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, your compensable losses ("damages") 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, 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 as part of your case.
Scars and Disfigurement. One very common permanent residual injury is scarring, whether 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 (albeit slight) loss of mobility, and so might justify higher damages.
Right or wrong, compensation for disfigurement tends to 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 may be deemed more affected by it 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 cosmetic surgeon for an opinion about whether your scar could be removed, and how much such a procedure might cost. You can then include both the cost of the examination by the cosmetic surgeon and the potential cost of the cosmetic procedure to the medical expenses associated with your case, and in your demand letter to the insurance company.
Back or joint injuries. In general, you will most likely suffer some measure of permanent long-term or permanent effects (even if slight) if the underlying accident caused:
The pain may subside and the injury may stabilize—or "resolve" as doctors like to say—but there is a medical likelihood that some pain, discomfort, or lack of mobility will continue or will reoccur, especially as you age.
Your claim for damages needs to clearly indicate when an injury is permanent and therefore deserving of higher compensation. 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 (meaning "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.
This article is excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).