CORONAVIRUS UPDATE: What We Are Doing to Protect Our Clients

Finding Every Element of Value in a Claim

Counting DollarsThere are many different steps in a personal injury claim and many different things that need to be proven in order to achieve a full and fair resolution of the claim.  Injury victims who may try to resolve their claims on their own or who may retain inexperienced attorneys to represent them may end up being shortchanged in their claim results if all the elements aren't thoroughly examined and proven.  The insurance companies certainly aren't going to do this for them and will, in fact, try to disprove these elements to save money on claims payments.  The three primary elements that need to be proven are:

Liability – Who is legally responsible for causing the injury?  If the injury incident was a motor vehicle collision, this would certainly include the negligent driver, but perhaps also the owner of the vehicle the negligent driver was operating, perhaps the employer of a negligent driver who was on the job, perhaps the manufacturer of a defective vehicle, perhaps a city or state responsible for a defective roadway, and maybe others.  If the injury incident was a slip-and-fall injury in a store, then it would certainly include the business, but might also include the owner of the property, a rental or property management company, and others who might be responsible for the condition of the property that resulted in injury.  Liability proof addresses both the negligent actions that caused injury and the relationships to the incident that legally connect responsible parties – the defendants – to the incident.

Causation – Did the incident cause the injury?  Proving causation may involve discussions of physics and "biomechanics" to establish that the forces of an auto accident, for example, were sufficient to prove the injuries that are claimed.  It may involve discussion and proof of similar prior injuries that the claimant suffered and whether or not – and to what degree – those earlier injuries were still symptomatically active at the time of the incident.  It may include reviewing and addressing pre-existing medical conditions that made the injury victim more vulnerable to being injured by the incident.  Proving causation connects the negligent defendants responsible for the incident of being legally responsible for the injury victim's losses due to the incident.

Damages -- What is the value of the injuries?  This is typical – though not always – the element of proof in a personal injury claim that is the most complicated to thoroughly prove and to get auto insurance or other insurance company to accept.  The simple reason why is that this is where things get turned into dollars. "Okay, our negligent driver rear-ended your client while they were stopped at a red light. We're not going to be disputing liability. . . .  Okay, the impact left your client's vehicle looking like a collapsed accordion.  We realize this was a big impact that was sufficient to cause injury. . . .  But really, your client should have healed completely after a few pain pills and a couple weeks of rest. . . ."

An experienced personal injury attorney will recognize that all three elements – liability, causation, and damages – are crucial to proving an injury claim, but that the damages element is where the investment of additional effort and time is most likely to pay off in the long run for a client. It's where the value of the claim is established.  And the only way to find every element of value is to put out the effort to look.

Damages come in different categories.  Two important divisions are between "special" and "general" damages and between "past" and "future" damages.  Special damages have a negative economic impact on an injury victim – sometimes they're called "economic" damages.  Sometimes special damages are very specific in their value – a $200 out-of-pocket co-pay for an emergency room visit has exactly $200 in "value" for the purpose of calculating damages.  At other times special damages may just be estimated – a medical procedure that is likely to be needed in the future can be estimated in value according to its current cost.

General damages are those without a direct economic impact and include things like the "pain and suffering" associated with the particular injury that was suffered and whatever ongoing symptoms are related to it.  General damages also include things like a spouse's loss of consortium claim, the embarrassment from an unsightly scar left behind by the injury, and the injury's negative impacts on the victim's enjoyment of life in general.

Past and future damages are just what they sound like – the past damages that the victim has already sustained from the time of the injury incident through the present versus the future damages that the evidence shows they are likely to sustain from now into the future.  This applies both to elements of special damages – past wage loss vs. future loss of earning capacity – and of general damages – past pain and suffering from a permanent injury vs. the future pain and suffering from that same permanent injury.

An experienced personal injury attorney will look at each of these different types of damages to determine which ones apply for a particular client's case and what types of proof are needed for each applicable damages element.

Special Damages -- Medical Bills

Bills for medical treatment are usually the first and most important element of special damages for more personal injury claims.  The treatment must be reasonable and necessary -- and, of course, related to an injury that resulted from the incident like an auto accident that is the basis of the personal injury claim.  And the charged amounts must also be reasonable – typically by comparison to the "going rate" charged for the same treatment or service by other medical providers.

Some medical bills may be for one-time services, such as an emergency room visit immediately after an injury in a car crash.  An attorney will typically request copies of these one-time service bills immediately, so as to allow extra time to review them thoroughly.  Other medical bills may be for a course of treatment that takes place over a period of weeks or months, such as physical therapy or chiropractic care.  Often copies of these charges are only requested occasionally or when treatment is complete in order to minimize record copy charges for a client.  Whenever they may be collected, a careful review of the medical bills is necessary to confirm that the charges are reasonable and are for treatment connected with the personal injury.

Many of our medical bills, of course, may be submitted to someone else for payment, such as a health insurance company or a med-pay provider under the injury victim's own auto insurance policy.  An experienced personal injury attorney will be able to advise clients how, when, and to whom they should submit their medical bills for payment in order to achieve maximum benefit to the client at the bottom line.

Special Damages -- Wage Loss/Loss of Earning Capacity

Many personal injury victims will need to take at least some time off work in order to recuperate from their injuries.  Unfortunately, other injury victims may lose extensive time from work or even suffer permanent injuries that leave them unable to return to the jobs they had, or even return to any kind of work at all, suffering a loss of earning capacity.

For the simple case of an injury victim whose doctor told him/her to take a week off to rest and recuperate, proving this element of special damages may just be a matter of collecting the doctor's records with the time-off-work note and matching it up with the injury victim's pay stub show a week of sick pay or vacation time being used.  The same pay stub shows their hourly or salaried rate of pay, and a little math quickly calculates their "past wage loss."

In cases where a personal injury victim has suffered a permanent injury and/or disability, however, this element of special damages may end up being substantially larger than other special damages like medical bills.  An experienced personal injury attorney will recognize the significant potential value of permanent injuries to a client's claim.  If it is a "past" loss, that is, if the client has already missed substantial time from work or been unable to return to work at all, then the proof of this will again be the medical records describing the physical reasons for the inability to work compared with work records establish the amount of time lost and its dollar value.

Situations in which an injury victim has been disabled from their current work, but still retains the ability to do other types of work, will often require the use of vocational rehabilitation specialists who have the ability to compare the injury victim's skills, training, and remaining physical abilities with other available jobs and to detail the re-training costs and likely differences in income between the old job and the new one.  Selecting the proper type of experts for this type of work is a key service that an experienced personal injury attorney can provide for the client.

General Damages

General damages – because they do not have an easy-to-understand dollar value like a medical bill does or a wage loss claim for 40 hours at $20 per hour does – is the portion of a personal injury claim's damages that usually takes the most time to describe and evaluate. It's also the part of an injury claim where an experienced personal injury attorney can often provide the most value enhancement for a client, simply by taking the time and being thorough in examining and evaluating each piece of the puzzle.

Many folks like to think that "figuring in the value for the general damages" is just a matter of taking the medical bills and multiplying by two or three or some other number to set the full value of the claim.  The insurance companies would certainly like us to believe that is the case – it's the main part of their thinking behind computer claims software like Colossus that try to take some basic "factors" associated with a particular injury and attach a "calculated" value to it.  But these kinds of overly-simple calculations – or the unknowable "black box" calculations from software like Colossus – will either unknowingly or intentionally shortchange many injury victims.  They simply don't fully take into account the many ways in which an injury impacts a victim's life.

"Pain and suffering" is probably the best-known element of general damages.  It is just what it sounds like – the negative physical and emotional impacts of a particular injury.  Most of us have experienced some form of physical injury -- perhaps even a serious physical injury -- and can at least imagine what it might be like to suffer a broken leg and go through all the negative experiences from that event and the treatment and healing time necessary to repair the damage.  Or a sprained back or knee, or other fairly common injuries.  Other types of injuries, especially severe ones, may be much harder for an average person – or an average insurance adjuster or average jury member – to relate to on a common-sense basis.  All these injuries, whether common or unusual, need to be explained thoroughly so that those folks responsible for evaluating the "pain and suffering" associated with the injuries can understand the full impact of the injury and put a full value on this element of damages.

"Loss of enjoyment of life" is another part of general damages that is often not fully described and, therefore, not fully included in claim value.  What impact has the injury had on a victim's home life?  On his/her social life, recreational activities, etc.?  An experienced personal injury attorney will ask all these questions in the initial meetings and discussions with a new client, then update the answers as time goes along and the client's injury heal (hopefully completely).  Turning the answers to these questions into an individualized narrative for an insurance adjuster (or a jury) immediately adds value to a claim by detailing this often-ignored element.

What impacts have resulted upon an injury victim's spouse that goes into a loss of consortium claim?  What duties under duress is the victim performing at work and home?  What emotional impacts upon a victim result from an injury that is disfiguring or disabling and permanent?  All these elements of damages are also elements of value in a personal injury claim, and an experienced personal injury attorney will take the time and effort to document, describe, and evaluate them in order to achieve maximum benefit for the client.

For more information on insurance companies, their claim tactics, and how an experienced personal injury attorney should deal with them, see:

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