List of the Factors That Will Increase or Decrease the Value of Your Personal Injury Claim
The typical formula approach in determining the value of general damages, i.e. pain and suffering, permanent disability and emotional damages, is to multiply the amount of the MEDICAL specials by a factor between 1.5 and 3 if the injuries are relatively minor or continue less than one year, or by a factor of 4, 5, or more when the injuries are very painful, serious, long-lasting or permanent. Once this determination is completed, add the lost income and property damage components to determine the starting amount for beginning negotiations on the total value of the compensation due you on your claim.
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 & comparative negligence
This is a big one because it most dramatically affects value. If the liability dispute is one regarding how much blame each party should take, you can likely resolve it yourself. But if the insurance company is denying all liability, you had best think about consulting an attorney
Comparative negligence on your part up to 20% to 30% you can negotiate. Anything the adjuster wants to assign to you above that is a signal to contact an attorney.
2. Trauma suffered
The value of your claim increases with a bigger crash, and decreases with a low damage fender bender. Why? Just human nature.
This is significant because of the general misconception that an accident without a lot of twisted metal equates to no serious injuries. In fact, as doctors and accident victims well know, even a so-called "low impact" (a great term for the insurance industry to promote) accident can transmit significant harmful trauma, leaving the occupants with long lasting injuries.
Therefore, the total value of the property damage (e.g. cost to repair or replace a motor vehicle) becomes significant. Low damage equals an uphill battle to prove you were injured; hence you will see a reduction in the value of your claim.
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).
What is the nature of the expenses for which compensation is sought, i.e. actual treatment or merely diagnosis? What is the nature of the medications prescribed?
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 seriousness, tendency to be persistent or permanent, and whether or not they need objective proof to be believed (e.g. a broken bone versus soft tissue strain). Here is a list from most valuable to less valuable. As you might surmise, some injuries fit in more than one category. For example TMJ involves the head and a joint and soft tissue damage:
5. Type of medical care
- Is the injury incapacitating?
- Is the injury permanent?
- Does the injury involve brain damage?
- Does it involve the head?
- Does it involve vertebrae?
- Damage to a bone or joint?
- Is there proof of nerve damage?
- Is it disfiguring?
- Provable by objective versus subjective symptoms (i.e., broken bones versus soft tissue)?
- Severe emotional distress, if proven by medical doctor
- A soft tissue injury-sprain, strain, or bruise.
- Loss of consortium
Where does the medical care fall within the insurance industry's "hierarchy list" of valuing medical care? Irrespective of which type of care may actually ease your pain, or may sooner facilitate movement of your body and eventual healing, medical care providers are valued according to:
Given the framework that exists informally in the insurance industry, claimants who have relied heavily upon a discipline that is not favored by a particular insurer are less likely to see an award anywhere near that which will be given to a claimant who used a specialist doctor.
- Industry acceptance of their specialty
- Degree of difficulty of the training and practice (e.g. brain surgeon favored over massage therapist)
- Most conservative practices (e.g. medical doctor favored over alternative health care)
- Credibility according to societal perceptions (here chiropractors have made a tremendous move in the past twenty years; today the testimony of a general practitioner medical doctor will not necessarily overcome that of a chiropractor-which is a change for the better in our opinion)
That may not be fair inasmuch as the medical care provider at the bottom of the "hierarchy list" may have provided much more useful care in terms of stopping the pain and facilitating healing. But that is just the way it is, and the only way it will change is to convince the insurance industry through education, lobbying them, and-most importantly, through bigger jury awards for the testimony of these alternative health care providers.
This takes hard work on the part of these practitioners at the bottom end of the hierarchy list. But chiropractors used to be there, and they moved up by working hard to study their medical texts, by writing articles, and by earning their way to the stature of equals with a general practitioner medical doctor in the courtroom.
Nowadays, the opinion of the chiropractor is respected, and stands on its own as proof necessary to prove pain and suffering. By contrast, for those below the chiropractor on the hierarchy list, some courts will require medical or chiropractic testimony to qualify the practice (e.g. some alternative medicine practices).
Here then, is our listing of hierarchy of the medical care providers, as valued by the insurance industry in terms of effectiveness in presenting evidence at trial:
6. Prognosis- future care- permanency of injury or pain and suffering- or were you done treating 12 months ago?
- Specialists for brain injury
- Specialists for bone injury-orthopedists
- Specialists for nerve injury-neurologists
- Specialists for pain clinic-medical doctors
- Specialists for sports medicine clinic-medical doctors
- General Practice medical doctors
- Physical Therapists
- Alternative health care practitioners (if licensed)
- Acupuncturists (if licensed)
- Massage Therapists (if licensed)
Your claim value gets a boost if your doctor specifies that you will need some future medical care.
Permanency of the injury is a positive.
Having finished your treatments 12 months (or more) before settlement time is a negative. For one thing, you have lost the advantage of timing. There is not any threat of continued care to avoid. One advantage of putting out the demand letter when you are nearing the end of your treatment (but before you quit) is that the adjuster has some incentive to make a deal with you or else she is going to be faced with continuing medical treatment bills.
If your doctor does not recommend a lot of additional treatment, can she at least make a case for something less than a full recovery?
Any mention of permanency, partial bodily disability, disfigurement, incapacitating injury, continuing loss of mobility, or permanent scars will add value to the claim
7. Your medical and claims history, prior accidents, prior injuries or treatment of the same area of the body
You don 't get any bonus points if you have never before injured the same body parts or have never before made any claims for personal injuries. BUT, you do lose value for each of these things if you have been injured before, and the seriousness is ranked below, with the most serious considerations first, leading to those facts that will not cost you as much in diminution of value.
8. Impairment of quality of life
- Ongoing treatment of the same area of the body is the most deadly in diminishing the value of a claim.
- Next is completed treatment of the same area of the body within the past two years (note here that at some point the prior treatment can be a positive inasmuch as you may have been left more susceptible to future injury, as-for just one example-when the injury may have healed with weakened scar tissue, which lacks the elasticity of original tissue, and thus will rupture with less trauma required).
- Having made multiple claims-even if justified, makes you look like you are using the tort system as a way to win the lottery.
- Having prior accidents or injuries that affected different parts of the body. This should not be allowed to come into consideration as affecting value.
- Having prior injury and treatment that terminated over two years ago and for which you have been without symptoms since. This will not be a negative, but, as noted above, it could be a positive.
Loss of consortium (impairment of the marital relationship due to the injury) will not increase the "specials multiplier factor" at all. The following factors add their own value to the claim, of course, but they will not cause the specials multiplier factor to increase much, if at all (unless there is a severe case):
9. Quality and persistence of pain suffered
- Loss related to reduction or the impairment of one's quality of life;
- Loss related to reduction or the impairment of one's ability to enjoy family, social and/or educational experiences;
- Emotional damages resulting from any and/or all of the above.
If you have a doctor's report-or better yet, a narrative from a pain clinic-that says you have been suffering debilitating pain, you can increase the "specials multiplier factor" by one full point.
10. Quality and thoroughness of your medical records
You can increase the "specials multiplier factor" by another full point if you have excellent medical records in which the doctor includes a complete narrative and prognosis, together with a history of your input.
Conversely, you can decrease the "specials multiplier factor" by at least one point if your doctors' reports so not support your claim because they lack any key element of proof, such as tying your pain to the accident (medical causation)
11. Lost wages
Absent unusual circumstances, lost wages will not influence the "specials multiplier factor" one way or the other. The total amount of lost income due to work missed is compensable, but it will not drive up the multiplier unless there is a lot at stake.
But the "specials multiplier factor" could be increased if you have suffered a reduction of pay because of a disability that has reduced your earning potential.
12. The legal or social stigma attached to the tortfeasor's acts
In order for this to be any kind of a factor at all, the adjuster would have to be faced with the prospect of having to defend his insured's acts before a jury. Unless his actions were truly heinous, the adjuster is not afraid of having a judge of attorney arbitration panel hear the case because they will not be moved in the same way as the jury.
In any event, it is likely that the defense can keep out most of the damaging part just by stipulating to liability. Thus the damaging information would not come into evidence.
By the way, if the social impact of the tortfeasor is so negative that it merits an increase in the specials multiplier factor, then it is also likely the matter is too serious for you to handle yourself, and you should seriously consider consulting a SettlementCentral.Com attorney
Just the same, it never hurts to bring up to the adjuster the fact that his insured did commit an act that is frowned upon or illegal, and hence the implication is made that your claim has some additional value because of such an act. Examples would be such things as committing a criminal act, DUI, hit 'n run, reckless driving, etc.
13. The Insurance Company and Adjuster you are dealing with
Let's face it: some companies are more difficult to settle with than others. You can ask your state Insurance Commissioner for the statistics as to which companies most frequently go to trial, as opposed to settling their cases. We believe you will find a difference between the companies. Consider, for example, the settlement versus trial percentages of Allstate as opposed to Amica.
If you are dealing with a company with a history of being difficult, you can expect that either you will spend more time in documenting everything, and still end up with a marginal settlement, OR you will consult an attorney about possible representation. Unfortunately, some of the "hardball" tactics are directed mainly at attorneys, and you might find that the threat of hiring an attorney will not bring any increased offer to the table. The insurance companies know that even in arbitration, attorneys cannot afford to give full attention and competent representation in these small-to-medium cases.
A far more telling issue might be to ask about the nature of your relationship with the insurance adjuster. While it should make no difference in a perfect world, the personal whims of the adjuster can-and do-often color the results in any given case. A calm, professional demeanor, coupled with a personal touch and some humor and respect will go a long ways to increasing the specials multiplier factor by a half a point to a full point.
On the other hand, you stand to lose a lot more than that-from one point to one and a half points in the specials multiplier factor-if you have grossly insulted the adjuster. The pleasure you derived from "really letting him have it with both barrels" will be short lived because in the end you will lose out in settlement value.
14. The quality of your presentation
What is the nature of the quality of your presentation of your claim? Is it thorough, organized and professional?
What is the social difference between the tortfeasor and you? The adjuster will be weighing which of you is more credible and/or sympathetic?