Many Vermonters who have experienced a work injury wonder whether a “preexisting condition” will prevent them from receiving Vermont workers comp benefits, even though their new work injury worsened their symptoms. As with many questions you can ask a lawyer, the best answer is “it depends.”  Fortunately, however, the mere fact that you may have a preexisting condition will not bar you from pursuing a claim for workers’ compensation benefits.  Instead, the Vermont Department of Labor will want to know whether your work has made that preexisting condition worse.

Under Vermont law, if you have a preexisting condition and then suffer a work injury which is similar in nature (such as shoulder pain followed by a torn rotator cuff at work), your work injury will still be deemed “compensable” — and you will be entitled to Vermont workers’ compensation benefits — if your work aggravated or accelerated your preexisting condition.  According to the Department of Labor’s written decisions, if something at work caused, contributed to, or combined with your preexisting condition to make it worse, then your employer’s insurance carrier is responsible for paying you workers comp benefits.  In other words, if you had a wrist condition which inevitably would have led to carpal tunnel syndrome, but your work caused you to develop carpal tunnel syndrome sooner than you otherwise would have, the carpal tunnel syndrome is a work injury and any treatment you need for that carpal tunnel syndrome — including surgery — must be paid for by the insurance company.  Along those same lines, if you have a degenerative knee condition but don’t need surgery yet, and then you aggravate your knee condition at work and need a total knee replacement much sooner, the total knee replacement would be compensable.

It also doesn’t matter whether your preexisting condition happened outside of work, while you were working for your current employer, or while you were working for a previous employer.  When the preexisting condition is from something outside of work, the question is simply whether your current work made it worse.  When your preexisting condition is the result of a prior work injury, and a different employer and/or insurance company was involved with the first work injury, both insurance companies will usually try to avoid paying for your current condition by pointing the finger at the other one.  In the Vermont workers’ compensation world, this is called an “aggravation-recurrence” dispute.  The previous employer/insurance company will claim you suffered a new injury or “aggravation” of your prior injury, meaning you had fully recovered and your current condition is totally unrelated to your prior injury.  In contrast, the new employer or insurance company will argue you never fully recovered from your previous injury and your current condition is a “recurrence” of that injury.  As you can imagine, both insurance companies have the same goal — for the Department of Labor to order the other insurance company to pay you benefits.

Fortunately, when there’s an aggravation-recurrence dispute between insurers, the Department of Labor typically orders one of them to pay you Vermont workers comp benefits while the insurance companies sort out which is truly responsible for your current injury.  Instead of requiring a formal hearing at the Department of Labor to answer this question, the two insurance companies will be ordered to participate in binding arbitration (with the loser reimbursing the winner for any benefits it has paid).   That way, you aren’t forced to go without TTD, medical, or other workers’ compensation  benefits simply because the insurance companies don’t agree what caused your current condition.

To summarize, just because you have a preexisting condition and experience a work injury to the same body part does not mean you can’t receive workers’ compensation for that injury.  If your work caused, contributed to, or combined with a preexisting condition to make it worse, it should be covered — even if the preexisting condition was from a prior work injury.