If you're filing a personal injury claim and can show that the effects of the accident have had any long-lasting or permanent effect—often referred to as a “residual injury”—such as scarring or joint stiffness, the amount of your damages award can go up significantly. The simple (and perhaps obvious) reason for this is that even a relatively small residual disability or disfigurement can impact your life over a long stretch of time. And naturally, the more serious the effect on your life (work, home, or recreation) the greater the impact on the value of your personal injury settlement.
Let's look at a few common types of residual injuries, and how you can make sure any lingering injuries are documented.
Scars and Disfigurement. One very common permanent residual injury is scarring, from the original injury or from necessary medical treatment. Particularly extensive or prominent scarring can translate to quite a lot in damages, both for cosmetic reasons 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 though slight loss of mobility, and so might justify higher damages.
Right or wrong, compensation for disfigurement go up if the scarred part of the body is normally visible. Scarring that is usually covered by clothes is not typically considered as impactful. And, while insurance adjusters are usually savvy enough to know that they should not openly discuss social biases (especially not directly with an injured person), be aware that certain prejudices can affect the settlement judgment of some insurance companies when it comes to scarring. A woman who receives a permanent scar is often considered to have been affected by it more than a man with an identical scar might be. Ageism may rear its ugly head here, too. A young single woman might be compensated more for scars than an older married woman would be.
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.
If you have had such an injury, your claim for damages should indicate your injury is permanent and therefore deserving of 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. Learn more about how the nature and extent of your injuries affect claim value.
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).