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Pre Existing Condition

Massachusetts Police Injury Attorneys
Legal Article - Pre-existing Condition


A police officer who is injured on duty can make a valuable claim against a negligent third party, despite the fact the body part was injured in the past or may have been operated on in the past. During foot chases of suspects many officers injure knees, weakened by prior injuries and surgeries. Others re-injure backs and shoulders during the physical apprehension and restraint of a difficult suspect. Some officers have dealt with lower back pain and received treatment off and on over the years, only to have it aggravated by a recent collision while operating a cruiser. All of these injured officers have valuable claims which they can make against the wrongdoer from the new incident. These claims can be made to compensate the injured officer for losses over and above the monies they may receive in Chapter 41 injury on duty benefits. Such losses include lost overtime and detail pay, pain and suffering, and scarring.

Examples of officers injured on duty in Massachusetts whom we successfully represented include: an officer who required surgery for a knee after chasing a suspect through a mall, despite that the officer suffered prior knee injuries; an officer who injured his back in a cruiser accident, even though he was already under the care of a neurosurgeon for his problematic back; an officer who ruptured an Achilles tendon chasing a suspect, when the officer already suffered from a strained Achilles tendon; and an officer who developed the symptoms of multiple sclerosis, which had been dormant, prior to his fall on a wet slippery floor.

The law protecting citizens in Massachusetts which provides for the compensation of conditions which are aggravated does not differentiate between employment categories. The law applies with equal vigor to police officers injured on duty, as it would to any other employee injured at work. Ever since the seminal case of Wallace v. Ludwig 292 Mass 251 (1935), the law in Massachusetts has been that a negligent actor is liable for the aggravation of pre-existing conditions, regardless of how bad the condition was in the past or was at the time of the new incident. All that is required is that the condition is exacerbated or made worse by the new incident.

The case of Higgins v. Delta Elevator Service Corp. 45 Mass App 643, 649 (1998) is an illustration. In that case the Court upheld an instruction by the Court which confirmed the exacerbation doctrine traced to the 1935 seminal case of Wallace v. Ludwig 292 Mass 251, 252-3 (1935). Cited with approval in a footnote in the Higgins case is the doctrine which controls a defendant’s liability for the exacerbation of an injured police officer’s pre-existing condition:

"...where an injury arising from a cause which entails liability on the defendant combines with a preexisting or a subsequently acquired disease to bring about a greater harm to the plaintiff than would have resulted from the injury alone, the defendant may be liable for all the consequences. If the injury causes or contributes to cause the development of a preexisting disease, the person liable for the injury is liable also for the resulting aggravation. The wrongdoer may be held responsible for the harmful results of the combined effects of his wrongful act and the disease.." [emphasis supplied] Wallace v. Ludwig 292 Mass at 256.
In Massachusetts, it is well established the Defendant is liable for all the damages sustained by a civil Plaintiff even if the Plaintiff was “more susceptible to the particular form of injury” and even if the injuries would have been less severe if the trauma was inflicted on some other person. Webber v. Old Colony St. Ry. Co., 210 Mass. 432, 442 (1912). A common law school example is where a defendant accidentally cuts a person who is a hemophiliac and that person subsequently bleeds to death from the cut. The defendant is responsible for that person’s death, even if another person without this rare condition would not have died from the cut.

The Defendant is liable even if his wrongful conduct and a pre-existing condition, or a condition to which the injured police officer is disposed, combine to produce a new disease or injury. The injured officer is also entitled to recover for a new disease or injury which he becomes more susceptible to or subsequently acquires as a result of the injuries caused by the Defendant's negligence, even if he suffers greater harm than would have resulted from the initial injury alone. See Wallace v. Ludwig, 292 Mass. 251, 198 N.E. 159 (1935); Varelakis v. Etterman, 4 Mass. App. 841, 354 N.E.2d 886 (1976); Pierce v. Nawn, 5 Mass. App. 812, 361 N.E.2d 415 (1977).

Do Not Miss Out. Assert Your Statutory Right To Compensation

All injury claims made by injured officers are valuable. At a minimum there is a valuable claim to be made for the pain and suffering that may last weeks, months and at times years. Valuable compensation may be available for scarring, lost overtime and detail pay when the officer has to leave work for some period of time, or pass up overtime and details until the injury improves.

For many officers who return to work quickly, it takes months and sometimes years for the pain to completely resolve. Injured backs, necks and knees are often aggravated by long hours of sitting in the cruiser or standing on details. This work prolongs the time it takes to fully recover. Many officers never fully recover from their injuries.

An injured officer should always consider seeking a free consultation to determine his or her right, the benefits, and the probability of making a successful claim. I am always available by telephone, email or a personal meeting. Once I evaluate the case and the officer’s chances of success, the decision whether to go forward then rests with the officer. The decision when to return to work rests, as it should, with the officer and his doctor.

As with all claims for an officer's injuries-on-duty, there are no guarantees. Many police injury cases involve sophisticated legal issues, problems of proof, technical insurance policy coverage disputes and issues that arise under Massachusetts General Laws c. 41, §100 and §111F. When we work on these cases, we work on a contingent fee basis. That means the injured officer pays nothing up front and he only need pay for legal services and expenses if we successfully collect money on the claim. We typically will receive one-third of the money collected. In the off chance we are unable to collect money for the injured officer; the officer will owe nothing for our legal services.

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