Pre-existing conditions -- images, categories and analysis

Workers' Compensation

1/11/2012
Charles L. Powell
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Pre-existing conditions -- images, categories and analysis

A crack in a teacup is the image used by a health care provider to describe a pre-existing condition. Often the term “pre-existing condition" means different things to different people, so picture is helpful.

A cracked teacup, says the provider, is still able to hold tea. It does not leak. It does not cease to function. It's useful. You can still drink tea whether that crack is there or not.

However, if something new happens and that crack is aggravated or made worse by some incident, like if it's dropped a second time or banged a second time, then something has permanently changed. The teacup now has more than a crack, and has a leak. A leaking cup can no longer function. It is no longer useful to anyone who would employ it to drink tea. It is disabled.

“Pre-existing” conditions can also be described by another image, the image of the straw which breaks the camel’s back. The camel can do a lot of work, whether it has an excellent back or whether it has a bad back. It can still carry luggage. It can still carry its owner. It can still do work and come to work day after day. But the introduction of one last straw can make all the difference between continuing to work and breaking down. That's the straw that is responsible for causing the camel’s back to break.

A worker can come to perform his or her job day in and day out, and that worker may have "pre-existing" conditions or impairments. But there may come a time when a new injury, occurring at the workplace, causes that pre-existing condition to become different, so much that the worker can no longer continue to carry out his or her job duties due to the new injury. That is considered, under the law, as an "aggravation" of a "pre-existing" condition. The law says that if the work activity produced a new crack that caused the teacup to leak, or a new straw caused the camel’s back to break, then work is responsible and Worker's Compensation insurance must cover the disability and pay for the medical expense another benefits to help respond to the worker’s new injury.

Department of Labor opinions tend to categorize “pre-existing” conditions into 3 kinds. First, there is “recurrence.” Second, there is “aggravation.” Third there is “flare up.” A fourth category deals with a particular kind of pre-existing condition known as “progressively degenerative.”

Here below are excerpts from a 2011 decision in the case of Badger vs BWP Distributors and Maynard’s, Op. No. 05-11WC (March 25, 2011), a decision by the Vermont Department of Labor which discusses these pre-existing condition categories:

"In workers' compensation cases involving successive injuries during different employments, the first employer remains liable for the full extent of benefits if the second injury is solely a “recurrence” of the first injury — that is, if the second accident does not causally contribute to the claimant's disability. Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997). If, however, the second incident aggravates, accelerates or combines with a pre-existing impairment or injury to produce a disability greater than would have resulted from the second injury alone, then in that case the second incident is an “aggravation, “ and the second employer becomes solely responsible for the entire disability at that point. Id. at 627-628.

"Beyond either a recurrence or an aggravation, there is a third category as well — the “flare-up.” In a flare-up, a distinct new injury worsens a pre-existing condition, but only temporarily, following which the condition returns to its baseline. Cehic v. Mack Molding, Inc., 2006 VT 12 Par.10. The finding of a distinct new injury precludes a conclusion that it is a recurrence. Id. The finding of a return to baseline precludes a conclusion of aggravation “because the injury, once resolved, did not ‘causally contribute’ to any increased disability.” Id, quoting Pacher, supra."

For pre-existing conditions which naturally progress, such as arthritis and osteoarthritis, the Vermont Department of Labor has the following standard: “Where a claimant's pre-existing condition is a progressively degenerative disease, the test for determining work-related causation is whether, “due to a work injury or the work environment ‘the disability came upon the claimant earlier than otherwise would have occurred.”’ Stannard v Stannard Co., Inc, 175 VT 549, 552 (2003), citing Jackson v True Temper, 151 Vt 592, 596 (1989). While exacerbated symptoms alone may not be enough to establish causation, nevertheless “the acceleration rule must be looked at in relation to the overall condition of the body, particularly as it relates to [a claimant's] ability to work and function.” Id., citing with approval City of Burlington v. Davis, 160 VT. 183, 186 (1993) (Dooley, J., dissenting)."

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