If you are a railroader who has suffered a work injury, the furthest thing from your mind when you sustain an on-the-job injury are past accidents, injuries, or medical conditions.
In most instances, these events or conditions will have nothing to do with your claim. However, your failure to disclose these events or conditions at the appropriate time may impact your ability to receive fair compensation.
The first time the railroad asked you about any past accident, injury, or medical condition was on your employment application. From that point forward, the railroad has required that you document any on-the-job injury on an accident report. If due to a non-job related accident or illness you took off time, this, too, could be documented in your personnel file.
OBLIGATION TO BE HONEST
When you make a claim for injury, your prior medical history has already been compiled to a large extent by the railroad and the claim agent. Under the FELA and your collective bargaining agreement, you have an obligation to be forthright about these events. Most railroads have a code of conduct, which requires honesty in dealing with the employer. Dishonesty can result in you being fired.
The rules of the Court require disclosure of relevant medical information. Dishonesty in the litigation can result in dismissal of your claim. These are the worst scenarios. Other problems short of these can arise.
Let’s take a simple illustration. You began your railroad career when you were 20 years old. Fortunately, you had not had any prior accidents or medical conditions that should have been referenced on your application for employment. Five years into your career you strain your back and lose time. You return to work without restrictions. Ten years later you have an off duty auto accident and sustain an injury to a different part of your back. Once again, you return to work without continuing problems or restrictions. Six years later, you sustain an on-the-job injury to the same part of your back as your first work injury. This time, however, your work injury is significant. It is now uncertain whether you will return to work.
PRIOR INJURIES ON ACCIDENT REPORT
As with all injuries on the job, you will make out your injury report to the railroad. You probably won’t be asked about prior injuries to your back in this document. If you choose to make a statement to the claims agent, he/she will likely ask you about any prior injury. The claims agent will have a file listing your on duty injury history. The claims agent may also know of your auto accident. There is certainly no harm in disclosing that you have had prior injuries from which you have completely recovered.
In other words, there is no penalty for being honest.
Using the same example, you are not fortunate enough to recover from your work injury and you do not return to work. The railroad forces you to file litigation to seek fair compensation. You will now be asked again about any prior accident, injury, or medical condition. These questions will now come in the form of written interrogatories and oral deposition questions. The railroad, the Judge and ultimately a Jury will then evaluate the responses you have provided under oath. Your railroad injury attorney can assist you in determining what information the Court rules require you to disclose. However, you must provide your personal injury lawyer with all the information in order for this process to work.
Once your case is in litigation, the railroad might subpoena your records from your medical insurance carrier. Your complete medical history may then become available. In addition, the railroad might consult the Injuries Index, a list of claimants and their claims compiled by liability insurers. This could reveal any other off duty claims you may have made. The Court will decide the legal issue of whether this information is relevant to your case, after your attorneys make the appropriate arguments. If your attorney finds out for the first time from the railroad about information which you should have supplied, you will now be at a severe disadvantage.
FAILURE TO DISCLOSURE PRIOR INJURIES
Several cases in our office, very good cases against the railroad, have suffered greatly due to the client’s failure to disclose to us information about prior injuries, accidents or medical conditions. If you improperly deny the existence of a prior injury or condition in the same part of your body, your credibility on the damage issue of your case could be severely impaired. If your work injury claim involves an unwitnessed accident, your liability case may also fall due to your lack of credibility. It is difficult to convince a jury that you forgot, after an off duty injury, that you underwent an MRI and your doctor informed you of a herniated disc one year before your railroad injury. It is also difficult to explain to a jury that your prior visits to a chiropractor for back pain are unrelated to your present claim of disability, unless you were the first person to disclose this information.
The legal issues related to relevance and admissibility of evidence can only be addressed by your lawyers after full disclosure by you. Generally speaking, you could have an auto accident in which you do not sustain injury. This is commonly referred to by the insurance industry as the “no bender-fender bender.” You could also have an accident in which you sustain injury to, or a medical condition involving, a totally separate part of your body. Unless this injury or condition affects your work-life / life expectancy, it is not likely to come in evidence. The foregoing may require disclosure, but they may be irrelevant at trial.
RECOVERY FOR AGGRAVATION OF PRE-EXISTING CONDITION
The more complex issue is when you have a prior injury or medical condition involving the same part of your body for which you now claim additional injury or disability. The simple fact that you had a prior accident, injury, or medical condition involving the same part of your body will not defeat your right to recover compensation. The FELA recognizes and allows recovery for the aggravation of a pre-existing condition. This topic will be addressed in next week’s article. However, in order for your attorneys to establish this claim, you must fully advise them of prior injuries or medical conditions to the same part of your body. The failure to disclose this information may impair your ability to recover fair compensation. Give your personal injury lawyer a fighting chance to fight for you by fully disclosing this information to them.