QuestionI was rear ended about a month ago at a red light. The guy was going about 35-40 mph. My rear end sustain some damage but not really that much. The total cost of the repairs was 1,400. Allstate has take full responsibility and has paid for the reapirs.
They also agreed to pay for my medical bills. I have been going to the doctor for therapy for my lower back for 4 weeks (2x a week). It was a dull pain but there were times that I had shooting pains right by my hip. The xrays showed that the was mild disk compression (possibly from the accident) and muscle spasms.
I have forwarded all info to Allstate today. My question was:
1. What should I expect?
-My doctor said to make sure that there is a clause or somthing stating that if the pain comes back that I can re-open the claim because she believe I will be back.
2. I have been paying the doctor's bill with my insurance @ work (copay). Will Allstate just reimburse me the copays or the total amount?
3. If they do reimburse me the total amount, do I send the money to Cigna?
Thanks!
AnswerDo not settle personal injury insurance claim too soon;
Insurance claim serious disc compression injury;
No allowance for future medical expenses included in insurance injury settlement;
Doctor narrative reports settle insurance injury claims;
Policy limits insurance claim— Underinsured Motorist Claim (UIM) against your policy;
Free legal information insurance adjuster—learn about personal injury insurance claims and insurance settlements;
SUBROGATION PAYMENTS to reimburse your insurance company;
Effective communication with insurance claims adjusters;
Dear Patrick,
It is smart that you asked these questions, because otherwise, you could have been headed to be the poster boy for favorite claimant of the month at the Allstate claims office. ONE MONTH after an accident that left you with SERIOUS injuries that you know next to nothing about, you "forwarded all info", probably without a demand letter or any witness statements, and now you want to know: "What should I expect"??
If you had not stopped to ask these questions, here is what I would think you would be trying on for size. I would have expected you will settle your claim at about one-tenth its value, that the Allstate adjuster will get her "high fives" in the office for allowing her to show you how the "good hands" people work when they give you the legal finger, that within 10 months you will be back in your doctor's office, that 20 months from now your radiating pain will still bother you and that you will have trouble with your work and your hobbies will be curtailed because to participate in them leaves you with too much pain, that you will have trouble sleeping, and that you will be totally upset with yourself for not waiting to see how serious your injuries really were before settling.
However, having taken the initiative to ask these questions, you will now be better prepared to wait out your settlement until the EXTENT AND DURATION of your injuries become clear, and thus your insurance settlement will be much higher.
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1. DO NOT SETTLE YOUR CLAIM UNLESS YOU ARE ABSOLUTELY CERTAIN THAT YOUR DISC COMPRESSION AND SOFT TISSUE INJURIES WILL NOT REAPPEAR ONCE YOU STRESS YOUR BODY WITH PHYSICAL ACTIVITIES. That Plays Right Into an Insurance Tactic Regarding Inducing Early Settlement of Injury Claims.
I am a little worried that anyone with THAT MUCH SPEED INVOLVED, your vehicle likely transmitted some pretty good trauma to your body. And disc compression and soft tissue injuries have a way of coming back to haunt you later when you start to get active a few months after concluding your treatments.
I am also worried that the insurance adjuster will just offer a small sum "for your inconvenience and any aches and pains you might have." DON’T TAKE THEIR MONEY TOO SOON.
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
Here is another page from my website that shows in detail why you should never make an early personal injury insurance claims settlement http://www.settlementcentral.com/page0211.htm
You have OBJECTIVE PROOF of a potentially serious injury that has the potential of causing you many problems in the future. Shooting or radiating pains through the hip and muscle spasms are signs of a serious injury, Patrick. Even if treatment and rest can quiet it down, it is something THAT WILL NEVER GET ANY BETTER. IT WILL NEVER "HEAL" AND BE RESTORED TO YOUR FORMER CONDITION.
A "disc compression" caused by trauma is NEVER "MILD" in the opinion of the victim. Who decided on that adjective? It distinguishes degrees of seriousness, up to ruptured or herniated. But the pain you feel is not "mild", and you need to write a good demand letter to tell the adjuster just that. This is also a good place to use lay Witness Statements to Settle Personal Injury Insurance Claims http://www.settlementcentral.com/page0196.htm
PLEASE DO NOT SETTLE THIS CLAM SO SOON. YOU MUST WAIT FOR AT LEAST 10 TO 12 MONTHS TO SEE HOW YOUR BODY REACTS. WRITE TO ME THEN ABOUT VAUATION, as it is waaaaay too soon to get into it now. (Unless of course I were the insurance claims adjuster, in which case I would be hounding you to settle NOW by dangling a check in front of you—do not fall for it.)
STRATEGY: write (not call) to the adjuster if she responds with an offer and thank her, but DO NOT EVER RESPOND with your counter-offer at this stage. Tell her you will have to see how your back will react since the symptoms continue unabated and you do not want a long term problem to go uncompensated. Thus, you will get back with her once your doctor lets you know that your condition has stabilized and she can give a solid opinion as to a prognosis.
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2. 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 Allstate 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.
Here is some background on why you cannot do as your doctor suggested. You can skip it if you want, or read it and learn why insurance companies will be reluctant to leave a claim "open for medicals".
Your second question was regarding your doctor's statement: "to make sure that there is a clause or something stating that if the pain comes back that I can re-open the claim because she believes I will be back."
What kind of doctor is this, a general practitioner, a neurologist, or an orthopedic surgeon? She has made a very good suggestion, but she lacks familiarity with the personal injury tort system and how insurance settlements work.
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, Patrick, 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 "CLAIMS 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 claims 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 claims reserves.
So they are very reluctant to leave a claim open for medicals, 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 (as her request shows her to be), and if she is not a specialist (neurologist or orthopedic surgeon), then her prediction for future problems you will suffer could 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" (the prognosis) 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 she darn well better include strong language in her prognosis, or you will not get any money for future expected problems.
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3. New topic: CONSIDER USING A DOCTOR'S NARRATIVE REPORT to assist in settling the insurance claims.
Have you seen any of the doctors' records that went to the insurance adjuster? If not, it is easy enough to get a copy so you can make sure that everything of importance you discussed is included therein IN READABLE FASHION.
Cryptic notes may be medically significant, but why make the insurance adjuster struggle to figure out the significance of the injuries? A narrative report or letter spells things out so the adjuster can see, read, and understand the doctor's diagnosis and prognosis and her record of the problems and pain and suffering you have endured.
I am worried about your use of this phrase: "mild disk compression (POSSIBLY FROM THE ACCIDENT) and muscle spasms. You do not have any claim at all if that is all the more certain your doctor can be about the etiology of your disease. If she does not know the standard of proof in testimony, she can absolutely ruin your claim.
The idea that she told you the disc compression was "POSSIBLY FROM THE ACCIDENT" is very troubling. HER REPORTS AND RECORDS AND TESTIMONY will NOT RISE TO THE STANDARD OF PROOF FOR MEDICAL TESTIMONY. A doctor's opinion that something is "possibly" due to an accident is not ever going to carry the day for you. She has to be able to testify that your condition was due to the accident within a reasonable medical probability (fancy language for saying it is more likely than not true). If her notes are not positive for you on this, then a narrative letter is the place for her to rectify the situation.
Plus, narrative letters can tie together the trauma and its after-effects in your life that is authoritative.
We recommend that claimants almost always include some type of typewritten medical information to accompany to computer coded medical records and/or handwritten records. That is the first clue as to when to use the narrative report: if you are asking the adjuster to evaluate your claim on the basis of handwritten records and/or computer coded records that indicate diagnosis and treatment codes, then you need to supplement the record with a narrative report.
We have a lot of free legal tips on insurance claims settlements using doctor narrative reports http://www.settlementcentral.com/page8003.htm You can get information there as to how to ask for a narrative letter and what it might cost. Talk to the doctor's office manager about it.
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4. 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. Or at least wait until you have furnished sufficient information that would tell a reasonable person the value of your claim exceeds the minimum limits. We teach our members how and when to demand limits information.
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5. Arm yourself to deal with the insurance claims adjuster: learn about personal injury insurance claims and insurance settlements.
Here is some easy reading for free to brush up on the tort system and to help you deal with the insurance adjuster.
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
"No medicine: no money"; medical costs increase worth of personal injury insurance claims http://www.settlementcentral.com/page0045.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
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6. Why not take a shot at making your own personal injury insurance settlement instead of hiring a personal injury attorney? (Assuming you were not in any way at fault in the accident.)
Write Effective Personal Injury Insurance Demand Letter http://www.settlementcentral.com/page0170.htm
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
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
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7. SUBROGATION PAYMENTS to reimburse your insurance company
Patrick, you asked how the medical costs would be reimbursed, whether or not you would be paid for the costs of your co-pay. This brings up the topic of subrogation, which is the means by which first party carriers (your insurance) get reimbursed for their payments out of the settlement with third party carriers (the tortfeasor's insurance).
Here is how it works. Let's say you had $10,000 in medical costs. Cigna appears to be your company, so let’s say that they paid $8,000, and you paid $2,000.
The first thing to find out is whether or not subrogation is claimed by Cigna. You cannot settle and try to sneak away in the night with their money, so it does not hurt at all to just call them and ask for their subrogation department. If they do not claim subrogation, then you get to keep the entire award. If they claim subrogation, then read on.
If they do claim subrogation, they will have put in a claim with Allstate already, in which they will show a list of medical expenses that they have paid. This is the amount of their subrogation claim. Make sure it is up to date before settling or else they can chase you down for the unpaid balance.
How will the payments be made? You will settle for a certain amount, and from that amount Allstate will cut a check in favor of Cigna for the amount of their claim and they will mail the check directly to Cigna. You will never see it inasmuch as it just comes out of the total of your insurance settlement. The balance of the insurance settlement will be paid directly to you, as an undifferentiated sum, including therein your co-pay totals.
Can you take anything from their subrogation to reduce that amount from $8,000? That depends upon a whole lot of factors, but the usual answer is NO, unless you live in a state that is progressive politically.
So, if you want to reduce down that $8,000 subrogation bill to get some subrogation relief, you best hope that your state votes right. That, my good citizen, depends upon whether or not you were an intelligent voter who elected people who listen to trial attorneys. Or did you elect conservative legislators who are in bed with the insurance industry?
SUBROGATION RELIEF VERSUS CLAIMS OF YOUR INSURER WHO PAID MEDICAL BILLS.
Many states, mostly "blue" states, have classified subrogation as an equitable relief for the insurers, irrespective of what the insurance policy says. That means if you have a tortfeasor with limits of $25,000 and your insurer(s) are claiming $8,000 in subrogation for medical expenses paid to your doctors, but your claim for general damages (pain and suffering, loss of enjoyment of life, etc.) is obviously FAR IN EXCESS of that minimal limit, then you get to keep the entire $25,000. As to that particular policy, the subrogation claim is secondary and will not be paid. This is called equitable relief.
YOUR VOTING MAKES A DIFFERENCE; KEEP (or make) YOURS A "BLUE" STATE!
Hey, give thanks that you voted "blue" if you did because in many "blue" states where the voters elect those who favor consumers over the insurance industry, subrogation is an EQUITABLE RIGHT. That means that if you do not have a tortfeasor limit high enough to cover your general damages (i.e. pain and suffering, loss of enjoyment of life, etc.), then you can block out subrogation entirely.
For those of you who live in "red" states, learn how you lose with your voting. Ohio is a good example: you are a "red" state that elected those who are in bed with the insurance industry. And hence you have no chance whatsoever of getting any equitable relief on subrogation. Your conservative officials have seen fit to ignore the pleas of your state's trial lawyers and arranged for the insurance industry to get first and last dollar subrogation relief, irrespective of the equities of the case! Those conservative legislators dance to the tune of the insurance industry and make you honor their contract; this is called a "legal" solution.
But for many other "blue" states, here is how the Washington court summarizes the equitable right of subrogation versus the insured's right to be made whole (payment of general damages) before insurers get a dime.
http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=329468MAJ
" But this right to (insurance company) reimbursement is subject to the rule that an insurer may not recover before the insured has been fully compensated (ie. Winters v. State Farm Mut. Auto Ins. Co., 144 Wn.2d 869, 876, 31 P.3d 1164, 63 P.3d 764 (2001); Mahler, 135 Wn.2d at 416-17. This rule was first announced in Thiringer v. American Motors Insurance Company, 91 Wn.2d 215, 588 P.2d 191(1978), in which the court stated that an insurer may recover 'only the excess which the insured has received from the wrongdoer, remaining after the insured is fully compensated for his loss.' Thiringer, 91 Wn.2d at219."
You can discover your own state's rules on subrogation by asking your state insurance commissioner http://www.settlementcentral.com/links.php What you are seeking is whether there is case law authority that subrogation is an EQUITABLE RIGHT, as opposed to a legal right (in which case your contract with the insurance company will prevail, irrespective of the equities involved).
NOTE: irrespective of how the insurance commissioner answers, DO NOT LET THAT STOP YOU FROM MAKING THE CLAIM FOR EQUITABLE RELIEF. Read the case I cited and copy some of the language I cited and just make the written argument for equitable relief.
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7. FINAL TOPIC: Effective communication with insurance claims adjusters.
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 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
