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Workers' Compensation FAQ

Preexisting Conditions

Many people assume that, as with health insurance coverage, workers' compensation programs do not provide coverage for injuries or illnesses involving preexisting conditions. However, if it can be shown that the new work-related injury was a significant factor in the cause of the current disability or need for treatment, then workers' compensation would probably apply even in those cases in which the preexisting conditions were not work related.

General Rule

If an incident at work aggravates a preexisting condition in such a way that the employee cannot work, the entire disability is considered work related and the worker is entitled to benefits based on the level of disability. The preexisting condition does not have to be work related, but the aggravation or exacerbation of the condition must be work related.

Basically, the general rule is: "employers must take their employees 'as is.'"

Normal Daily Activity Exception

As in workers' compensation rules in general, the injury or illness must be work related. Thus, a preexisting non-work-related injury exacerbated by a subsequent non-work-related injury would not result in benefits paid. Also, even if the preexisting condition is work related, if the subsequent injury is not, but can be attributed to normal daily activities, then the injury would not be compensable. That is, the injury to the worker must be the result of a risk particular to the employment of the worker and must be a risk greater than that to which the general public is exposed. For example, a worker who was leaving work and going to his car in the employer's parking lot stepped from a curb and twisted his ankle. In that case the risk in stepping from a curb and twisting an ankle was not any greater than the risk of the general public and the work would not be eligible for workers' compensation benefits.

In another twisted ankle case, the worker had a degenerative condition that caused a deterioration of his foot. He was originally denied benefits under the "normal daily activity" exception for an injury sustained while stepping from his employer's truck into a pothole because it was possible that normal daily activity would have exacerbated the injury. The original decision was overturned by that state's supreme court, which ruled that the normal daily activity exception could not come into play once it had been established that a work-related activity, in this case, stepping from the employer's truck into a pothole, was a causative factor in the injury.

Each state has its own workers' compensation laws and each states' courts are presented with cases whose facts differ, but these cases exemplify the application of the normal daily activity rule.

History of Preexisting Condition Rules

Under current federal law (The Americans with Disabilities Act/ADA) employers are not allowed to discriminate against employees, current or prospective, on the basis of disability. They are also required to make "reasonable accommodations" for employees who become disabled during the course of employment. They are allowed, of course, to require that an individual be able to perform the activities required by the job with reasonable accommodations. Therefore, if the employee is mentally and physically capable of doing the job with reasonable accommodations, despite any preexisting condition, the employer should consider the job candidate on an equal basis with all other candidates.

Even before the ADA was adopted in the 1990's, however, many states encouraged employers to hire the disabled. In the post-World War II era, most states even passed legislation funding Subsequent Injury Funds (SIFs) which provide some relief to employers from the potentially high costs of a greater disability being caused by a subsequent injury to an already partially disabled person.

SIFs

Since the ADA passed, many states have done away with their SIFs. However, about 20 states still have SIFs, which have the potential to help cut employer costs in those cases where the subsequent injuries occurred at their workplace. Each state that has an SIF has different mechanisms that trigger the funds. Generally, the funds can be used to at least partially cover the costs of injuries that exacerbate a preexisting condition. SIFs are generally funded by a fee paid by employers based on their claims history from the prior year. In states where they exist, SIFs can be a major element in cost containment for employers. In the cases where SIFs can be tapped into they will provide either direct payment to claimants who have suffered subsequent injuries or will make reimbursement to the employer or the insurer for the benefits that are attributable to the subsequent injury.

Conclusion

Generally, if a work injury either temporarily worsens or permanently exacerbates a preexisting condition, even a non-work-related condition, the worker is entitled to workers' compensation benefits. Because subsequent injuries can be more costly than initial injuries, the workers' compensation programs of many states use a Subsequent Injury Fund to encourage employment of disabled workers and to help employers contain the resulting potential higher costs.

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