It is a commonly held belief that prior injuries and pre-existing conditions will prevent an injured worker from being fairly compensated for a new injury or an aggravation of an old injury.
More often than not, the exact opposite is true.
This misunderstanding of the law can lead an injured worker to want to play down, or even worse, fail to disclose an old injury or illness.
By down playing or failing to disclose a prior injury or pre-existing condition, the injured worker is hiding evidence that would explain why a seemingly minor accident at work, or why just working conditions on the job. created such a problem for you.
No Apportionment of Disability
One of the reasons for this counter-intuitive result is that there is no “apportionment” of disability under the Longshore and Harbor Workers’ Compensation Act.
Under the Longshore Act, if an accident at work, or conditions at work, aggravate a prior injury or pre-existing condition, you are entitled to be compensated for the entire injury or problem.
This is very different from other areas of law, such as injury claims from automobile accidents, medical malpractice and California Workers’ Compensation. Under those areas of law, you would only be entitled to compensation for the percentage that the new injury increased or worsened, rather than the overall disability.
Longshore Act Prior Injury Example
20 years ago while a high school student, Joe hurt his knee playing football and had surgery. Joe then became a longshoreman right out of high school.
Ten years later, he was in a car accident unrelated to any work activities. He injured his back, and aggravated his old football injury. Shortly after that accident, the doctor rated the disability in his knee at 10% and Joe settled the car accident claim for $10,000.
Over the next 10 years, as Joe worked on the docks, his knee began to bother him more and more, particularly at work.
One day at work, Joe twisted his knee going down the steps of the top handler he operated. It didn’t seem like a big deal at the time, but by the end of his shift his knee was swelling, so he reported the injury and got a doctor’s slip.
The doctor told Joe that his knee was worn out from the two old injuries and the work he did as a top handler operator, and he required knee replacement surgery. After the surgery, the doctor rated the disability in his knee at 35% and reported that 25% of the disability was due to the two prior injuries and 10% due to work activities.
Under the Longshore and Harbor Workers’ Compensation Act, the longshore worker is entitled to compensation for the whole 35% disability, not for just the 10% increase.
Furthermore, if the longshore worker had not disclosed his prior injuries to his doctor, the injury would likely have been controverted, because the extent of the disability would have been inconsistent with the relatively minor injury at work.
Contact the Longshore Injury Hotline
At the Longshore Injury Hotline, we provide free consultations and are happy to answer any questions you have about your rights under the Longshore Act. Please call us today toll-free at 888-Longies (888-566-4437), or complete our confidential form and we will follow up with you directly.
