Auto Insurance Claims: Car Accident Settlement, value of injury claim


Question
QUESTION: I was in a car accident 11 months ago due to no fault of my own.  I was hit by a tow truck on the highway and the driver of the truck was given a citation at the scence for unsafe lane change after his front tire blew out.  I hired an attorney.  I went to the emergency room the next morning when my elbow and chest began to swell.  I then went to physical therapy. I began to have back spasms.  I told my doctor and he sent me for an MRI. The MRI showed a L3 L4 disc bulge.  Don't know if the bulge was there before the accident because I never had back pain before the accident. My doctor sent me to a ortho specialist.  The ortho specialist said I needed injections and possibly surgery in the future if it does not get better. I am anxioius about injections and surgery and have been treating it conservatively.  To date, my medical bills are $10,000. Lost Wages are $6100 and future medical estimates are $12,000.  My attorney made a demand for over $100,000.  The insurance companies first offer was $14,000.  Of that $14,000, the insurance company only honored $7,000 of medical expenses and $2,400 of my lost wages.  My attorney sent a followup letter to the adjuster stating the offer is not reasonable and that he takes issue especially for not honoring varifiable lost wages. He also said that we want to work on a reasonable settlement before we initiate litigation and made a new demand for $85,000.  My attorney told me that the $14,000 initial offer was probably in response to his initial high demand.  I am wondering what my claim is really worth. I am thinking anywhere from $25,000 to $45,000.  I don't expect the insurance company to raise their offer much and I don't know if it will be to my benefit to litigate, or accept the absolute final offer the insurance company will end up making.

ANSWER: Mr. Blackwell,

   I am sorry for the delay, I have been popular today.  You have some very valid questions and concerns.  Your attorney should be able to give you some insight on venue tendencies which may make a difference in the value of your claim.  If you are in a conservative venue, then it is likely that the triers of fact will view your medical treatment as unnecessary.  It is normally not a great thing to continue with therapeutic treatment if the condition is not improving within 6 weeks.  The insurance company will surely have a specialist on hand to refute any opinion of your specialists.  Unless you have a severe issue with your back and solid evidence that the damage is due directly to the accident, you will likely be forced to settle or will end up receiving a jury award that is generally about 1.5 times your reasonable, necessary, and properly charged medical bills.  There are what they call "hard medicals" which are what actual medical doctors do, and chiropractic or physical therapy charges (unless a hospital is conducting the therapy) are negotiable.  

    If you have $10K in medical, I would bet that $3K or more of it could be argued, so $7K times 3 would be $21K.  I would be surprised if you got more than 21K for a soft tissue style injury where the only real evidence of injury is your testimony that you are in pain.

    I hope this helps!

---------- FOLLOW-UP ----------

QUESTION: Thank you for the insights, but I have a follow-up to some of your answers. " I would be surprised if you got more than 21K for a soft tissue style injury where the only real evidence of injury is your testimony that you are in pain." I do have an MRI that can be varified and shows a disc bulge. Would this constitute real evidence other than my testimony. I do not have any history of back injury and have no medical records to show a pre-existing back injury.  Plus, what about my varified lost wages?  I was off work on the orders of an M.D. and my lost wages were $6,100. Would it be reasonable to be awarded those as well, making my total settlement expectation around 27K?


ANSWER: When was the MRI conducted.  Almost every doctor and chiropractor that are not on an attorney's referral list will advise that a disc bulge from an auto accident will not develop from acute trauma within 90 days of the accident.  If you had an MRI prior to the 90 day mark, it will be evidence of a pre-existing condition.  It is evidence of a disc bulge but not evidence that it occurred due to the accident.

Not having a history of back pain does not mean that you didn't have a disc bulge.  Most people over the age of 30 have multiple disc bulges upon close examination, normally in the lower back and due to "wear and tear".  

If an MD advised you to be off work, then those costs should be recoverable upon proof of your income.  Your last statement would be accurate as to the $27K.  I am sorry I left out about the lost wages on the previous response.  Also, understand I am playing devil's advocate to show you what you are up against.  Sometimes a good attorney (or legal assistant who is normally the negotiating party) can get a quick settlement over what is expected.

The point is that injuries can be questioned.  Doctor's disagree and people have to be willing to settle.

---------- FOLLOW-UP ----------

QUESTION: When I went to the emergency room initially, my back did not hurt. It was my elbow and left rib cage that were swollen.  This was on September 28, 2009.  I did not feel pain in my back until a month in therapy. AS the months went on, my back got worse.  I had the MRI taken in December right before Christmas, so it was about three taken about 3 months after the accident. I really appreciate you showing me what I am up against.  I told my attorney that my biggest concern is making my back well and that I would rather have further treatment on my back. He said I have to be careful because it might show I am trying to raise the claim. I am not sure what to do.  I would be happy with my medical being paid, my lost wages being paid and a some money for at least injections on my back. What if I were to go ahead and get the injections as the ortho specialist prescribed?  Will I be stuck with the cost, or will I be able to add the cost to my existing claim before it is settled.  My back is tricky.  Somedays it is manageable and somedays it flares up and I have to lay flat on my back for about 30 minutes to relax it.  I never experienced this before.  It's like if I move slighty a certain way, it spasms without even lifting anything. All I know is that it may have been there before, but it never caused me pain like this until after the accident.  I know the insurance company will claim my back pain has nothing to do with the accident because that is what the adjuster is supposed to say. I just want to do the right thing. I do not want to litigate, but I have heard that the only way to get a reasonable offer from an insurance company is after you litigate, then they wait until right before the court date to settle.  Anyway, sorry for rambling on.  Your insights has helped a lot. Keep them coming.

Answer
None of this is legal advice.  I am not an attorney.  

I think you have it figured out as far as the insurance company's tactic.  Your attorney is right, generally they (insurance) will wait until the risk is highest and then settle to avoid the gamble of a jury.  

There is a gamble for you, too.  The question posed by insurance companies that causes the most problems when there is a jury trial is whether or not you acted reasonably in seeking the treatment you have sought.  A really important part of your case is how credible and reasonable the medical professionals that can testify as to your medical condition are.  They need to opine on the possible causes of it and the best and most mitigating treatment.  Not to patronize, but to be sure I am clear, "mitigating treatment" means the one that is most likely to prevent the need for further treatment (and damages). Ongoing injections could be the mitigating treatment, or it could be surgery or pain medicine.  

You may have seen me pose this question to others, but it still strikes true. . . .If you knew from the onset that there would be no insurance available for payment for the treatment of your injury, would you have taken the same course of action?

The right thing to do is to get yourself as healed as possible according to good medical advice.  I must also say that I am not saying all doctors referred by attorneys are not credible, they just seem to not pass the "smell test" if one knows an attorney sent you to them.  

There are differing opinions on what type of treatment is needed for injuries and illnesses.  Take cancer, for example...what is the best treatment?  It is up for debate, just like your case.  You are the most important part of your case.  If you come across sincere and reasonable on the witness stand, you have a better chance.  If you come across as "I'm just doing what the doctor says", I don't think you'll fair well.  

You have to be able to articulately explain what treatment is working for you and then you have to go with that treatment.  Those treatments that provide no benefit. . . quit them.  

I hope this helps you think through this a little better.  It is just difficult to judge the value of your case without meeting you and without having all of the data in front of me.  Soft tissue injuries can surprise even the most experienced adjuster, attorney, or doctor.  As a final thought, make sure your attorney is working for you and not for an easy settlement.  Have you met your attorney in person, and are they diligently arguing your case and keeping you in the loop?  I'm just putting that out there.  It seems you are getting good info from your attorney.

JP