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  1. #1
    Join Date
    Nov 2008
    Posts
    3

    Default Is an Insurance Carrier Liable to Fix a Dormity That Prevents Proper Repair of Foot

    I injured my ankle with one company and I had surgery to repair a torn tendon. I subsequently started working for a new company and a few weeks in I severely rolled my repaired ankle and ended up re-tearing the same tendon and 2/3 of the lateral ligaments.

    I was sent to an IME and he stated in his report that I have two deformities in my foot that need to be fixed via osteotomy in order to properly repair the damage. The surgery was done after a lot of arguing back in fourth as to whether an insurance company is liable for a pre-existing deformity?

    My argument is that I did not know I had a deformity in my feet, and the initial injury I believe had nothing to do with my condition. I was carrying something heavy at work when I stepped into a small pot hole. I do believe that once I did have the first surgery, the deformity was the cause of the major subsequent damage since it just gave out on me.

    Isn't the foundation of workers compensation that it is no fault and the employer finds their employees as they get them?

    Does anybody know if a workers compensation insurance company is responsible to repair a pre-existing condition in order to repair a separate body part? I can't seem to find a lot of case law that fits my situation. It just seems like most cases are to the exact same body part.

  2. #2
    Join Date
    Oct 1971
    Posts
    5,136

    Default Re: Is an Insurance Carrier Liable to Fix a Dormity That Prevents Proper Repair of Fo

    n5yntx
    Does anybody know if a workers compensation insurance company is responsible to repair a pre-existing condition in order to repair a separate body part?
    Only if your "work activities contributed to aggravation of a pre-existing condition to cause an injury."
    In other words, as long as the injury being treated was caused during the course of employment, a pre- existing condition should be covered.
    Be care of how you word this, you want to establish that this is an aggravation of a pre-existing condition, don't give them a defense by separating the work related injury from your deformity.
    See the below case..

    Supreme Court of Arizona,En Banc.
    Sharron MARTINEZ, Petitioner, v. The INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Ideal Weight Loss Centers aka Quick Weight Loss Center, Respondent Employer, ITT Hartford, Respondent Carrier.
    No. CV-97-0201-PR.
    Decided: July 17, 1998
    ¶ 1 This case involves a “mixed risk” workers' compensation claim that is predicated on claimant's gradual injury.   Two issues are presented:
    1.  May a court of appeals' opinion which this court depublished because, although it agreed with the result, it did not agree with the analysis, constitute the law of the case in subsequent proceedings?
    2. What is the proper measure of legal causation in a gradual injury “mixed risk” claim?
    We have jurisdiction pursuant to Ariz. Const. art.   VI, § 5(3), and A.R.S. § 12-120.24.

    CONCLUSION
    ¶ 25 We hold that the “actual risk” test defined in Samaritan applies to cases such as this in which the work activity contributes to gradual aggravation of a pre-existing condition to cause an injury.
    http://caselaw.findlaw.com/az-suprem...t/1289465.html

    I would advise you to retain a lawyer if the carrier gives you problems, this is too complicated of an issue for a lay person to handle.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

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