If you’re reading this article, then one of two things is likely true:
1. You have a history of back, neck, shoulder, knee, or ankle problems, maybe even a prior work injury or surgery involving those body parts, and just suffered a new injury on the job.
or
2. You have never had back, neck, or knee pain before but after a workplace accident such as a fall from a ladder or a car crash, you undergo an MRI that shows arthritis or degenerative disc disease. Your doctor tells you that you likely have had this condition for years, and you are surprised.
No matter what situation applies, you may be eligible for many types of workers compensation benefits for arthritis affecting your joints or degenerative disc disease in your spinal cord.
The purpose of this article is to discuss how workers compensation law addresses arthritis, degenerative disc disease, and degenerative joint disease, and what you can do to make sure you get the lifetime medical treatment and cash benefits you are owed for a work injury that causes, exacerbates, or accelerates your degenerative disc disease or arthritis. If your medical records mention arthritis or degenerative disc disease, then there is a high probability that your employer and its workers compensation insurance carrier or third-party administrator (TPA) will deny your claim initially, and that you will be forced to litigate, go through discovery, including interrogatories and depositions, and try and win your case at trial before the Workers Compensation Commission.
Keep reading to learn more. If you have any questions about your case or are looking for a top-rated work injury lawyer, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I represent injured employees throughout Virginia, including those in Richmond, Virginia Beach, Norfolk, Chesapeake, Newport News, Williamsburg, Fredericksburg, Fairfax, Manassas, Roanoke, Harrisonburg, and Bristol, and have negotiated arthritis and degenerative disc disease workers comp settlements for many people and families who have been through what you are dealing with now.
Degenerative disc disease is not a disease, but a condition where natural, age-related wear and tear on your spinal discs cause pain, instability, anatomic changes, and a loss of function in your back or neck. The term degenerative refers to the process of your disc weakening and deteriorating over time.
The term spondylosis is also used to describe degenerative disc disease of the back and neck and spinal osteoarthritis.
You have 23 spinal discs: 6 in your neck (cervical spine), 12 in your mid-back (thoracic spine), and 5 in your low back (lumbar spine). A disc sits between each of the vertebrae in the spine. When healthy and well-hydrated, the disc provides cushioning and flexibility. It can absorb the shocks of everyday life.
Degenerative disc disease results from age, overuse, or a traumatic injury.
Regular wear and tear and injuries can cause your disc to lose water as the outer part of the disc tears or weakens. Disc desiccation is the medical term for a dehydrated spinal disc.
When your disc loses water, it loses flexibility and collapses gradually. This narrows the gap in the spinal column, which may place extra pressure on the outer part of the disc, resulting in cracks, tears, and ruptures. When this happens, it is possible for some of the inner part of your disc to bulge or protrude through the tears, resulting in a herniated disc. It is also possible that your body will react to the narrowed gap by creating bone spurs, a condition called spinal stenosis. These bone spurs may grow into your spinal cord and put pressure on your nerve roots, causing pain.
If the vertebrae above and below the injured disc start to collapse on each other, then the facet joints at the back of your spine may shift, affecting their function. This is why facet joint problems are considered a form of degenerative disc disease.
Your healthcare providers will diagnose degenerative disc disease using either an X-Ray, which can show a loss of disc height between the vertebrae and bone spurs, or an MRI, which can show whether there is spinal stenosis or impingement of the nerves.
Medically, degenerative disc disease appears most often in the neck at the C5-C6 and C6-C7 levels, where there is the most movement of the cervical spine, and most often in the low back the L4-L5 and L5-S1 levels, where there is the most movement of the lumbar spine. Degenerative changes can occur in any intervertebral disc though.
Usually, treatment for degenerative disc disease starts off conservative, including rest, therapy, and light exercise. If conservative treatment fails, then surgery may be recommended.
Arthritis is the medical term given to a family of more than 100 musculoskeletal disorders and conditions that affect the joints.
The most common type of arthritis is osteoarthritis, a form of arthritis where one or more joints undergo degenerative changes. These degenerative changes include:
Usually, osteoarthritis begins with pain that is aggravated after exercise or use of the joint. This can cause you to avoid using the joint, which contributes to stiffness. As osteoarthritis progresses, you may have crepitus (cracking), reduced joint motion, and swelling. Toward the end stages of the disease, you may have deformity and dislocation of the joint.
Treatment for osteoarthritis focuses on reducing pain, slowing degeneration, and improving joint mobility. Your doctor may prescribe anti-inflammatories, muscle relaxers, and intraarticular steroid injections. If this conservative treatment fails, then you may undergo an arthroscopy, osteotomy, laminectomy, fusion, or total joint replacement.
Degenerative disc disease of the cervical, thoracic, lumbar, or sacral spine is very common. As is osteoarthritis of one or more joints.
These conditions affect millions of Americans of both genders and all ages, races, and occupations. In fact, an orthopedic surgeon once told me that everyone has arthritis or degenerative disc disease of some type by the time they reach the age of 40, especially if the person had a prior injury, works in a physically demanding job, or was an athlete when they were younger.
Yes. If you suffered a compensable injury on the job, then your employer and its insurance carrier are responsible for the payment of wage loss and medical benefits related to post-traumatic arthritis or degenerative disc disease that develops.
Post-traumatic arthritis is a medical condition caused by acute joint trauma. It can result in osteoarthritis.
If you suffer a joint injury, such as a torn rotator cuff or a wrist or hand injury resulting in de Quervain’s syndrome, then make sure you discuss the possibility of developing post-traumatic arthritis and osteoarthritis before settling your workers comp case.
Insurance carriers and their defense attorneys often focus on pre-existing degenerative disc disease when defending against negligence or workers comp claims. But as I discuss below, you should not shy away from preexisting conditions when presenting your case. I recommend embracing them and presenting them first, then using your testimony and the medical evidence to show why the workplace accident or motor vehicle crash on the job worsened your condition.
There are two alternate arguments you can make when trying to win a claim or get a workers comp settlement for degenerative disc disease or arthritis.
As we discussed earlier, you have many 23 spinal discs. This means it is possible to have degenerative disc disease at some levels of your spine but not others.
Depending on the medical evidence in your case and the location that you have pain and other symptoms, you may be able to argue that your recent workplace trauma is unrelated to your degenerative disc disease and that any evidence of degenerative disc disease should be excluded under Federal Rule of Evidence 403 or its state counterpart, Virginia Rule of Evidence 2:403. These evidentiary rules state that a court may exclude relevant evidence such as the existence of pre-existing degenerative disc disease if its probative value is substantially outweighed by the danger of unfair prejudice or of confusing or misleading the judge or jury.
Workers comp follows the “eggshell plaintiff doctrine.” This means your employer must take you as it hired you. If you are hurt on the job, then your employer must provide workers compensation benefits even though the consequences of your work injuries are more serious than they would otherwise have been because of your pre-existing physical condition.
If you can prove that your work injury aggravated, exacerbated, worsened, accelerated, or flared up your preexisting arthritis, even just a little bit, then your employer must provide medical treatment and pay wage loss benefits if you miss time from work because of resulting disability.
Your employer is also responsible for medical care, including arthroscopic surgeries, joint replacements, laminectomies, and fusions, if you can prove that your work injury caused you to need the treatment or surgery sooner – even though surgery had been discussed before you were hurt on the job. For example, I’ve represented clients whose doctors told them years ago that they would need a total joint replacement or spinal fusion in the future but gave no exact date. Then my clients suffered a new work injury, which caused them to need the surgery within a few months of the accident. The Commission found the employer and its insurance carrier responsible for payment of those surgeries.
Despite the law on the aggravation of arthritis or degenerative disc disease, don’t be surprised if your employer and its workers comp insurance carrier fight your claim once arthritis or DDD is diagnosed. They will argue that your current pain and work restrictions are related to your preexisting condition and baseline medical condition, not the aggravation caused by your work injury.
No. Repetitive motion injuries – or the exacerbation and worsening of arthritis and degenerative disc disease they cause – are not covered under workers comp in Virginia. This is unusual, however, Most states cover repetitive motion/cumulative trauma injuries.
Those of you whose job requires frequent lifting, pushing, pulling, carrying, climbing, bending, squatting, stooping, kneeling, or typing, such as construction workers, roofers, electricians, assembly line workers, and administrative assistants, will have to prove that a specific event or task worsened your arthritis or degenerative disc disease.
When trying to get a top-dollar workers comp settlement for arthritis or degenerative disc disease, I recommend developing evidence that addresses:
Even though you may have had arthritis, degenerative disc disease, or even a history of multiple work accidents when you were hurt, you can still win your claim and get a settlement if you provide evidence showing you were capable of performing your regular job at the time you were hurt.
In every workers comp trial involving arthritis or degenerative disc disease, I get testimony from my client that they were able to do their job without difficulty for a significant period before the accident, and that they did not require time off from work because of their degenerative disc disease or arthritis for a significant period before the accident.
This testimony shows that the work accident aggravated, flared, or accelerated your condition to the point you can no longer do your pre-injury job and, therefore, you are entitled to workers compensation benefits.
It is possible to have no symptoms of degenerative disc disease or osteoarthritis. I have represented many employees, including associates at Amazon fulfillment centers, warehouse workers at Walmart and Target distribution centers, nurses, long-haul truckers, and UPS delivery drivers, who did not know they had DDD, arthritis, or degenerative joint disease until they suffered an injury on the job or were hurt in a work-related car crash.
Credible testimony that you had no history of prior back, knee, shoulder, or neck problems will help you win your case and negotiate a better arthritis or degenerative disc disease settlement.
You can still get workers comp for arthritis or degenerative disc disease if the conditions were symptomatic before your work injury, but you will need to explain how the injury changed things.
For example, let’s say you suffered a back injury at work five years ago, in a slip and fall accident, and were diagnosed with degenerative disc disease. Since then you have experienced intermittent pain, a flare-up every three to four months.
Now, because of your work injury, you experience constant pain that radiates down your right leg, something you have never experienced before. This new symptom and increase in the frequency of pain can help you win your workers comp claim for degenerative disc disease.
If you have treated for arthritis or degenerative disc disease in the past but did not require medical attention such as pain management in the months leading up to the accident, make sure you present testimony about this.
The greater the length of time between your last medical appointment and the work injury, the more likely it is that you can prove that your injury caused, contributed to, or aggravated your arthritis or degenerative disc disease.
Before and after evidence can help you win your claim or negotiate a settlement for degenerative disc disease or arthritis.
If you had diagnostic image testing before the workplace accident, such as an MRI, CT scan, or X-Ray, you can use your post-injury diagnostic image testing to show that the injury aggravated or caused additional structural damage.
For example, if your pre-injury MRI shows degenerative disc disease or arthritis, but your post-injury MRI shows you suffered a herniated disc on the job or a torn ACL that wasn’t there before, you are more likely to win your claim or recover a greater amount through settlement.
You can – and should – offer testimony about all these issues at your workers compensation hearing. But don’t stop there.
Many workers comp claims, especially those involving arthritis and degenerative disc disease, come down to medical evidence. That is why it is so important that the doctor you choose from the panel of physicians offered by your employer and its workers compensation insurance carrier is claimant-friendly on issues of causation and disability from work, and willing to provide additional reports and answers to checklist-type questionnaires to help you prove your claim.
Medical records from your office visits, as well as operative reports, are good. But they often ignore the issues of causation, which are critical to your case.
You can address this problem by discussing the important issues with your authorized treating physician and, if the doctor agrees with you, ask him or her to write a narrative report or answer a questionnaire addressing each of the issues. Then file the report with the Workers Compensation Commission.
In many cases, the treating physician’s answer to my letter and questionnaire has been the piece of evidence that won the case.
Many factors go into determining the fair value of arthritis or degenerative disc disease workers compensation settlements. Consider the evidence and the following issues before settling:
Don’t let the claim adjuster or defense attorney intimidate you with a long list of defenses to your workers comp claim. It is possible to win your claim even if you have arthritis, degenerative disc disease, or a history of prior surgeries such as a joint replacement or spinal fusion surgery for the body part you hurt on the job recently. For example:
In Lewis v. Balfour Beatty Construction Group, JCN VA00001118605 (March 28, 2017), I represented an employee who suffered a back injury at work. The insurance carrier denied the claim, alleging that my client’s disability and need for medical care was related to his pre-existing degenerative disc disease and arthritis. My client had undergone three prior back surgeries before the occupational accident. By focusing on his ability to return to work in construction after the third surgery, until he re-injured his back while moving two buckets of drywall mud, I was able to help him win the case.
In Sechrest v. Winner Services Inc. & Liberty Mutual Insurance Corp, JCN VA00000951213 (May 27, 2016), the employer and insurance carrier filed to stop wage loss benefits based on the treating physician’s light duty release. In support of their defense, the employer and insurer introduced evidence about my client’s prior back and neck injuries and arthritis and degenerative disc disease. I was able to defeat the application to suspend benefits, which allowed my client to continue receiving weekly temporary total disability (TTD) payments, by working with his physicians and focusing on the new symptoms and limitations caused by the recent work injury.
For more information on average workers comp settlement amounts for degenerative disc disease and arthritis, check out my case results.
Many attorneys, especially personal injury lawyers who handle negligence and tort claims mostly, refuse to take a case when there is a prior injury or diagnosis of arthritis or degenerative disc disease. They fear that the deputy commissioner deciding the case or your treating physician will be unable to apportion what damage and symptoms are related to the pre-existing condition and what damage, symptoms, and restrictions were caused by the new work injury. Fortunately, there are ways to satisfy your burden of proof and to show that the new injury made things worse. You need not show apportionment unless you’re seeking permanent partial disability (PPD) benefits.
For help with your claim, or with negotiating a fair arthritis or degenerative disc disease settlement, call me today: (804) 251-1620 or (757) 810-5614. Not only will I explain your options at each step of the workers comp claims process but I’ll also help you decide whether it makes sense to apply for Social Security Disability based on the effect of the work-related injury on your arthritis and degenerative disc disease and your age, education, and past work experience. If so, I can serve as your disability lawyer. You can receive both SSDI and workers comp at the same time.
Don’t wait. Act quickly. The workers comp statute of limitations is 2 years from the date of your accident but the sooner you act the quicker you’ll receive the medical attention and income replacement you need.