QuestionI am 1 62 yr. old woman who was in a wreck Sept., 05 caused by the other insured. It is with 99% accuracy that he has the minimum insurance of $30,000. My medical bills, which have reached nearly $19,000, are mostly due to tests, the chiropractor, and physical therapy. I have been diagnosed with myofascial pain syndrome which I was told would go away in time. Even though he has enough to cover the medical costs, would I still be able to file a claim on my underinsured since I plan to ask for more than $30,000 for pain and suffering and the fact that I will continue to suffer discomfort? And, also, what would be an appropriate amount to claim? Thank you for your help in my first experience with a wreck.
AnswerInsurance policy limits; Underinsured motorist claim; Myofascial Pain Syndrome (MPS)
Policy limits insurance claims
Insurance settlement for policy limits
Myofascial Pain Syndrome (MPS)
Serious personal injury myofascial pain syndrome
How to describe pain
Discomforting pain, Annoying pain, Nagging pain
5 Easy Steps to Do-it-Yourself Insurance Claim Settlement
How to deal with insurance claims adjusters
Dear Linda,
Your case has some pretty serious potential for long term problems, so I want you to understand both the underinsured motorist (UIM) situation and the antidotal histories of myofascial syndrome clients whose cases I have handled.
First, let's take a moment and become familiar with some of the issues in policy limits insurance claims http://www.settlementcentral.com/page0451.htm
There are some potential traps for the unwary in making a policy limits settlement, so read carefully so at least you know that you have to notify your own company ahead of accepting a policy limits settlement and releasing the tortfeasor.
In direct answer to your question, your demand to the tortfeasor should be as high as you feel justified in making it since that demand letter is likely just going to be recycled and sent to your own insurer. Thus, you would not want to demand only $49,000 from the tortfeasor, with the intention of turning around and demanding $60,000 from your own insurer in your UIM claim.
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As for value, it would be the worst kind of guess to venture anything whatsoever about your claim since there is nowhere near the kind of information one would need to value a claim. Getting involved in valuation is not like going through a drive-in food window where a service can just be produced instantly. It takes time to read the file and the medical record and to interview the claimant to see how she will come across to the jury.
Having said all of that, however, I am pretty sure that if you have already $19,000 in medical costs, and you have a myofascial pain syndrome, with continued pains to this date, you would not be out of the ball park to demand $45,000 in general damages alone.
As for the tortfeasor, if you have a claim that speaks for itself in damages, then why does the adjuster even care how you value the claim? If he can see the value in the medical records and his opinion of you, then he is not interested to know what you believe the value to be, unless, of course, you were to mistakenly UNDERVALUE the claim, in which case he would be acting promptly to accept and pay your demand.
So, I believe you would be justified in making a demand for a total award of at least $67,000. That does not mean you would be awarded that amount, however. It is just your opening salvo.
If there is evidence of a serious myofascial pain that will not go away with time, as the doctor predicted, then you would add to that figure of $67K. Serious myofascial syndrome cases that continue for some time will merit awards in excess of $100K. If you get in that category, it is best to consult an attorney inasmuch as any slip up on your part could have magnified bad consequences for you.
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MYOFASCIAL SYNDROME IS SERIOUS PERSONAL INJURY
Your condition sounds pretty serious: my clients with myofacial pain syndrome had a long-term injury that ABSOLUTELY DID NOT "go away with time". Now, your doctors are in the best position to tell what is happening in your claim, so who am I to second guess their professional opinion?
I am just saying that a diagnosis of true myofascial syndrome for my former clients usually meant a long term struggle with pain that just would not "go away with time". True myofasical syndrome is serious business, and experience shows that it will not just "go away with time", as your doctor told you. I guess that is why I would be leery of predictions that such a potentially serious condition will heal spontaneously over time. Sounds like some doctor who wants to paint a rosy picture, rather than get down and dirty by going out on a limb to fight for you by predicting continued problems.
The former is the easy road out of involvement in a case, and the latter requires a commitment to the patient and her claim that most medical doctors are not willing to make, largely because it involves a commitment of time for consultations with attorneys, depositions, trials, and standing up for and fighting for the rights of the patient. It is just so much easier to avoid the whole process by predicting that the myofascial syndrome will "go away with time".
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BACKGROUND ON MYOFASCIAL PAIN SYNDROME
Maybe you already know this stuff, but here is some general background for you in any event. The first one, following, is from some personal injury attorney's website (cannot recall where I found it)
New pain syndromes. A person who has a strain or minor-impact accident can develop fibromyalgia or myofascial pain syndrome weeks or months later. These two debilitating pain syndromes involve muscle and joint pain, which is triggered by an accident or repetitive stress. Myofascia is the translucent lining that covers the muscle tissue and adheres in layers to form tendons and ligaments. Myofascial Pain Syndrome (MPS) results from kinks in the myofascia, causing muscular pain and damage in the neurotransmitters. A person who suffers from MPS complains of regional pain, has pain or numbness if a "trigger point" is pressed, has a "knot" in a muscle that an examiner can feel, feels tenderness along a "knotted" muscle and experiences restricted range of motion or muscle weakness. Fibromyalgia is pain in at least 11 of 18 "tender points" when subject to light pressure and complaints of widespread pain for at least three months in most areas of the body, including both left and right sides and above and below the waist. A Seattle woman who was diagnosed with fibromyalgia after a minor car accident, settled with the insurance company for over $200,000.
Here are some URL links to explore; some with helpful diagrams and pictures.
http://www.emedicine.com/PMR/topic84.htm
http://www.fenixstopspain.com/myofascial_pain_syndrome.html
http://www.fenixstopspain.com/low_back_pain.html
http://www.fenixstopspain.com/neck_pain_chronic_headaches.html
http://vancouvermassage.ca/articles/mps.php
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"I will continue to suffer DISCOMFORT."
Please, Linda, NEVER, EVER USE THE WORD "DISCOMFORT" to describe anything connected with making a personal injury claim. It is a term used by doctors who are trying to diminish the life of a claim, or who are trying to undermine the claim. It is the adjective just above "MILD", and, as such, when a doctor uses "discomfort", it is often a code word for "MILD".
NO Jury will pay a dime for someone who merely suffers "DISCOMFORT". That is NOT a word that conveys pain and suffering. Instead, it speaks to some kind of uncomfortable situation that most people find themselves in life once in awhile, and never expect to make a claim for anything.
You can use such words as will more adequately describe the quality and quantity of your pain. For example, describe whether pain is sharp or dull, whether it is localized or a dull ache over an area, and how long it lasts. Then be prepared to speak about the things that you know you cannot do anymore or you will experience pain that night or the next morning.
Here is a list of adjectives you can use in your communications with both the doctor and the adjuster—I think it is kind of in order:
Mild
Discomforting
Annoying
Troublesome
Nagging
Agonizing
Punishing
Miserable
Intense
Unbearable
Distressing
Horrible
Excruciating
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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
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
