Pre-Existing Conditions and Your Kentucky Injury Claim

Reviewed by Larry Forman, Attorney Almost everyone over 30 has something in their medical history: an old back strain, arthritis in a knee, degenerative changes on an MRI, a prior car accident. Insurance adjusters know that, and a pre-existing condition is one of the most common reasons they give for a low offer. “Your neck was already bad,” they say, “so the crash didn’t really hurt you.”

Kentucky law doesn’t work that way. You can recover for the harm an accident adds to a condition you already had. This guide explains the rule, how insurers use your old records, and what you can do to protect the claim.

What Kentucky law says about a pre-existing condition

Two principles do most of the work. 1. You’re compensated for what the accident “activated or aggravated.” The Kentucky Supreme Court held that an injured person is entitled to a jury instruction saying, in the affirmative, that she “should be compensated for losses causally related to a preexisting condition to the extent, if any, such condition was activated or aggravated by the collision” (Drury v. Spalding, 812 S.W.2d 713 (Ky. 1991)). The defendant doesn’t pay for the condition you already had. It pays for the difference the accident made. 2. The at-fault party takes you as it finds you. The Kentucky Supreme Court has agreed that “the tortfeasor takes the claimant as he finds him” and gets no credit because a prior condition made the person more likely to be hurt, or hurt worse (Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987)). Lawyers sometimes call this the “eggshell plaintiff” rule. A crash that would have caused a stiff neck in a 25-year-old can cause a disc herniation in someone with degenerative discs, and the at-fault driver is responsible for the herniation.

Aggravation, activation and a “new” injury

These cases usually fall into one of three patterns:

What happened	Example	What you can recover
Aggravation	Back pain you managed with occasional ibuprofen becomes constant pain that needs injections	The added pain, treatment and limits
Activation	Degenerative changes that never caused symptoms start causing pain after the crash	Everything caused by the condition becoming symptomatic
A new injury in the same place	A shoulder you hurt years ago, fully healed, is torn in the crash	The new injury, as with anyone else

The Drury rule also applies to Kentucky’s no-fault threshold. In car crash cases, you can only recover pain and suffering if your crash-related medical expenses pass $1,000 or the injury meets another threshold, such as a fracture or permanent injury. The Court said the “activated or aggravated” principle “applies to the no-fault threshold as well as to other instructions on damages.” Treatment for an aggravated condition counts.

How insurers use your medical history

Expect the insurance company to ask for, and try to use, your prior records. Common moves:

• Asking for years of records, sometimes through a blanket HIPAA authorization. You don’t have to sign a blanket release for the other driver’s insurer. Before a lawsuit, records requests should be limited to what’s relevant.
• Pointing to old imaging. “Degenerative disc disease” on a prior MRI becomes the explanation for everything.
• The defense medical exam. In a lawsuit, or under your PIP policy, a doctor chosen by the insurer may say your symptoms are “chronic” or “age-related.” See our guides to the independent medical exam and what to do about a bad IME report.
• Recorded statements and social media, hoping you’ll say you “always had back trouble.” See social media after an accident and other insurance adjuster tactics.

A jury doesn’t have to accept every claimed aggravation. The Kentucky Supreme Court upheld a verdict that paid medical bills but nothing for pain and suffering where the defense showed the plaintiff’s pain was the same before and after the crash (Miller v. Swift, 42 S.W.3d 599 (Ky. 2001)). That’s why the “before and after” evidence below matters so much.

How to protect a claim with a pre-existing condition

1. Tell your doctors about your history. If you hide an old injury and it shows up in the records, it damages your credibility far more than the condition itself.
2. Describe the change. Your chart should say what’s different: new symptoms, more frequent pain, pain in a new place, new limits on work or sleep.
3. Gather the “before” records. Records showing you went months or years without treatment are often the strongest evidence. Here’s how to request your medical records.
4. Get comparison imaging reviewed. A radiologist or treating doctor can compare old and new films for new findings.
5. Line up witnesses. Family, coworkers and friends can describe what you did before the crash and what you can’t do now.
6. Ask your treating doctor the right question. The legal question is whether, within reasonable medical probability, the accident aggravated or activated the condition. Doctors may be asked to say how much of your current condition relates to the crash.
7. Keep treatment consistent. Gaps give the insurer room to blame the old condition.

Common pre-existing conditions in injury claims

• Degenerative disc disease and arthritis of the spine. See our herniated disc and back injury and whiplash pages.
• Prior knee and shoulder injuries, including old tears and surgeries. See knee and shoulder injuries.
• Chronic pain conditions and nerve problems. See CRPS and chronic pain.
• Prior concussions, which can make a new head injury worse
• Anxiety and depression that a traumatic crash makes worse
• Prior accident claims. A past claim doesn’t bar a new one. It does mean the records from that case will be looked at.

How a pre-existing condition affects case value

A pre-existing condition can make a case harder to prove, but it can also make the harm real and lasting. A person whose arthritic knee becomes unstable after a crash may need surgery sooner, or a joint replacement that wouldn’t otherwise have been needed for years. Those future costs belong in the claim. See what a Kentucky injury case is worth and, for serious long-term injuries, our guide to a life care plan.

How Forman & Associates handles these claims

We get the prior records ourselves, so we know the history before the insurer uses it. We work with your treating doctors to explain what changed. We prepare the case for trial, because insurers make their lowest offers when they think a pre-existing condition will scare you into settling. Larry Forman has tried 50+ jury trials and won 95% of them. Learn more about Larry Forman or see our case results (past results don’t guarantee a similar outcome). More guides are in our resource center.

Pre-existing condition FAQs

Can I still file an injury claim if I had a pre-existing condition?

Yes. Kentucky law lets you recover for the extent to which the accident activated or aggravated the condition, plus any new injury.

Will the insurance company find out about my old injury?

Almost certainly, through medical records, prior claims databases or your own testimony. It’s better to disclose it early and explain what changed.

What is the eggshell plaintiff rule in Kentucky?

It means the at-fault party takes you as it finds you. It doesn’t get a discount because a prior condition made you more vulnerable to injury.

Does an aggravated condition count toward Kentucky’s $1,000 no-fault threshold?

Yes. The Kentucky Supreme Court has said the “activated or aggravated” rule applies to the no-fault threshold as well as to damages.

The other driver’s insurer wants me to sign a medical authorization. Should I?

Talk to a lawyer first. A blanket authorization can give the insurer your entire history. Requests should be limited to relevant records.

What if my condition had no symptoms before the crash?

Then the accident may have activated it. Records showing you weren’t treating for it before the crash are important evidence.

Talk to a lawyer about your pre-existing condition

An old injury shouldn’t mean a smaller recovery for a new one. Get a free case evaluation or call (502) 931-6788. No fee unless we win. This page is general information about Kentucky law as of October 2026, not legal advice.