Non-Subscriber Defense Argument: Pre-Existing Condition

Under the Texas Labor Code, employers have the option to opt in or out of workers' compensation coverage. If they choose to opt out of workers' compensation coverage, they are considered "non-subscribers."

When an employer is a non-subscriber, an employee must sue the employer and prove damages in order to recover any losses the employee may have suffered as a result of a workplace injury because non-subscribers are not legally obligated to compensate an injured worker, unless a jury says they have to.

Just like in any other injury lawsuit, when an injured worker sues their employer, the employer is allowed to mount a defense against the lawsuit. However, the defense arguments they are allowed to use are somewhat limited by law. Nevertheless, one powerful defense argument that is often used by non-subscriber employers is known as the Pre-Existing Injury Defense.

In this article, Dallas attorney Michael Grossman explains how this defense could be used by an employer in a work injury lawsuit and how it could affect your case.

We encourage you to read more about the defenses employers are allowed to use under Texas law.

Questions answered on this page:

• What is a pre-existing injury?
• When can an employer use the Pre-Existing Injury Defense?
• How can a lawyer help me in a work injury case if my employer claims my injury was pre-existing?

Non-Subscriber Employer Defense Overview

There are eight common defenses in Texas law that allow non-subscribing employers to defend themselves in a work injury lawsuit. These defenses are:

• Sole Proximate Cause
• Employee Intoxication
• Deliberately Self-Inflicted Injury
• Known Hazard
• Employee Signed a Post Injury Waiver
• Not Within Course and Scope of Employment
• Job Routine
• Pre-Existing Injury

How an Employer Will Use the "Pre-Existing Injury" Defense

It goes without saying that after a work injury, the injured worker will be spending a lot of time in the doctor's office receiving treatment for the injuries sustained in the accident. The cost of this treatment is usually a significant portion of Texas non-subscriber work injury lawsuit. After all, it is only fair that if someone is injured on the job through their employer's negligence, the employer should bear the financial burden for making the worker whole.

Since a worker will be seeking to be compensated for their medical bills, as well as any permanent incapacitation that results from a work injury, a patient's medical records become crucial for both the plaintiff and the defense. One way that employer's will attempt to avoid paying compensation for a worker's injuries is by claiming that the injury existed before the accident.

There are two goals of this defense. In the best case scenario for the employer, a jury will believe that the injury existed before the accident and in those cases that would mean that an employer would not be liable for the costs associated with the injury. After all, non-subscriber work injury cases are not about getting money for people who torn a knee ligament out playing pick-up basketball on the weekend.

Even in instances where it is only suggested that a pre-existing injury only contributed to the worker's work injury, the mere suggestion of a prior injury can significantly lower the amount of compensation that a jury is inclined to aware an injured worker. This is not supposed to happen as Texas has what is known as the "thin skull rule." This states that just because someone is more prone to an injury, it does not lessen the value of their case simply because their "thin skull" means that any injuries they suffer would necessarily be more costly than a head injury suffered by a person with a "thick skull."

More simply, if a worker blew out his knee while playing soccer in college, then a decade later, after the injury had completely healed, they injured the same knee on a construction site, their employer is almost certainly going to argue that a pre-existing injury led to the injury. While this is absolutely absurd in the case of a knee ligament, which typically takes 12-18 months to completely heal, it still can impact a jury, even when it is clear that the knee would have been blown out by the forces in the accident, regardless of whether it had been torn previously.

Whether an employer is using the Pre-Existing Injury Defense to get out of paying damages completely, or just in an effort to bias the jury against full compensation, it is a tactic that an experienced accident attorney will be prepared for and ready to rebut.

Common Scenarios and Rebuttals

Below are examples of the pre-existing injury argument and what the right legal team's answer would be:

• Example 1 Scenario - A worker (John) was injured while on-the-clock. He suffered some serious knee injuries and had to have surgery to repair them. Most importantly, his employer was a non-subscriber. So, John had surgery, intending to sue his employer for compensation for his medical expenses. However, his employer's lawyer acquired some of John's old medical records, finding out that he played high school football and injured both of his knees then too. His employer will attempt to say then that because he injured his knees previously, that its a pre-existing injury and not really the company's fault.
• Example 1 Response - With the right legal representation, the rebuttal to the employer's argument of a pre-existing injury will cater to the jury's fair-minded point of view. First, John's lawyer should have a credible doctor review all the medical documentation for John's case. This won't necessarily be the doctor who performed John's surgery, but a completely objective physician. A licensed doctor can provide expert testimony to the court. Put simply, we know that to show a jury the clear facts, you've got to have a credible expert witness. That doctor can provide insight on John's medical records, clearly showing these particular knee injuries were caused by his current job and were not pre-existing.
• Example 2 Scenario - Let's say John was actually killed on the job, leaving his wife, Julia, a widow. She now has been dealing with severe emotional depression, overwhelmed by the loss of her spouse and best friend. Julia attempts to sue John's employer for his death, seeking compensation for emotional distress among other things. His employer's lawyer--just as he could look up John's records--can look up Julia's health records. The lawyer may find that she was in therapy once before, and so they'll argue that she's always had emotional distress even before she lost her husband, and so "why would she need compensation for this now?" The employer's lawyer is arguing that Julia doesn't deserve emotional damages for losing her husband.
• Example 2 Response - Julia's lawyer will be looking over all of her health records too. And just like the defendant's lawyer, Julia's legal representation may find that time she spent in therapy. But, her lawyer will also do much more in-depth research, finding that she went to therapy because she actually lost her sister to cancer. Thus, making her previous time in therapy credible and disproves the defendant's theory that she's always under emotional distress. A good legal team will do not just the bare minimum of research, but all the research that needs to be done. They'll leave no stone un-turned, making sure that any possible holes in the claim are justified and make sense to the fair-minded jury.

The essence of any successful rebuttal is preparation. While most injured workers might feel than an accident that happened in high school has no relevance to their non-subscriber work injury claim, it is important to make sure your attorney knows about all of your previous medical injuries. With proper preparation, experienced work injury attorneys will make sure that any relevant medical records are reviewed by a qualified expert, who can then convey to the jury in plain language that an injury that occurred years earlier would have had plenty of time to heal and in no way would impact a work-injury sustained so long after the fact.

Additionally, accident reconstructionists can be employed to illustrate that the forces involved in an accident would have resulted in a severe injury, regardless of an injury that occurred years before. The truth is, that even if there are injuries from years earlier, they are not the end of the world and being up-front and honest with your legal representation is the best chance to combat this defense argument.

In summary, we know it's a somewhat underhanded tactic, but it still happens. Employers will use the pre-existing injury excuse to pay you as little compensation as possible, especially if the damages you deserve are much higher than that.

Your Attorney Should Know How to Combat the Pre-Existing Injury Argument

Not all lawyers can say they've encountered this maneuver before. However, in our 25 years and the hundreds of work injury cases we've won, we can definitely say we've seen employers attempt to use this. It's not a fair argument, to be sure, but it's still their attempt to grasp at straws. Don't let the jurors be swayed by this unfair attack on your character by saying you're making up your current work injury. Call us at (855)326-0000 now for a free consultation.

Related Articles for Further Reading:

• Overview of Texas Law for Non-Subscribing Employers
• Recoverable Compensation For Injured Employees In a Work Injury Lawsuit
• What Employer Defenses Are Not Allowed In Work Injury Lawsuits?