How Attorneys Can Help People with Brain Injury Dispute "Pre-Existing Conditions"

What Are an Attorney's Obligations When a Client Has Had a Brain Injury?

I was in an auto accident more than two years ago and before the accident I had been diagnosed with mild neuropathy in my feet.

As a result of the crash, I sustained a mild traumatic brain injury and since then my neuropathy has gotten much worse.

My injury occurred while on the job delivering tools and my workers comp. insurance carrier is saying that my neuropathy is “non compensable” because I had it before the accident. I maintain that the nerve damage from the mTBI made the neuropathy worse. I have trouble going down stairs, my feet feel like they are frozen but they are warm to the touch, and I have no feeling in them like they are asleep. I need to know if this is possible due to a brain injury. Any help you can give me is greatly appreciated.


In order to establish that an individual’s pre-existing condition was exacerbated or made worse as a result of an accident, expert medical testimony is necessary. This is often referred to as aggravation of a pre-existing condition. In other instances, it may be demonstrated that an individual was more susceptible to the development of a particular condition than the average individual, which may also become the basis for an award of compensation.

A medical expert needs to review the claimant’s entire medical history, including a complete review of his or her medical records that pre-date the first injury, and diagnosis and treatment after the first accident along with any diagnosis and treatment of the current condition from which the individual suffers. The medical expert must examine the manner in which the traumatic event took place and how the individual’s medical condition developed, was altered, or made worse as a result of the second accident. The medical expert will also need to review the relevant medical literature to determine if this type of traumatic event could have a negative impact upon the individual’s medical condition and he must further eliminate other causes for the worsening of the condition.

The expert will need to establish the extent of aggravation or exacerbation of the pre-existing condition as well as the impact that it has had upon the individual.

The damages or compensation that can be recovered as a result of an aggravation of a pre-existing condition include the increased medical costs, the increased pain and suffering, and the resultant disabilities that are caused by the condition’s aggravation.

The opinions of the medical expert must be based upon a reasonable degree of medical certainty and will be subject to cross examination by attorneys representing the interests of the other side both as to the qualifications of the expert witness to render the opinion and the basis of the expert’s opinion.


Please remember, we are not able to give medical or legal advice. If you have medical concerns, please consult your doctor. All posted comments are the views and opinions of the poster only.

Posted on BrainLine August 18, 2011. Reviewed March 20, 2018.

About the author: Shana De Caro, Esq.

Shana De Caro, Esq. is partner at De Caro & Kaplen, LLP. Ms. De Caro serves on the board of directors for both the Brain Injury Association of America and the New York Academy of Trial Lawyers. She is first vice president of the American Academy of Brain Injury Attorneys and serves as secretary of the Civil Justice Foundation.

Shana De Caro

Comments (2)

Please remember, we are not able to give medical or legal advice. If you have medical concerns, please consult your doctor. All posted comments are the views and opinions of the poster only.

Do you have any attourney referrals numbers please. What kind of attourney do we need

Dude above with the frozen feet. '98 TBI.. That's happened to me before.