Preexisting Conditions

Many people commonly assume that workers’ compensation programs do not provide coverage for injuries or illnesses involving preexisting conditions. For example, if a worker had some periodic chiropractic maintenance treatment for their low back, they feel that worker’s compensation might not be responsible if they hurt their back worse at work. However, if it can be shown that the new work-related injury was a significant factor in aggravating that existing condition and requires the need for treatment, then workers’ compensation should apply even in those cases in which the preexisting conditions were not work-related.

General Rule

Most of us have some preexisting conditions–especially in our joints or spine (in reality, our bodies are going downhill a bit as we age!) In most situations, though, workers–despite any preexisting conditions–are able to work full duty and perform all the physical job duties required. In Wisconsin, the worker’s compensation law recognizes a worker’s pre-injury condition. Indeed, the general rule is: “Employers must take their employees ‘as-is.'”

The law indicates that if a work injury aggravates, accelerates, and precipitates a preexisting condition beyond normal progression, 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.  For example, even if a worker may have needed a knee replacement at some point in their life (due to a degenerative condition), if a knee injury at work speeds up the need for the knee replacement surgery, it is generally considered work-related.

Normal Daily Activity Exception / Hazard of Employment

As in workers’ compensation rules in general, the injury or illness must be work-related. Thus, a preexisting nonwork-related injury exacerbated by a subsequent nonwork-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. In some states, 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 worker would not be eligible for workers’ compensation benefits.

However, under Wisconsin law, if the injury is based on a “hazard of employment”, the injury is likely compensable.  Injuries arising out of risks or conditions personal to the worker do not arise out of employment unless the employment places the employee in a position of increasing the dangerous effects of an injury.  For example, some hazards that can render an otherwise purely personal injury compensable are elevators, stairs (and by extension, ladders, scaffolds and heights), machines or sharp edges and corners, driving a motor vehicle, and water.

History Of Preexisting Condition Rules

Under 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 1990s, however, many states encouraged employers to hire people with disabilities. 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 workplaces. Each state that has SIFs 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 nonwork-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 SIFs to encourage employment of disabled workers and to help employers contain the resulting potential higher costs.