QuestionHello,
I'm trying to get perspective on a pain-and-suffering offer I was given for a rear-end collission I had last fall. The accident caused soft-tissue neck and back injuries. I was treated by a chiropractor for 26 visits over 3 1/2 months. The injuries were mostly spasms and uncomfortable, restrictive damage, not extremely painful but not something I'd like to repeat. I suffered through it but have healed well and have been released by the doctor.
The insurance company is offering $1200 over the medical expenses plus, because I asked, mileage to and from the appointments. They, of course, are indicating that they can't go much higher, though I did get them to increase it to $1500 before they withdrew the offer because I was arguing with them (cheap tactic, I'm sure).
I'm wondering whether their figure is reasonable or not? I've read about 1.5 to 3 times the medical expenses. Mine were about $2500. They appear to be low-balling, but I'm not sure how to proceed. What ballpark might I expect?
Also, I feel I'm entitled to compensation for such things as (1) personal time spent going to and from appointments, (2) loss of trade-in value on a car that has been in a collission (VIN report will show it, so it's perceived value is less to most buyers), and (3) time off from work (I got paid for my time off but have read they are still reimbursable). Can you comment on these?
Thank you so much for any advice.
John
Answer
Hi John,
It is good to hear that you recovered fully. Still, have you any assurance that your back and neck will withstand the physical activities that you normally did in the spring and summer? I am going to put in a little extra time on this question because it involves more than just valuation.
While you asked about valuation, I am first going to give you a little to think about with regard to the upcoming seasons of physical activity and whether or not your soft tissue injuries will show themselves in nagging pain at night or the next day following some physical activity.
1. DO NOT SETTLE YOUR CLAIM UNLESS YOU ARE ABSOLUTELY CERTAIN THAT YOUR 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.
Maybe you have already been skiing and hiking and know that your body will hold up. Or maybe your job is physically demanding, so you know that you are truly healed. But I have seen many cases where the claimant settled before he had put any real burdens on his body, only to find that once he started to do normal spring and summer chores and activities, he was in pain at night and the next morning.
By then he had long ago settled, so there was no one to pay for his medical expenses. His health insurance did not cover chiropractic, and his PIP closed with the release of the tortfeasor. So that is my word of caution to you: don't let them off the hook too early.
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
Side Bar: did you notice tactic #3 there, which is similar to telling you that the maximum they can go is $1,500?
Let's just finish up this topic of early settlements so you get the full picture of the advantage to them and the risks to you. Insurance companies like to settle early because the general damages—claims for pain and suffering—are always minimal, but continue to grow with continued medical/therapeutic care over the months. Therefore, the insurance adjuster will try to settle before your claim merits a larger pain and suffering element. This makes good sense for the insurance company. A claim that is still active after 12 months, with an injured claimant still undergoing treatment, will settle for a lot more pain and suffering money than a claim that is settled after two or three months of treatment.
If you had actual objectively verifiable muscle spasms, then you had a more serious soft tissue injury. Most who visit the chiropractor after an accident do not have spasms, which are actual contractions of the muscles that can be observed and constitute an objective clinical sign on injury. Thus, in serious soft tissue cases such as yours, John, the full extent of most injuries is not known immediately after finishing one early round of treatment, because the injured person has to undergo some of the wear and tear of everyday life, including the pounding her body will receive from a day's work. Even jobs that appear not to be physically demanding can be hard on an injured body.
For example, have you ever stood all day with few breaks, as a store checkout clerk or a jewelry salesperson does? Or sat all day at a computer, as a secretary or phone service center employee does? Many jobs will interfere with healing, and you have no way to know how your body will respond until you have experienced sufficient physical exposure to load-test the scar tissue as you heal.
Plus, who will pay for your medical care incurred AFTER you settle? What if you were to settle now and three weeks later when you mow the grass and the pain starts to become too much, you go to a chiropractor only to discover that you can expect a course of treatment that will cost a lot of money? After you settle your claim, all further treatment is your responsibility. Except in specific, unusual situations, you cannot go back and re-open a settlement: when you cash the check, you agree to close your claim in all aspects. Check with your PIP adjuster to find out whether they will pay anything once you close the claim against the tortfeasor.
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
OK, enough preaching for you to wait until you do strenuous physical activity, and on to your questions. I am next going to address each of the four items of special damages you mentioned.
2. TRANSPORTATION FOR MEDICAL CARE ALWAYS INCLUDED, AT 40.5 CENTS PER MILE
It was no big deal for them to give this up as it is a required item. Some states have set a rate, but most have not. Thus, we recommend using the rate set by your favorite Internal Revenue Service, which is now $0.405 per mile.
3. ALL TIME OFF WORK FOR APPOINTMENTS IS A SPECIAL DAMAGES ITEM, IRRESPECTIVE OF WHETHER OR NOT YOU GOT SICK LEAVE.
No questions, no fuss. Submit your time and earnings statement that shows both your rate of pay and the time off work to attend appointments.
If your time off work was because you were in pain and had to avoid coming to work, you will be paid, but you need a chit from the doctor authorizing the absence.
4. PERSONAL INCONVENIENCE OR TIME TO AND FROM APPOINTMENTS OR TAKING CARE OF THE REPAIR OF THE VEHICLE ARE NOT INCLUDED IN ANY DAMAGES.
5. DIMINISHED VALUE FOR YOUR VEHICLE??
You gave no information to give an opinion on diminished value for your car. Here are a couple of thoughts, though.
You mentioned two things that lead me to wonder how you will make a diminished value claim. First, you did settle with the tortfeasor on property damage already, did you not? In other words, didn't their check state that it was in full payment of property damage claims? If I were the adjuster, I would tell you that you already signed of on property damage. That is no reason why you cannot ask for it, but be prepared for that defense to be raised.
Next, you state that your vehicle VIN report will show it has been in an accident. Why is that? Where did you learn that information? I am aware that in serious repairs with a lot of damage, VINs are tagged and can be researched (via carfax.com, for example). But if you just had something like $5,000 auto body repair work, I doubt your VIN will be tagged.
You may be required by a dealer to fill out a disclosure statement on any trade-in however. So they would know. But if your state does not have a disclosure requirement (and most do not) on resale, no one will know.
Plus, what is the diminished value if they should know? It depends upon two factors:
• First, the value of the vehicle before the accident, and
• Second, the nature of the repairs done: were they structural or sheet metal and paint?
If your vehicle were valued at over $30,000 before the accident, someone might insist on a reduction in price for a $5,000 repair, especially if there were structural damage or important parts were replaced with imported after market parts.
On the other hand, if your vehicle was only worth around $9,000, then the market place will not punish you for the repairs, unless of course they involve structural members. If that is the case, what is the diminished value? One could see making a diminished value claim if most of the $5,000 was spent on structural damage, which is the kind of thing the next buyer does not like to hear.
On the other hand, $5,000 does not go too far these days in auto body repairs even if only for sheet metal and paint. Thus, if you had no real structural damage, it would be a hard sell to show that a $9,000 car lost any value in having cosmetic repairs done.
And then one would have to have an analysis of the vehicle at your expense in order to prove your claim. So if you want to do this, first bring it up with the adjuster before you spend the money on the analysis to see if you are barred by the settlement of your property damage claim at the time of the repairs.
6. NO VALUATION OF CLAIM IS POSSIBLE WITH SO LITTLE INFORMATION.
Valuation is not like going to a drive-in for a fast food meal. It takes time and study of many factors, including liability and medical records. The "rule of thumb" is just that: a gross estimate.
So, I have a short answer and I promise to give you the full longer more detailed answer if you ask me later, when you are ready to settle.
SHORT ANSWER: A common theme among those who still think a formula will put you in the valuation ballpark is to multiply the medical specials times a number from ONE AND A HALF to FIVE (depending upon factors, all of which are listed in the members' side of my website, www.SettlementCentral.Com). Then that figure is the total value of the personal injury portion of the claim. Of course there is a long list of factors to consider for adding or deducting from the total.
But save yourself from going to my site now for the factors and let's just say you are in the average range. The insurance adjuster offered you 1.6 times your medicals, which is in the ballpark at least. ($1,500 plus medicals equals $4,000 offer divided by $2,500 equals 1.6)
That sounds pretty light to me for someone who had actual muscle spasms. You could hold out for two or two and a half times with any decent doctor notes. I would reject it out of hand and finish the plan of action below instead.
7. PLAN OF ACTION—PHYSICAL EXERTION MERITS ANOTHER LOOK AT TREATMENT—RECISSION OF YOUR SETTLEMENT DEMAND
If you have had a lot of physical stress on your body, then ignore this suggestion. But if you are like me, from the time of your accident in the fall until now you were not too active.
Let's say that you are now going to mow the grass or start for long walks or other physical activity that will stress your body and then you notice pains at night or the next morning. Then you call your doctor who duly makes a note of this episode and treats you, but after another physical activity you find yourself back for another treatment. Thus you will have started a short additional treatment regimen to deal with this pain that shows up after you exert yourself.
One would rescind the outstanding settlement demand if one were to experience pain at this stage of healing. Do not be nasty about it or pushy: be professional and do it in writing. Let the adjuster know that as soon as you did become more active you started getting these pains so you do not believe it is time to settle just now inasmuch as you want to return to your doctor for her help.
8. DEMAND LETTER—COMMUNICATE IN WRITING—DOCTOR'S NARRATIVE LETTER
Finally, I want you to be an effective communicator of your demand for settlement. Don't just call up the adjuster and start discussing your demands. Instead take the time to make your own demand letter—that is one step that will really pay dividends for you. I cannot tell whether or not you sent a formal demand letter. But it is best to think about that now if you did not.
Personal Injury Demand Letter Samples http://www.settlementcentral.com/page0170.htm
Use a Confidential Diary for TOP Insurance Claim Settlements http://www.settlementcentral.com/page0208.htm
Next, take what the adjuster said about your injuries and put it in writing and go to your doctor and see how much she would charge to make a nice narrative letter for you. This is a tactic we teach our members at www.SettlementCentral.Com called a "second salvo" letter. You respond in negotiations with something new in writing.
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. Personal Injury Medical Records http://www.settlementcentral.com/page0114.htm
Communicate with the adjuster in writing, showing your own analysis of value. It is fine to meet with him or her, but have your 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 respectfully request that you locate the feedback form on this site and leave me some feedback.
Best Wishes,
Dr. Settlement, J.D.
www.SettlementCentral.Com
