Workers’ Compensation for Aggravation of a Pre-Existing Condition in Virginia

A past back surgery, a finding of degenerative disc disease on your lumbar MRI, or an old workers’ comp claim does not bar your benefits in Virginia. If a work accident aggravates or worsens that pre-existing condition, the resulting disability and treatment are still covered. The insurer may tell you otherwise, but they are often wrong. This page explains the rule for pre-existing conditions, the difference between an aggravation and an exacerbation and why the insurer cares, how I attacked claims when representing insurers, and what evidence you need to win.

The rule: the employer takes you as it finds you

Having a pre-existing condition does not change what you must prove to receive workers’ compensation benefits in Virginia; you must still show all the elements of a compensable injury by accident.

What does change is the fight about causation.

Once you prove the accident happened, Virginia does not require that you were in perfect health before it. The Supreme Court of Virginia has held that when an employee has a compensable injury that materially aggravates or accelerates a pre-existing condition, the resulting disability and need for treatment are compensable under the Workers’ Compensation Act. See Ohio Valley Construction Company v. Jackson, 230 Va. 56, 334 S.E.2d 554 (Va. 1985).

This common-law rule means two important things. First, Virginia does not apportion disability and medical treatment between the compensable injury and the pre-existing condition. The insurer does not get to pay 40 percent of your wage loss because 60 percent of your disc disease was already there. If the accident worsens the condition or causes disability from work, the insurer must pay.

Warning: Unlike temporary total disability, temporary partial disability, and lifetime medical benefits, claims for permanent partial disability may be subject to apportionment when the permanent impairment results, in part, from a past injury. This is also where the aggravation-versus-exacerbation distinction below can hurt your case: a finding that you suffered only an exacerbation makes it difficult to prove any permanent impairment from the work accident at all.

Second, the words from your doctors matter. The Workers’ Compensation Commission looks through the record for a treating physician who says the work accident “aggravated,” “accelerated,” “exacerbated,” “flared,” or “worsened” the condition, that the accident is “a cause” of the current need for treatment or disability, or that the injured employee suffers from acute superimposed on chronic pain. A doctor who writes “consistent with degenerative changes” and nothing else has put the insurer in a strong defensive position.

An example of how workers’ comp treats pre-existing conditions

By far, the most common workers’ compensation situation involving a pre-existing condition is an old back injury, followed by pre-existing knee and shoulder injuries. Work-related head injuries with a prior history of concussion are also common.

Maybe this example hits close to home.

You are a nurse who suffered a herniated disc in a slip and fall at home many years ago. After undergoing a microdiscectomy and a few months of physical therapy, your doctor released you to full duty.

You continued to work as a bedside nurse for several years until you hurt your back again while transferring a patient from a wheelchair to a hospital bed. Now you’re in pain, with numbness and tingling in your lower back and both legs. Your treating physician, the same one who operated on you several years ago, wants you to undergo a lumbar fusion.

Don’t be surprised if the insurance company either (a) denies your claim soon after it finds out about your past surgery or (b) pays for a few weeks of medical treatment and wage-loss benefits before stating that you suffered only a lumbar sprain and that the need for the fusion is unrelated to the work accident. I see these patterns constantly. Fortunately, the insurer does not get the final say; the Workers’ Compensation Commission does.

If you can prove that you suffered a compensable injury that aggravated, accelerated, or exacerbated your pre-existing condition, you can receive temporary total disability benefits for the time missed from work recovering and a lifetime medical award for all reasonable and necessary treatment related to the injury that worsened your pre-existing condition.

A note: The one place the prior condition can limit you is disability, not compensability. If you had permanent restrictions before the accident, and your post-accident restrictions are the same, the insurer will argue that any new loss of earning capacity comes from the pre-existing condition. This argument goes to wage-loss benefits, not covered medical treatment. You can overcome this argument if your new restrictions are more limiting than the old ones.

Aggravation vs. exacerbation: why the word matters

Outside of medicine and workers’ comp, the terms “aggravation” and “exacerbation” are synonyms; dictionaries define each with the other. But inside a workers’ comp case, they mean different things, and the insurer knows which usually costs it more.

The American Medical Association (AMA) Guides, which many orthopedic and neurosurgical practices are familiar with, distinguish an “aggravation” from an “exacerbation” by how long the worsening lasts. An aggravation is a permanent worsening of a pre-existing condition: symptoms, findings, or impairment increase and never return to baseline. An exacerbation is a temporary worsening of a pre-existing condition: symptoms, disability, or impairment increase following the work injury, then return to where they were before it.

Both aggravation and exacerbation of pre-existing conditions are compensable in Virginia. The difference is how long the insurer will have to pay. An exacerbation is covered for as long as the flare lasts: the treatment needed and wage loss you have during it. An aggravation should be covered indefinitely, because you will never return to baseline.

This difference between how the medical field treats an aggravation and an exacerbation is why the IME report in cases involving pre-existing conditions often reads “the claimant suffered no more than a temporary exacerbation of pre-existing degenerative disc disease, which resolved within a few months.” The IME doctor agrees that you were hurt, but picks a date the insurer should not have to pay after.

Your treating physician’s records are the main answer to that report. If your symptoms, clinical findings (objective and subjective), imaging, and restrictions changed after the accident and never returned to what they were before, you have an aggravation, and your doctor should use that word. Neither medicine nor the Commission sets a deadline for when a flare becomes permanent worsening, but in my experience, a doctor who sees no recovery after about three months of conservative treatment (physical therapy and non-invasive pain management) will usually agree that you have an aggravation rather than an exacerbation.

Two examples show the thin line between an aggravation and an exacerbation. A warehouse associate with an old high-school ankle injury from football and occasional soreness has a box land on the ankle at work. He has intense pain and takes one week off, then the ankle is back to the same occasional soreness as before. This is likely an exacerbation. The insurer owes a few days of wage loss benefits (subject to the seven-day waiting period) and the medical care needed to return to baseline, but nothing after. By contrast, the nurse above, whose back went from a full-duty release to a fusion recommendation, had an aggravation.

Behind closed doors, the adjuster and the insurance defense attorney likely value the two differently, and they will be more responsive to a settlement demand on a file where the treating doctor has clearly stated the employee’s condition is aggravated – permanently worsened – than on one where the only word in the record is “flare.”

Psychiatric pre-existing conditions

The takes-you-as-it-finds-you rule is not limited to bones, discs, and other physical injuries. If you have received treatment for depression, anxiety, or PTSD in the past or were treating for it at the time of the accident and a compensable physical injury makes it worse, the worsening is a compensable consequence of the physical injury. The Commission has awarded benefits to claimants with serious psychiatric histories on that basis.

The proof you need is the same as for a back or shoulder described above: you should ask the psychiatrist or psychologist to say in writing that they have knowledge of or have reviewed your prior records and that the injury changed the condition, not just that you have the condition. I cover the cases, the three routes to proving a psychiatric claim, and how the insurer uses your treatment history on the workers’ comp page for PTSD.

How the insurance carrier builds a pre-existing condition defense

When I evaluated these claims for employers and insurers, I investigated the potential for a pre-existing condition defense in the first few weeks, often before the claimant had a lawyer. Usually the adjuster had already done it.

During the recorded statement, the adjuster would ask the injured employee about prior injuries, prior claims, prior treatment for the same body parts injured in the work accident, and prior car crashes. Then the adjuster would check the employee’s answers against an index bureau (such as ISO ClaimSearch) that shows every prior insurance claim the employee has made. Next, the adjuster would ask the employee to sign a broad medical records release, request the documents, and look for statements about the same body part. If the employee did not sign the authorization, the adjuster may refuse to pay benefits voluntarily.

If the insurer finds that you have received care for the same body part in the past, your claim will likely go one of two ways. You may receive a denial letter citing your “pre-existing condition” as the basis, with the insurer hoping you give up on the claim. A denial is more likely when the doctor seeing you for the work accident remains silent on causation and seems unaware of your pre-existing condition.

The second path usually occurs when the treating doctor knows of the pre-existing condition and writes a clear aggravation opinion. I see this most often when an injured worker returns to the same doctor who performed the prior surgery.

If you have a causation statement, the adjuster may schedule an independent medical examination (IME) under Virginia Code Section 65.2-607. The doctor performing the IME is hand-picked by the carrier and almost always finds that the injured employee suffered no more than a temporary exacerbation and that any ongoing disability or need for medical treatment is related to the pre-existing condition. The IME report will serve as the centerpiece of the insurer’s defense.

How to overcome a pre-existing condition defense in workers’ comp

Bad facts in litigation are one thing; nearly every case has them. But surprises are a different story. They can sink your case.

Here are several ways to increase the likelihood of obtaining workers’ comp for a pre-existing condition in Virginia.

Don’t hide previous injuries or medical conditions from your attorney

I tell the injured employees I represent to tell me about all their pre-existing conditions, prior injuries, and past workers’ comp or personal injury claims. Once I have this information, I can decide what pre-existing conditions to ignore because they won’t hurt you at the workers’ comp hearing, and which to develop evidence around to put you in the best position possible to win or negotiate a fair workers’ comp settlement amount.

You should assume that the insurer will find out if you have received treatment for the injured body part before or have filed a past workers’ comp claim. Chances are it already knows. So tell your attorney about all of it:

Congenital conditions you were born with
Traumatic events where you suffered an injury requiring immediate medical attention
Motor vehicle accidents where you sought limited medical attention or were not hurt at all
Sports injuries
Medical conditions for which you have sought treatment, even one time, other than common illnesses such as the flu, a cold, or a sinus infection
Injuries or pain for which you have sought acupuncture, chiropractic treatment, or physical therapy

And go one step further. Tell your attorney the names of the medical providers who cared for you. These records are where you can win the case: a full-duty release, a significant gap in treatment, a normal exam before the workplace accident, or a change on imaging after it.

Explain the law to your doctor, and ask them to complete a questionnaire or an Attending Physician’s Report

Not every doctor understands how workers’ compensation works in Virginia. Some may assume that the law does not cover a pre-existing condition. I know I’ve spoken to several doctors over the years who were unaware that an aggravation or acceleration of the condition was covered.

In cases where the doctor has not explicitly addressed causation in an office visit note or narrative report, I write to them and explain when workers’ comp covers pre-existing conditions, with case cites. Then, if the doctor agrees with our position, I ask them to complete a questionnaire that addresses all the elements the injured employee must prove.

Testifying when you have a prior condition

Most defense attorneys will take your deposition before the hearing takes place. A deposition is a meeting where the defense attorney asks you questions and you answer under oath. At the hearing, a Deputy Commissioner decides the case; there is no jury.

I focus on these four things when trying to prove that a compensable work injury worsened a pre-existing condition:

Your ability to work before the accident. Full-duty work for months or years before the accident is the single strongest fact on disability. If you were on restrictions already, say so; the case then turns on how the new restrictions differ from the old ones (see above), and hiding the old ones costs you credibility on everything else.
Your activity outside work before the accident. Running, lifting, yard work, playing with your kids: concrete things you did before and can’t do now. Although these hobbies and activities do not directly impact your work restrictions, they provide the Deputy Commissioner with a sense of how your condition has changed since the work injury.
How the accident happened, in detail. A specific mechanism (the patient’s weight shifted, you twisted and felt a pop) explains why an asymptomatic degenerative back condition became a back needing surgery. “Lifting all day” does not.
What changed. Pain that was intermittent and is now constant. Pain that stayed in the back and now runs down a leg. Medication you took occasionally and now take daily. Each is an aggravation in plain terms, and each is something the treating doctor can put in the record and the Deputy Commissioner can rely on when ruling in your favor.

The insurer’s other defenses run through the same file. If the denial letter cites something other than the prior condition, see the common defenses to a Virginia workers’ comp claim, and check the filing deadline while the causation fight is going on; the two-year clock does not stop for a denial.

Raise the pre-existing condition first, before the insurer attacks your claim with it

Though it may seem counterintuitive during litigation, you should never minimize, hide, or avoid talking about your pre-existing physical problems at your deposition or hearing. I usually bring the prior condition up first, on direct, so you explain and distinguish it before the defense attorney gets to it. A Deputy Commissioner who catches you minimizing a prior injury – or worse, lying about it – may discount everything else you say, and the medical opinion you need may be thrown out if the doctor wasn’t told about the prior treatment either.

The rest of the work is with the doctor: making sure the treating physician has the prior imaging and prior records, and asking the causation question in the words the Commission looks for.