employment, workers compensation benefits are still due to the employee if the accidental injury occurs on the job and is due to an employment related cause. A heart attack suffered by a construction worker while digging a ditch could give rise to a valid workers compensation claim, for example, even if the employee would have at some point suffered a heart attack anyway due to his poor health.

The attorney who wrote this article is no longer at the law firm of Hamblett & Kerrigan, P.A. in Nashua. Other practitioners at the firm handle work in the same areas of law which he worked in, which included employment law, family law, and general litigation, including property tax abatement and personal injury.You can reach one of those lawyers by calling the law firm (883-5501) or by e-mail at info@nashualaw.com .

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.