QuestionI was rear-ended on the highway seven months ago. I went to the ER then a chiropractor for three months without much improvement then my primary Dr sent me to a specialist who ordered Physical therapy to relieve the spasms in my neck, shoulders and shoulder blades. He also said that from looking at the x-rays the chiropractor sent, I have degenerative disk disease which was asymptomatic (i.e. showing NO symptoms)but now that I have sustained a trauma to the area I will probably always have these painful flair-ups. When I go from hot to cold or when it rains my neck hurts so bad I can't stand it unless I lay down to take the weight of my head off it. I have flair-ups 4-5 times a week, sometimes everyday when the weather is bad. Two months after I finished therapy he ordered more to try and strengthen the muscles around the two disks in my neck. He re-xrayed and I have 1/4 loss of one disk and 1/3 of the other. I'm only 39 and he said that surgery isn't an option he'd want at my age and with my allergies to metals.
I have a few questions.
My personnel health insurance put a lein on the settlement, which they will give their total that needs to be paid before I settle. My total medical is about $12,000. They informed me that any medical for two years following the settlement will not be covered by them and to be sure I settle for enough to cover any expenses. I want to settle without a lawyer but I'm not sure what would be considered reasonable medical for two years of possible expenses? Also since the degenerative disk disease was preexisting before the accident wouldn't they have to cover expenses on it during the two years?
It could've been years before I had any pain due to the DDD what would be a reasonable settlement pain and suffering?
AnswerDear Viki,
You have had a serious light-up of a preexisting condition that was asymptomatic, and as such, you are no where near ready to settle your claim. First, you have to get to the point where you are more healed, and where your doctors can tell you what your prognosis is and how much your future care will cost.
There are a lot of things you need to do before you need to worry about the value of your claim. Maybe your tortfeasor had minimum limits, and your claim will then be an obvious policy limits case.
Because your claim will soon approach one year, you do need to check out the statute of limitations in your state. Thus, the VERY FIRST THING I WANT FOR YOU TO DO IS TO KNOW WHEN YOUR STATUTE OF LIMITATIONS EXPIRES. If you do not take care of this issue, you can lose your entire claim, which is going to make you really unhappy! Go to my site and review this free Directory of Legal Information on Statute of Limitations for Personal Injury Insurance Claims for Motor Vehicle Accidents http://www.settlementcentral.com/page0452.htm
If you are going to have a problem running up against the statute of limitations, you have my permission to use my site contact format to send me an e-mail. Mention who you are and how we met so I will remember you. I will then try to get you some immediate help from an attorney if it is required. It will not cost you or the attorney anything inasmuch as we do that as a favor for people who are injured.
Now, on to our outline of homework for you, Viki:
• The first is to get your health restored.
• The second is to get your future medical care handled.
• The third is to learn about the personal injury insurance claims process. And, in that topic, to avoid settling your personal injury claim too soon.
• The fourth is to learn about how preexisting conditions are handled and when you get an insurance settlement for a condition that has been “lit up” by trauma.
• The fifth is to explore for policy limits possibilities.
• The sixth is to access your medical records to see whether or not you need narrative report assistance.
• The seventh is to learn about “holding open” your claim for future medicals; this is hard to do
• The eighth, and last is to learn how to communicate with the insurance adjuster.
That is a lot of work, but you are up to it, and if you want to do a lot of this yourself, you will have to put in some time. So let’s get started.
As to the first item mentioned above, you MUST get your treatments continued, and when those do not help, you MUST get your doctor to send you to a pain clinic if indicated by your pains. I would open up your own auto insurance PIP (first party medical) claim and get my medicals paid for that way.
Do not let your treatments lapse if you run out of insurance. Consider asking the doctor whether she would take an irrevocable lien on your settlement to secure payment of her fees.
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As for #2, your continued medical care, I would check with your state insurance commissioner http://www.settlementcentral.com/links.php
Ask about BOTH the health care and your PIP for continued care. It seems to me that once care is started for PIP, then it can continue for the natural and expected follow-up, even beyond the calendar expiration of benefits. This would be in the case of a surgery, for example, wherein you would still get PIP benefits for the necessary follow-up, even if it were beyond the calendar expiration of your benefits.
Since you may not have surgery, that example may not fit, but you could ask about continuing a course of treatment with cortisone shots or radio-wave pain therapy once you have started it.
Be advised that you will not get continued care dollars—either from your own insurers or the tortfeasor’s insurance as a part of the settlement UNLESS AND UNTIL YOU PROVE THAT THEY ARE REASONABLE AND NECESSARY AS A RESULT OF THE ACCIDENT.
Payment for FUTURE MEDICAL COSTS requires a FIRM COMMITMENT from your doctor. It seems to me that you do not yet have the commitment or figures from your doctors regarding the necessity for any future medical care. Don’t worry about that now, but make sure to let your doctors know that they NEED TO MAKE A STATEMENT THAT BEYOND A MEDICAL PROBABILITY (i.e. that it is only “more likely than not”) you will need continued care as follows. And then they will spell out the type of care and the costs.
A comment by one of your doctors to the effect that you "would likely still need to see him in the future on our own" just IS NOT SUFFICIENT TO GET THE JOB DONE.
I would look at the typed records of your doctors. Or it is OK if he has readable handwritten notes. You are looking for words, a narrative—not some scratched code of some kind. And you are looking for some kind of statement that shows he made A FIRM COMMITMENT therein to the need for further treatment.
Without that, there will be no award for further treatment. Damages cannot be awarded on the basis of speculation. Your doctor has to state that it is his opinion that you are "MORE LIKELY THAN NOT" going to need additional care in the future. And it would be best do some analysis and discussion of your medical situation in order to sustain his opinion in the eyes of the insurance adjuster who will be writing the check in this case.
For example, in order to lay the foundation for his opinion, he will have to discuss both the findings of his concluding examination and the types of activities any particular part of your life that is impacted by the injuries and may thus require future medical care.
Just for your information, orthopedists DO NOT WANT TO GET INVOLVED IN LAWSUITS. So don't expect any orthopedist (if that is your doctor) to go to the mat for you and argue for future damages. TIP: but one way to put him on the spot and to face up to his duty to you is to ask him in a written letter (not email) to explain the future problems that he has seen with this kind of injury in the past. Thus, we use a request for a narrative letter (see below).
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As for #3, learning about the personal injury insurance settlement process, here is some reading for you.
Learn how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS. Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
Outline of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0190.htm
Detailed listing of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0207.htm
By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
Now, for the last part of this topic: DO NOT SETTLE YOUR PERSONAL INJURY INSURANCE CLAIM TOO SOON!
You have asked me for tips on valuing your damages from a SERIOUS injury that happened ONLY seven months ago. The reason I am making a big deal of your injuries is because your condition is serious, and may have life-long impacts on your enjoyment of life. Plus, in seven months you really have not put your body through the rigors of daily life as you used to live it.
Any disc problem, or even "deep" soft tissue injury can be lit up months after ending treatment. Wait until you have gone through a year, with all if its physical activities.
There may be a dull ache at night following some physical activity or pain the next morning. DO NOT LET LITTLE PAINS GO UNATTENDED SINCE YOU DO NOT KNOW WHETHER THEY WILL CONTINUE OR GO AWAY. We all hope and believe that such little pains will disappear soon. But on the other hand, we have no way of knowing since this is the way serious soft tissue injuries can behave.
So, when this happens, even if a couple months or more post-treatment, do not hesitate to SEE A DOCTOR AND ATTRIBUTE THE PAIN TO THE ACCIDENT WITHOUT EQUIVOCATION. It is NEVER TOO LATE TO REPORT PERSONAL INJURIES FROM A CAR ACCIDENT http://www.settlementcentral.com/page0104.htm
According to Our http://www.SettlementCentral.Com Members, Chiropractors are Most Effective in Severe Whiplash and Soft Tissue Car Accident Injuries http://www.settlementcentral.com/page8010.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
"No medicine: no money"; medical costs increase worth of personal injury insurance claims http://www.settlementcentral.com/page0045.htm
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The fourth item or your homework, Viki, is to learn about how preexisting conditions are handled and when you get an insurance settlement for a condition that has been “lit up” by trauma.
Here is the good news for making a claim: you get FULL DAMAGES VALUE for any pain and suffering and medical costs incurred as a result of having an asymptomatic preexisting condition “lit up” by the accident trauma.
The bad news is that you have all of the burden of proof on this. You will have to show all elements of the claim via your past records, but since you have had no prior problems, that should be an easy beginning point to establish. Here is how.
First, you will have to lay out your history of trauma and accidents and prior insurance claims. If there have been some of these, be sure to mention them to both your doctors and to the insurance adjuster. You do not want your doctors making a diagnosis unless they also know about any prior problems, otherwise, their diagnosis is worthless.
The fact you may have had an accident or a prior insurance claim DOES NOT disqualify you for making a claim in the current instance. It all depends upon how long ago the first injury occurred and when you recovered and how much physical activity you have done since that time without suffering any pain.
In your case, either you had no prior injury, or it sounds like it would have been a number of years. And the pre-accident condition has not caused you any problems whatsoever.
Thus, it will be up to your doctors to make the diagnosis that your current condition was caused by traumatic light-up of a preexisting asymptomatic condition. DO NOT LET THEM SKATE OUT ON THIS. Hold them to the line and make them tell that you HAD NO occasions in the past to complain or to treat for your condition. Thus the accident trauma is responsible for your current condition.
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As for # 5, exploring the policy limits possibilities, there are two things to be aware of. First is the possibility that the tortfeasor has minimal limits for your state. Next is how to stifle or compromise your health insurer’s lien for $12,000. That is called a subrogation claim they are making. Read on.
Consider a POLICY LIMITS situation for the tortfeasor, resulting in an Underinsured Motorist Claim (UIM) against your policy.
What if the tortfeasor has coverage of only your state minimum insurance liability policy limits http://www.settlementcentral.com/page8008.htm? Look up the state where the tortfeasor resides to see what the minimum liability insurance policy limits are. It looks like most states require only 25/50. That means that $25,000 is the bodily injury liability for one person in an accident, and $50,000 is bodily injury liability for all people injured in an accident. Thus, if the tortfeasor has just the minimum, then $25,000 would be all that is available to you.
If that were all the insurance that is available, then you likely would be in a policy limits situation if your doctor is predicting future problems with your disc. Take a moment and become familiar with some of the issues in policy limits insurance claims http://www.settlementcentral.com/page0451.htm
NOTE: don't go asking what the limits are until you get into full blown negotiations. We teach our members how and when to demand limits information.
Subrogation relief is an entirely different animal, and your best (and, really, only) shot is if your tortfeasor’s policy limits are so low that you do not even recover your general damages (i.e. your pain and suffering and interference with enjoyment of life award). In that case almost half the states (the “blue” ones mostly—since in the “red” ones the conservatives are in the pocket of the insurance industry) you get to become restored completely, that is “made whole” by full recovery of your general damages BEFORE your own insurance company gets a dime of their subrogation claim. Thus, your health insurer’s lien would be wiped out in certain circumstances.
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As for #6, narrative reports, you should consider the advantages of using one in this case, where the doctor can write some sentences to bolster her findings and diagnosis and prognosis. I think in your case a narrative report would be especially helpful inasmuch as you will also need a strong statement regarding future medical care.
Make darn sure your doctor does have updated full information in her records, or the adjuster may not give you credit for what you have been through. For example, if you just ask for a narrative letter now, you best go in for another appointment first and document for the doctor all of those nagging signs of soft tissue injuries you are noticing following a full day of sitting at your computer or doing physical activities. Personal Injury Medical Records http://www.settlementcentral.com/page0114.htm
As for the narrative report, it is a written letter that can be prepared by the doctor to summarize her diagnosis, treatment history, closing exam, and prognosis.
Thus, in this case, your doctor can analyze and compare and argue for a light-up of your preexisting condition in ways that she cannot do in her office notes.
Finally, consider asking your doctor for a narrative report to explain in detail the possibilities—AND PROBABILITIES—of future problems.
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As for #7, trying to “hold open” your claim for future medicals, this is hard to do. YOU CANNOT SETTLE NOW AND "HOLD OPEN" TO PAY FOR FUTURE MEDICAL BILLS; and even if you could, why would you want to?
Who cares about just paying for the bills in the future when you have health insurance to cover your expenses? The BIG ITEM IS YOUR GENERAL DAMAGES (pain and suffering, and loss of enjoyment of life). And even if you succeeded in getting the tortfeasor’s insurer to leave the claim "open for medicals", THEY WILL NEVER, EVER LEAVE A CLAIM OPEN FOR FUTURE GENERAL DAMAGES.
Here is the best strategy: get a specialist, NOT YOUR GENERAL PRACTITIONER, to make a FIRM statement of continued problems and then collect your medical specials AND your general damages when you settle the case. By the way, since your settlement will be one general undifferentiated figure, you can pocket the future medicals amount that you included in the demand letter, even if your health insurer has to foot the bill to resume treatments a couple of years later.
The insurance company wants two things: to get rid of you and your claim as fast as possible, and with as little cost as possible. They are NOT INTERESTED in playing financial nursemaid to claimants who choose to settle their claims too soon. Look, Viki, their job is to CLOSE THE FILE. Period.
Maybe this is a good time to take a little detour and learn how and why the insurance industry is the wealthiest in America. They make their BIGGEST money off long term investments, NOT BY selling insurance.
Now each state has laws regarding how much they can invest, versus how much money insurance companies have to leave in ready cash to pay off the existing and anticipated claims for the coming year. This is what is called their "reserves". This ready cash can be in short term investments, but they pay zilch.
So, the goal is to get everything out of reserves as soon as possible. You and your doctor, on the other hand, would be asking them to leave money in reserves on the possibility you might someday have more medical expenses. See, even if it is a contingency, such as the possibility you might have to incur future medical expenses, THEY STILL HAVE TO LEAVE A GOOD FAITH ESTIMATE OF THAT AMOUNT IN short term low-investment-return reserves.
So they are VERY reluctant to leave a claim open for medicals (except in the case of minors), and as I said, they NEVER EVER will allow additional general damages after the claim is settled. Thus, you have to get paid NOW for all the damages the tortfeasor caused, your pain and suffering and medical treatments to date and as your doctor predicts for the future.
I am a little bit worried that if your doctor is not familiar with the insurance claims system
and if she is not a specialist (neurologist or orthopedic surgeon), then her prediction for future problems you might expected will be weak and ineffective.
She may hedge a bit, whereas the ONLY THING INSURANCE WILL PAY ON is a FIRM STATEMENT (preferably by a specialist) that this is what WILL MOST LIKELY HAPPEN, BEYOND A REASONABLE MEDICAL PROBABILITY. (Any doctor familiar with depositions and court testimony knows that the "beyond a reasonable medical probability" phrase simply means that her prediction is "more likely than not" going to come true. That is a pretty low hurdle, but your doctor darn well better include strong language in her prognosis, or you will not get any money for future expected problems.
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7. FINAL TOPIC: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the feedback form on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
