Injured workers over the age of 35 are more likely to have some reference to degeneration of the injured part of the body in their medical records. This is because aging naturally causes degeneration. Consider degenerative disc disease. That’s actually a normal part of aging. However, when those issues occur in medical reports, insurers start to think that they can minimize the damages owed on the claim, because they are preexisting conditions. In many situations, it can be very difficult to get a claim approved when the injury aggravates a preexisting condition. The doctors approved by the insurer will justify that if a surgery would have been necessary someday anyway, then the insurer should not have to pay for it and will tell the patient that it is their own responsibility to pay for the surgery. What they may not understand is that the statutory and case laws in Nevada dictate that workers’ compensation insurance should cover these types of injury claims.
The insurer has the burden of proof when it comes to demonstrating that the injury was not a significant cause of the condition of the patient (NRS 616C.175). If the employee had no complaints about his or her job before the injury occurred and did not need surgery at the time that the injury occurred, then there is no reason for the preexisting condition to stop the employee from receiving the coverage and care that he or she deserves. Insurance companies still act as though it is the employees burden of proof to demonstrate that the work injury was a primary cause of his or her present condition.
The situation gets a little more confusing when an employee has a prior work injury and a new employer. If this is the case, then it must be determined whether the injury is a recurrence from the past workers’ compensation case or if it is an aggravation that qualifies as a new injury. Do you reopen the old claim or start a new claim with the current employer? This also affects the average monthly wage, which may vary between employers. For more information on how to differentiate between recurrences and aggravations, see the following:
- Grover Dils Medical Center v. Mendito, 112 P.3d1093 (Nev. 2005).
- Mikohn Gaming v. Espinosa, 137 P.3d 1150 (Nev. 2006).
Every case is different and the medical opinions and reports will vary. When your claim is accepted, you’ll have to have an impairment evaluation. You have to think about apportionment of the award which subtracts from your compensation for the preexisting condition. When your doctor is asked about causation of the injury, the conversation should be in line with NRS 616C.175 language and intent. To learn more about apportionment, contact a Nevada workers’ compensation attorney.