Thursday, February 19, 2009

Aggravation of related injuries are (usually) compensable.

The following question often comes up in many of my injury cases: "I did something that aggravated my underlying injury and now need more treatment. Will this be covered as related to my original injury?"

The answer is "yes," so long as the activity that caused the subsequent exacerbation 1) was reasonably foreseeable, and 2) was a result of a weakened condition created by the original injury. Examples of foreseeable activities include lifting, bending, walking, etc. Examples of non-foreseeable (and threfore non-related) activities include a subsequent car collision, battery, etc.

The following is taken from my recent brief on the issue:

The case of Ferrante v. August, 248 Or 16 (1967), which was cited with approval in Wallace v. Allstate Ins. Co., 344 Or 314, 320-21 (2008), is directly on point. In Ferrante, the plaintiff had injured her back in an automobile accident as a result of the defendant's negligence. Ferrante v. August, 248 Or 16, 17 (1967). Several months later, as her back was improving, she “felt a very sharp pain in her back as she was getting out of her chair.” Id. at 18. The plaintiff's doctor testified that the injury had weakened the plaintiff's back and that the later injury she experienced on getting out of the chair was a foreseeable consequence of her weakened back and thus the earlier accident. Id.

On that evidence, the Oregon Supreme Court held that the plaintiff could recover both for the injury that she originally suffered as a result of the accident and also for the later back sprain. Id. at 22-23. The court reasoned that, given the doctor's testimony, the jury reasonably could find that “but for the original injury the [later] back sprain * * * would not have occurred and that the latter injury was the natural and probable consequence of the former.” Id. at 22. The court also referenced with approval the Restatement (Second) of Torts § 460 (1965), which provides:

If the negligent actor is liable for an injury which impairs the physical condition of another's body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other's condition not been impaired, and which is a normal consequence of such impairment.

Id., at FN 7.

Similarly, Uniform Civil Jury Instruction 20.07, provides:

If you find the defendant was negligent and that such negligence caused injury to the plaintiff, the defendant would also be liable for any additional injury caused by the subsequent conduct of another person or entity, even if such conduct was negligent or wrongful, as long as the subsequent conduct and risk of additional injury were reasonably foreseeable.

We at Dwyer Williams Potter, Attorneys feel that this is a good rule. Boiled down to the nut, it provides protection for a worsening of the underlying injuries while performing normal acts that would not have caused pain had the original injury never occurred. At the same time, it offers protection to the person who caused the original injury, in that only exacerbating activities that are reasonably foreseeable are included in the rule, thus striking a balance for both sides.

- Tim Williams