PERSONAL INJURY:

Claim Killer “Buzz” Words

Having served as defense attorney for major insurance companies, I have had an opportunity to work with adjusters, claims and risk managers. This experience has provided me with valuable insight as to how personal injury and property damage claims are evaluated and adjusted. Having worked as a plaintiffs’ lawyer and a defense lawyer for many years, I have interacted with defense counsel and I understand what aspects of a claim will “turn off” insurance dollars.

If you are an injured person or a claims manager, here is what I call claim killer “buzz” words which more often than not reduce the value of a claim. If you are an injured person who has been seriously hurt in an automobile, motorcycle, or trucking accident, you may benefit from reading this page from the Thorsey Law Legal Pad.

“Pre-existing injury” is a claim killer buzz phrase that gets bantered about by claims adjusters and defense counsel. Sometimes, adjusters and defense counsel have good cause to be concerned about the injury that was there before the claimant was involved in a premise liability case or an automobile accident. In the majority of cases, the person is hurt very badly and there is no prior injury that can be shown to have pre-existed the injury caused by the carrier’s injured.

Insurance companies have a wealth of information available to them. If you have been injured and have filed a prior claim, chances are the insurance company will know about it. If you have been injured before in the area where you are currently hurting following an accident, tell your personal injury lawyer about all significant prior injuries. Under the law you are allowed to still recover for exacerbation of a pre-existing injury. If your lawyer is caught off guard by a prior injury, then his and your credibility with the insurance adjuster will be critically damaged and you may hear those claim killer buzz words: “pre-existing injury.” It is far better to focus on how the automobile crash made your weakened bones from the prior injury permanently damaged, than to destroy your credibility during a negotiation. If your lawyer knows about a weakness to a particular area of your body due to a pre-existing injury, he can use a Claim Builder “Buzz” Word- the “Egg Shell” plaintiff to help maximize your recovery.

“Failed to Treat” is another claim killer buzz phrase that is also used frequently by claims adjusters and defense counsel. Insurance companies are not in the business of paying claims. Insurance companies and their adjusters and counsel are in the business of adjusting claims and paying as little for a claim as possible to build value for insurance company shareholders. While there is nothing at all wrong with that, if you are an injured person and you do not understand the adversarial relationship between you and the insurance company, you will not receive top dollar in either a settlement or a jury verdict for your bodily injury or property claim.

Many times following an accident, a person will be seen in the emergency room but will not follow up with his or her personal physician, orthopedic surgeon or chiropractor. In my thirty years of practicing law I have heard every excuse under the sun for an injured person not treating following an accident. Sometimes people are between jobs and do not have health insurance. Sometimes people hurt but think they are simply bruised and it will go away with time so they do not go to see the doctor about it. Other times people or their doctors are just busy so there is a lag in getting into seeing the doctor or missed appointments.

Claims adjusters and defense counsel will identify the date of loss and will look for “holes” in your treatment. If you are told in the emergency room to follow up with your orthopedic surgeon or chiropractor, then you should immediately as soon as you are able schedule with your orthopedic surgeon or chiropractor. Most emergency room discharge instructions recommend that you follow up. You should ask in the ER or hospital about following up and request that the discharge instructions recommend that you do so.

For example, I represented a young man once whose car was “t-boned” and pushed off the road into a parking lot by a negligent driver. Because my client was very active both in work (government contractor IT sales) and play (weight lifter), he did not treat right away. He also missed several physical therapy appointments. He had a torn rotator cuff in his shoulder but the insurance company adjuster and their in-house lawyer did not believe us. Why? If you guessed “failure to treat” claim killer buzz words you guessed right.

My client – a busy active and generally healthy young man- did not treat as frequent and often as he should have initially. His failure to treat left the door open for the insurance adjuster to speculate that my client had injured his shoulder lifting weights. That “theory” was debunked when the insurance company doctor agreed with my treating physician’s testimony that my client injured his shoulder in the automobile collision rather than in the gym. Ultimately, the case settled just before trial for nearly $100,000, instead of the $30,000 first offered by the insurance company.

If you are injured by a negligent driver, do not let claim killer buzz words lessen the value of your recovery. Not only is it bad for your claim but it may jeopardize your health as well. Assuming you are injured, treat early following the accident and faithfully follow your physician or chiropractor’s recommendations for follow-up care. Missed appointments will lead to a missed opportunity to settle your claim for top dollar.