How Long-Term Injuries Affect the Value of Your Claim
Long-lasting or "residual injury" can make your personal injury damages award go up significantly.
If you can show that an injury you suffered in an accident has left any long-lasting or permanent effect -- referred to as a “residual injury” -- such as scarring or back or joint stiffness, the amount of your damages award can go up significantly. The simple and obvious reason that even a relatively small residual disability or disfigurement can greatly increase your award is that you will suffer from it over a long time. And naturally, the more serious the effect on your life -- work, home, or recreation -- the higher your compensation goes (including payment for pain and suffering damages).
Here we'll look at a few common types of residual injuries, and how you can make sure any lingering injuries are documented.
Common Residual or Permanent Injuries
Scars and Disfigurement. One very common permanent residual injury is scarring, from the original injury or from medical repairs. Particularly large and obvious scarring can mean quite a lot in damages, both because of the cosmetic embarrassment it causes and because scar tissue can make an area of flesh less flexible. If there is scarring at any joint or in any other area of the body that flexes -- such as the webbing of fingers or toes -- it might cause a permanent even though slight loss of mobility, and so might justify higher damages.
The damages for disfigurement go up if the scarred part of the body is normally visible. Scars usually covered by clothes are not considered as important unless they are large enough to cause you embarrassment. Scars visible on hands and arms can be considered important if they are large enough that you feel the need to keep them hidden. And any scar on the face and neck -- even if small -- always increases damages.
Scarring is also one of the few areas in which women sometimes benefit by our society’s stubbornly resistant sexism. A woman who receives a permanent scar is normally considered to have been damaged by it far more than a man with an identical scar. Unfortunately, ageism may rear its ugly head here, too. A young single woman is often compensated more for scars than an older married woman, on the assumption that a facial scar may more strongly affect a young single woman’s social life. Insurance adjusters are usually socially aware enough to know that they should not openly discuss these biases, especially not directly with the injured person. Nonetheless, you should be aware that these societal prejudices do affect the settlement judgment of most adjusters.
One way to demonstrate to an insurance company how much your scarring is worth is to obtain a medical opinion about the cost of having the scar removed or repaired. Ask your doctor to refer you to a plastic surgeon for an opinion about whether your scar could be removed, and specifically ask how much such a procedure would cost. You can then include both the cost of the examination by the plastic surgeon and the potential cost of repair in the medical costs you use to figure how much your case is worth. Specifically, include the cost of scar removal -- whether or not you will actually undergo such a procedure -- in your demand letter to the insurance company.
Back or joint injuries. In general, if you have an injury to a disk in the spine, or a narrowing, displacement, or other damage to a vertebra, or a dislocation, ligament, or cartilage injury to any joint, you will most likely suffer some permanent effect, even if slight. The pain may subside and the injury may stabilize or “resolve” as the doctors say, but there is a medical likelihood that some pain, discomfort, or lack of mobility will continue or will reoccur as you get older.
Make Sure Residual Injury is Documented in Your Records
If you have had such an injury, your claim for damages should indicate your injury is permanent and therefore deserving higher compensation. And if you can get your doctor to mention in your medical records the possibility of some permanent or residual effect, you will have documented support for your claim. The simplest way to get your doctor to make a notation about permanent effects is to ask.
Toward the last part of your treatment, ask your doctor’s opinion about whether there is a likelihood (doctors rarely speak in anything more definite than “likelihoods”) that you may have recurring or degenerative (showing up later in life) problems as a result of your injuries. If the answer is yes, ask that the doctor note it in your medical records. And if the doctor asks why you want it noted, there is no reason not to say that you want it for an insurance claim you are filing against the person who caused your accident.
Even if your doctor does not note the likelihood of permanent problems, you are still permitted to raise the possibility in your injury settlement negotiations with the insurance company, just as you would mention future problems with any injury to a joint.
This article is excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo). For more on valuing your injury case, see the other articles filed under personal injury damages and compensation.