QuestionI was hit by a car while riding my bike to work in November. The other driver was uninsured and I have a claim with my car insurance. I refused the ambulance ride because I do not have medical insurance and my husband took me to an urgent care center. I broke two toes, fractured my elbow and had a large hole in my knee. I also injured my rotater cuff in my shoulder and lots of scraps and bruises. I was not able to drive or walk for 6 weeks and was not able to work for 6 weeks. I have a physical job (gardening). I also had 6 months of physical therapy and was not able to start fulling do all my job for 6 months. I still have some pain in my shoulder and foot. But the physical therapist said that I will have some of that for a long time or maybe forever.
I am a really active person and so is my family. I have been very limited for the last 6 months and cannot seem to talk myself into riding my bike again.
I have been keeping good records and have been reimbursed for 60% of lost wages and medical bills thru my PIP insurance. Now the uninsured adjuster is talking with me about a pain and suffering payment. No numbers have been discussed yet. I have heard that it is normal to expect about 2x the medical bills for pain and suffering. Honestly my medical bills are low because I did not go to the ER and have tried to keep them to a minimal amount about $4000.
Can you tell me what a reasonable range for pain and suffering will be? Or how to know if the amount they offer is fair?
AnswerHi Samantha,
I hope two things are true about this answer I am about to write:
#1. That all the time I am about to give you will at least be considered, since I am going to push for something that is contrary to the way you are proceeding; and
#2. That you are a forgiving person who will not grade Dr. Settlement down for having made you wait three days on account of my wife and I having taken a weekend trip from Edmonton up to Jasper, in the mountains of Alberta, Canada. Yes, the insurance claim website www.SettlementCentral.Com IS located in Washington State, but my wife has a psychology practice up here, so I am here most of the time. And, FYI, the mini-vacation was spectacular!
One additional reason I am going to give you A LOT of my time is that you are A GARDENER! My favorite hobbies are reading and gardening. We have a short growing season here in Alberta. It snowed four inches on April 27th. But there are a lot of sunny days, so the plants do get their boost of photons.
I try to get my answers out within 24 to 36 hours, but as you will see, I am not like some of the others who will simply fire off a couple of paragraphs and call it good. I do not think that is much of a service to those who come to us looking for help. Hence, the extra time necessary to produce something that—hopefully—can make a difference in the lives of those who need our help. Does that make sense? I do hope that much of what follows will also make sense, even if you are not thinking along the lines I am about to recommend. Ready then, Samantha? Here we go!
I also hope you will not grade me down for providing TOO MUCH information. The problem is that with such little information, I have no idea whether your claim is worth $30,000 or $150,000. The answer lies in the prognosis of the three major injuries. So I am going to take the more cautious approach and make this a VERY THOROUGH answer. Do NOT BECOME DISCOURAGED at all of the stuff I am about to throw at you. Take it one piece at a time. It is ALL NECESSARY if you do have a real big claim (which you DO have if there is some prognosis of future problems).
The last piece of introduction is to let you know that you need to hire an attorney if you have a big claim. Insurance injury www.SettlementCentral.Com claims website teaches personal injury claims to members. But we DO NOT encourage people with significant claims to do it self-help because they will leave a lot of money on the table. Errors or ommissions in a smaller claim do not matter too much. But a error in a $100K claim can cost the claimant a lot. BUT—as many questioners probably do, you might reject this advice. Hence, you are going to be sentenced to read all of the following as homework!! Now, on to your claim, Samantha.
I am VERY sorry to hear of your accident and serious injuries. I favor bikes, and can understand how you are reluctant to get back on. But that points out just one of many areas where your claim needs some help because I believe this is a compensable item of damages, but my bet is that you have in no way prepared this area for compensation. I say that because I think you were not going to include this in your demand letter as something a doctor has treated. And any degree of emotional distress (in this case, fear—a "light" kind of PTSD) MUST be treated by a medical doctor, or at the least, a licensed psychologist. This is a potentially significant loss in your life, and unless I mentioned it, you were not going to be compensated for it.
I apologize for appearing to beat you up right off the bat, Samantha, but your facts show that you have not had legal help since an attorney would have tied up some of these issues. I will get to the topic of valuation in a bit, but since we started on this look at your claim potential, I will discuss just two more areas where your claim valuation will fall far short in comparison to what it should be IMHO.
Another telling example of how your claim will suffer is relying upon the prognosis of your PT for future problems. "But the physical therapist said that I will have some of that for a long time or maybe forever."
That is NOT EVEN going to be admissible testimony unless a doctor gives the same opinion, and you did not mention any doctor giving you such a warning. Hence, you are lacking a serious prognosis from a person who is qualified to make such an opinion (the PT is not). Hence, no matter how much one builds upon that statement in a demand letter, it is of no value since the adjuster knows it is inadmissible. I will suggest another route, in Prognosis, below.
A third example of how your claim will suffer is the failure to account for long-term damage to the elbow, the knee, and the shoulder. Those are three of the most complicated joints, and there is no such thing as a quick treatment for pain and be done with it. Hopefully, the elbow can be a long-term fix. But—assuming there was the kind of serious trauma it appears when a car hits an unprotected person, BOTH the knee and the shoulder WILL ASSUREDLY come back to bring you difficulties in future years. Well, looking at it now as I write this, it looks to be just a part of example number two, above: lack of a good solid prognosis regarding LIKELY future problems. I will address that in the Prognosis section, below:
I WILL get on to some positive ideas in a bit, Samantha. But first let's take a few moments to go over some of the history you have presented. I just want to make some comments about SEVEN topics you raised. Since I cannot use HTML here (i.e. bolding) to set my comments off from yours, I will use ALL CAPS AT THE START of each of my comments. OK?
"I refused the ambulance ride because I do not have medical insurance."
COMMENT: THAT IS SMART SINCE you might be using all of your PIP limits, and that money would then be paid out of your residual UIM limit, thereby reducing your general damages (pain and suffering, loss of enjoyment of life, emotional distress, etc.)
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"I broke two toes, fractured my elbow and had a large hole in my knee. I also injured my rotator cuff in my shoulder and lots of scrapes and bruises."
COMMENT: SERIOUS TRAUMA IS THE beginning point in evaluating the claim. Hence, this will be a BIG plus in the second of the fourteen factors I will give you below. The idea of multiples times medical costs does not work well in your case for two reasons. First, there is much more severe trauma than usual in a car accident. Second, you have cut down on medical expenses. And third, you DO have a potential claim for emotional distress in the light PTSD that shows itself as fear of riding again (ASSUMING you can do as I am going to suggest below regarding qualifying medical testimony).
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"was not able to drive or walk for 6 weeks and was not able to work for 6 weeks. I have a physical job (gardening). I also had 6 months of physical therapy and was not able to start fulling do all my job for 6 months."
COMMENT: THIS CAN BE A HUGE INCOME LOSS CLAIM, provided you have two items of proof. You will need to prove your lost income via either wage slips showing your normal income, or, if self-employed, via income tax filings and new contracts you were doing—or ones you can prove you missed out on.
But none of that wage proof is even relevant unless you can prove that you could not work. There is a standard of proof that requires a doctor's note or mention in her records of problems you would have in going back to work. So look for that kind of record. The PT notes can be used here if she opines that you could not work. The second part of proof when we have no doctor explicitly saying you were to be off work is general common sense.
For example, someone in a leg cast cannot return to gardening, and we do not need a doctor to say so. But in your case, if you do not have any mention in the records, I would consider asking for that in a Narrative Report, see below. It kind of depends upon what limits you have for both PIP and UIM.
If you have only $10K in PIP and $25K in UIM, then why bother to ask for a narrative report, since the medical records as they stand should merit an award of the policy limits. But if you have $50K in UIM, or hopefully a lot more, then you will need to prepare a solid loss of income claim. I will make a brief reference to that below.
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"I still have some pain in my shoulder and foot. But the physical therapist said that I will have some of that for a long time or maybe forever."
COMMENT: THE PT IS EXACTLY CORRECT, but, as noted above her opinion is worthless since she is not a doctor. Still, be sure to include it, assuming she made it in writing. The fact is, Samantha, MOST ALL helpful stuff the patient hears in the offices of her doctors and other care providers DOES NOT make it into the medical records. Too long to go into in detail here as to WHY that is, but that is just a fact. More on this in Prognosis, below.
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"I am a really active person and so is my family. I have been very limited for the last 6 months and cannot seem to talk myself into riding my bike again."
COMMENT: GOOD FOR YOU ON HAVING SUCH an active lifestyle. What you need now is to round up a couple of witnesses who might be able to give some written history about your activity level. You get a PLUS in the valuation part, below, based upon the degree to which this accident interfered with your normal enjoyment of life. What the couch potato lost since he cannot move after the accident in NOT going to be compensated at all in comparison to what an active woman lost from her lifestyle. The issue is to DOCUMENT EVERYTHING, see a couple of the URL links below to insurance claim www.SettlementCentral.Com website tips for injury settlements.
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"I have been keeping good records and have been reimbursed for 60% of lost wages and medical bills thru my PIP insurance. Now the uninsured adjuster is talking with me about a pain and suffering payment. No numbers have been discussed yet. I have heard that it is normal to expect about 2x the medical bills for pain and suffering. Honestly my medical bills are low because I did not go to the ER and have tried to keep them to a minimal amount about $4000."
COMMENT: YOU ARE AN EXCELLENT INSURANCE claim client, Samantha. Keep those records and documentation for your demand letter. Documentation is one key, and using witness statements and a narrative report will supplement those records of yours.
As for the issue of wage loss, the PIP money is not all you get. You need to make a FULL loss claim under the UIM coverage. Again, it depends upon how much insurance you purchased, because even with no wage loss claim you are above the $25K policy limit. If you have higher limits, by all means include your FULL loss of income, not just that which was paid by PIP.
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OK, Samantha, I will start with your question, so at least you will know that I have tried to answer it. But, as you will see, it would be impossible to even guess what your claim value is, given so little information. What is the prognosis for the elbow, knee, and shoulder? Without that information, anyone who even guesses at a value is waaaay off base. How would one know what kind of problems you are having even now, let alone in three or six years? The value would vary by many tens of thousands of dollars.
But I WILL give you some factors to consider, even though the methodology does NOT work well in your case.
SOME TIPS ON VALUATION—these are loose guidelines only, since we are prohibited from giving valuation on big cases in light of the exposure to a malpractice claim. How in the world would anyone even begin to guess at the value of your claim when your injuries have no medical prognosis? Anyone who would take a shot at valuing at this stage is not worth asking.
How does one figure out what to ask for? Quick Answer: get as much as you can. Your UIM limits will be the value if you have $100K or less. Demand the full limits if your doctors give a somewhat guarded prognosis. Figure out what would make you happy, and increase that amount by at least 50%! The value is what you and the adjuster agree it will be. Well, if that is not scientific enough for you, let’s learn a bit more about valuation of personal injury claims.
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. Plus, one would like to meet the claimant to see how she will “sell” to the other side and to the jury. Those online sources that mention a "rule of thumb" is just that: a gross estimate.
SHORT ANSWER: A common theme among those who still think a “rule of thumb” formula will put you in the valuation ballpark is to multiply the medical specials times a number from ONE to FIVE (depending upon factors, some of which I will give you later—or all of which are fully discussed in the members' side of my website, dealing with insurance settlements 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.
Let's take a look just two factors that put the lie to the general use of this rule of thumb. An obvious one is that of any preexisting condition that the victim might have. A tortfeasor is liable for both of these:
A. the degree to which he made the preexisting condition WORSE; and
B a light-up of an asymptomatic preexisting condition.
A second, not so obvious, but very important factor that shows how inaccurate a “rule of thumb” formula can be, is just plain location of the trial. Let's start with geography. Values differ from state to state, and within each state. City values are often different than rural values on claims, especially if the economy is tenuous in small towns. And the differences can be HUGE between these areas, even if only 30 miles apart.
Here is a listing of factors that will affect both the multiplier you will use, as well as the value of the claim inasmuch as they will increase or decrease the product of your multiplication.
1. LIABILITY DISPUTE
This is a big one because it most dramatically affects value. You should NOT ACCEPT any reduction in value for fault.
2. Trauma suffered
The value of your claim increases with a bigger crash, and decreases with a low damage tripping wherein one catches himself. Why? Just human nature. Again, you had a SERIOUS crash, with a lot of trauma, so add this in as a PLUS.
3. Medical special damages
Cost of medical and related health care expenses; higher costs usually equate to an increase in value (excepting, of course, cases of gross overtreatment).
4. Type of injury
Where does the injury fall within the insurance industry's "hierarchy list" of valuing injuries? Irrespective of which injury may cause more pain, injuries are valued according to:
E. seriousness,
F. tendency to be persistent or permanent,
G. whether nerve impingement can be proven, and
H. whether or not they need objective proof to be believed (e.g. a broken bone versus soft tissue strain).
You have VERY SERIOUS injuries, unless the doctors say that you have a clear prognosis.
5. Type of medical care
Where does the medical care fall within the insurance industry's "hierarchy list" of valuing medical care? Orthopedists at the top, chiropractors near the bottom. You used a general practitioner, so she is halfway between the two extremes.
6. Prognosis- future care—permanency of injury or pain and suffering—does your doctor recommend 6 months of care, or were you done treating 4 months ago? Even if you are done treating, will the doctor predict future problems?
7. Your medical and claims history, prior accidents, prior injuries or treatment of the same area of the body.
8. Impairment of quality of life. Your emotional distress fits in here. Fear of cycling can be a large dollar figure, IF HANDLED BY AN ATTORNEY.
9. Quality and persistence of pain suffered.
10. Quality and thoroughness of your medical records.
11. Lost wages.
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I am going to give just a few more ideas on handling your own claim, Samantha, and then I will end up with a recommendation to hire an attorney.
Gather Evidence: photos and witness statements
GET PHOTOS
Take your cell phone or small camera and take some photos of the area. GATHER ALL EVIDENCE NOW: DO IT QUICKLY AND QUIETLY, without notifying the hotel just yet. Leave that for later.
http://www.settlementcentral.com/page0216.htm Evidence to Support Your Personal Injury Insurance Claim of Premises Liability, Slip and Fall.
http://www.settlementcentral.com/page0200.htm Photographs to Preserve Evidence of Negligence
Witness Statements Settle Personal Injury Insurance Claims http://www.settlementcentral.com/page0196.htm
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ANY CHANCE OF A SUBROGATION CLAIM (on behalf of your PIP carrier)?
I do not think this will happen, but I will at least introduce the topic so you will not be shocked. There have been instances in some states where the UIM adjuster had to honor a subrogation claim from the PIP adjuster. For example, if PIP paid $8,000 in medical costs and $5,000 in wage loss, they could make a subrogation claim for $13K versus a third party tortfeasor.
Here is a basic primer on subrogation for you from www.SettlementCentral.Com Insurance Subrogation— http://www.settlementcentral.com/page0459.htm Forced Payback to YOUR OWN Insurer From Your Personal Injury Award.
Can or will your company try claim subrogation versus your UIM limits? If the adjuster says there is such a claim, then come back to allexperts.com and ask me about it and provide full details this time so I can get a better handle on what is happening. Include your state. You should also contact your state insurance commissioner http://www.settlementcentral.com/links.php
and ask her about the subrogation claim.
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LOSS OF INCOME CLAIM—to date AND IN THE FUTURE IF GARDENING IS SUSPECT ACTIVITY FOR FURTHER DAMAGE
You have a potentially large loss of income claim, Samantha. This time it is the FULL AMOUNT of lost income, NOT just the percentage paid by PIP. And do not forget to add in the first two weeks that PIP did not pay.
Since PIP has already paid part of your lost income, the adjuster must be satisfied with both the medical reason and the wage loss proof. Use the same documentation for the FULL amount.
What if your prognosis is guarded regarding returning to the gardening activity? In that case, you need to make a claim for loss of future income. This is called loss of earning capacity and is as good as any wage loss claim IF THE MEDICAL PROOF IS SOLID.
Loss of Earning Capacity: this applies to YOU as both the employee and the business owner. The injuries often preclude the victim from performing at the level she was before the accident. Or she has to take up a different line of work. Her capacity to earn has been diminished. Proof of this loss is more difficult than straight wage loss.
IF it turns out that you have such serious injuries—or those that follow (for future earning capacity), contact me again to go from there. This, assuming of course that the UIM limits are at least the next step above $50K because your claim surely can be proved to be worth that amount without the addition of loss of earning capacity.
IF your doctors think that your body might not be able to handle gardening full time for the coming years, and IF they make a strong prognosis, THEN you should consider going for FUTURE LOSS OF INCOME. This applies to both the employee and the business owner.
It is related to the Loss of Earning Capacity, but it is not so serious, nor so long lasting as the former. There are a lot of injuries that will impact the ability of the victim to work long after the insurance claim settlement is paid. We often see the victim’s income suffer a year or so after the insurance settlement, but by that time it is too late to gain compensation. Absent unusual circumstances, an insurance settlement cannot be set aside. Once you agree, then all future medical costs and all future wage loss is on YOU. There will be no compensation coming your way from the tortfeasor’s insurance company.
Hence, it behooves attorneys to make sure our victims present FIRM PROOF of future problems that the doctor predicts. Notice that the proof is not some general non-committal statement, such as: “The patient is released from care at this time, but he can expect future problems with his neck that could impact his ability to work.”
NO, that kind of prognosis will NOT sustain your burden of proof. Why? Because proof of damages can NEVER BE SPECULATIVE. That doctor has not committed himself to a firm statement that the victim, on a more likely than not basis, WILL suffer problems that WILL make his work much more difficult, if not impossible.
Since speculation will NOT sustain your burden of proof for this element FUTURE LOSS OF INCOME as part of special damages, take a look at your doctor’s prognosis and discuss it with him.
FIGHT Insurance Adjuster Attempts to Reduce Lost Wages Claim
Here are some slick tricks used by adjusters. They will try to reduce the value of your lost wages claim by:
C. Paying you just the NET, not the GROSS wage loss; WRONG—you get the full GROSS amount of your pay.
D. Excluding hours for which you were paid, such as sick leave, vacation pay, or comp time; WRONG—you get full value for use of those assets.
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EMOTIONAL DISTRESS—YOUR LIGHT PTSD
As it stands right now, your fear that has kept you away from cycling is NOT worth one dollar in the adjuster's calculations. There is no medical proof. I think you DO have an emotional distress from your description, and you need to get some consultation with your general practitioner on the topic and have her refer you to a psychologist to help you.
This is a necessary result of the trauma you suffered and it is one that is easily understood by doctors, so they are able to treat it. Even if you only have one appointment on this topic with the CP and the psychologist, that is sufficient to bring the facts into the demand letter and seek proper compensation.
An emotional distress situation can grow if not treated. Right now, with the two treatments I mentioned, you would not be out of bounds to seek $10,000. If the psychologist believes that your PTSD is significant, and could impact your life for some years, even with treatment, OR if a medical doctor prescribes for your condition, then the value jumps above $25,000 for the emotional distress alone.
First, since you do in fact likely have some real emotional distress, get it at least mentioned in some medical record. If it is not already mentioned, then discuss it and try to get the doctor to take it up for treatment or to refer you to a psychologist. Even a minor discussion of emotional distress noted in your medical record will allow you to claim for it. Without a doctor's mention of it in her records, you will not be able to collect for emotional distress.
An adjunct of emotional distress is TERROR. What would a juror consider as fair compensation to go through what you endured, with the air bag blasting forth into his face? That is a terrifying moment and terror is in and of itself compensable.
Juries know that, and will award for terror. Consider a case that I had wherein a friend was negligent and going down the mountain after skiing, drove the vehicle off the cliff. Consider the moment when the passenger knows that they are airborne. THAT is terror. And the jury gave a good award. What was it like to be hit on the bicycle? What terror did you experience?
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PROGNOSIS NEEDED—NARRATIVE REPORT
You may need a narrative report to wrap up the details I have pointed out as missing. Think, for example, of the need for a good solid prognosis. That kind of opinion does not happen without the patient kind of pushing for it. We do have a letter to send (on the SCC members' side) that lists all of the factors you want the doctor to consider.
Next, get yourself some kind of cheap narrative report with a statement of present and expected future medical costs. Also, if your medical records are not in good simple narrative format (as opposed to shorthand version of hand written notes), then consider obtaining a narrative report from your doctor. 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. This is also a good way to boost the value of the claim. You can use the narrative report to clean up a few of the topics I have discussed that need extra help,. These would be the prognosis and future medical care and future wage loss. Make her put in a sentence or two about the challenges you have faced in your fear of cycling again.,
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FINAL TOPIC, Samantha: Learn how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
If you persist on going forward without an attorney, here are some ideas.
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 to have one call or so, but no more. The adjuster is in his domain on the phone, and you are NOT. He can use standard strategies and questions that you are not prepared to deal with. Always have your information and ammunition in writing to give to the adjuster. Use e-mail.
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).
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement.
I trust that my 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
