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PREVIOUS INJURY AND WORKERS’ COMP

The claim form used to file for workers’ compensation benefits includes this question: “Have you had another injury to the same body part, or a similar illness?” Some workers, afraid that answering “yes” will cause their claim to be denied or their benefits to be reduced, incorrectly answer “no.” All too often, these workers are later accused of fraud based on the fact that their answer was inaccurate.

The fact that a worker has a previous injury does not mean that their claim for workers’ comp benefits will be denied. There is no rule that says a person is only allowed to injure a body part one time, and in practice employers and insurance companies rarely rely on “pre-existing condition” as the basis to deny a claim.

It is true that employers or insurance companies will sometimes argue that an injured workers’ disability should be “apportioned” between the work-related injury and a previous injury or condition in an effort to reduce their liability for payment. However, these arguments almost always fail. New York is a “wage loss” state, which means that if the person was able to work and earn wages with their previous condition, then that condition was not a “disability in a compensation sense” and should not be considered in awarding benefits.

Even in the area of “schedule loss of use” for permanent injury to a limb, then to reduce an award the employer or insurer is required to show that the previous injury “would have” resulted in a schedule loss of use, which it is rarely able to do.

Of course, if the previous injury was work-related then different rules apply in order to divide responsibility among multiple workers’ compensation claims, but again this rarely results in a reduction in an injured worker’s benefits.

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