How the Seriousness of Your Injuries Affects Settlement Value

Perhaps no single factor affects a personal injury settlement more than the type (and extent) of the injuries you suffered in the underlying accident. The cost of your injury-related medical treatment is often referred to as "medical special damages" (or simply "specials"), and it's a key indicator used by the insurance company during settlement talks.

Let's look closer at the different kinds of injuries that can form the basis of an injury claim, how they can affect claim value, and more. (For a related discussion, check out why the type of medical treatment you receive matters.)

Type of Injury Sets the Claim Valuation Bar

It's common sense that if you're making a personal injury claim, you can probably expect the value of that claim to rise alongside:

• the seriousness of your injuries, and
• the amount of medical are and healing time that'll be necessary to get you back to a pre-injury condition.

This is the way insurance adjusters approach injury claims. The first step typically involves dividing a claimant's injuries into two main categories:

• "soft tissue" injury, the main evidence of which is usually the claimant's descriptions of discomfort, pain, and limitations, and
• "hard" injury, which can often be specifically detected through medical examination.

"Soft Tissue" Injuries

Injuries such as a sprained or strained back, neck, knee, or ankle are referred to as soft tissue injuries because they only involve muscles and other soft connective tissue. One of the most common examples here is whiplash-type injuries after a car accident.

Fair or not, insurance companies place a lower value of soft tissue injuries, in general. The reasoning here is that soft tissue injuries usually aren't permanent or life-altering, regardless of how painful they may be. And insurance companies also know that, should a personal injury claim ever get to court, it would be difficult for an injured person to definitively prove the nature and extent of their soft tissue injuries.

How Do I Prove Soft Tissue Injuries?

Soft tissue injuries typically don't show up with diagnostic tools the same way other traumatic injuries do (a broken bone on an x-ray, for example).

This doesn't mean whiplash-type injuries, sprains/strains, and deep muscle bruises aren't painful, or that they can't have a big impact on the injured person's lifestyle.

It does mean that, without hard-to-refute proof like an x-ray of a broken bone, insurance companies and defense attorneys can make a variety of arguments as to why you're not as injured as you claim to be. This is why, after any kind of accident, it's crucial to get prompt and thorough medical treatment for even the slightest indication of injury. Not only can a health care professional help aid your recovery, but a doctor's medical records will serve as stronger proof of an injury than you simply asking that your claims of injury be believed.

"Hard" Injuries

Hard injuries are considered more serious than soft tissue injuries, and they're given a higher valuation.

So if you can point to anything in your medical records identifying an injury actually observed by the doctor by X-ray or by other test, or describing the injury as something other than a strain or sprain (a compressed or pinched nerve, for example, or a joint separation), the value of your claim goes up.

Likewise, an injury requiring any physical repair or intrusive examination by a doctor—from stitching a wound to setting a bone to arthroscopic examination of a joint—increases the value of your case regardless of all other considerations.

Let's look closer at a few categories of hard injuries.

Broken Bones

If X-rays show that any bone has suffered even a minor break, including a chip or crack, the numbers in your case will immediately move higher. As with all other injuries, the more serious you can show the break to be (in terms of impact on your life), the higher you move up the compensation ladder.

Head Injuries

Any head injury comes with a possibility of long-lasting effects. Insurance adjusters know that head injuries can linger, and that symptoms can recur after recovery seems to be complete. A head injury almost always increase a claim's value, and it speeds the settlement negotiation process along, because the adjuster wants to settle before bigger bills related to the injury might be incurred.

If you suffered any kind of head injury, check your medical records for any notation of the injury: concussion, a period of unconsciousness, however brief, or dizziness, disorientation, or nausea. Make specific mention of it in your claim even if other injuries seem more serious. And if you have any long-term effects (such as continuing headaches or dizziness), report them to your doctor and emphasize in your claim that you're still suffering from the effects of your head injury.

Learn more about head injuries and settlement value.

Separations, Dislocations, and Ligament Tears

Whenever a doctor describes your injury with a name other than a sprain, strain, or bruise, it's typically considered more serious. Joint dislocation or separation gives the impression of great pain and delicate recovery, whether or not it was actually more serious than something that might be described as a sprain. Same with the word "torn" for a ligament or cartilage. A tear is considered more serious than a stretch or strain or sprain, even though the treatment and healing time may be exactly the same.

Spinal Disk/Vertebrae Injury

Movement or displacement of a spinal disk or of the space between vertebrae sounds more serious than "strained neck or back." Insurance adjusters often award more compensation to claimants who describe neck or back injuries in specific medical terms rather than simply saying "strained," even if it's exactly the same injury.

Emergency rooms and orthopedists usually take X-rays of the area of the spine—lumbar or lumbosacral (lower), thoracic (middle), or cervical (upper)—in which an injured person complains of pain. Those X-rays may reveal some slight abnormality either in a disk or in the space between vertebrae. Vertebrae are described by reference to the number of the vertebrae in question, such as "slight narrowing in L4-L5 spacing."

If your medical records include any mention of this kind of abnormality in a numbered vertebra, repeat that diagnosis word-for-word in your negotiations with the insurance company, as a way of demonstrating the seriousness of your injury, regardless of how much or how little treatment you received.

"Pain and Suffering" and the Severity of Your Injuries

With most injury claims, the most difficult part of figuring out fair compensation is putting a dollar value on mental and physical "pain and suffering." Since that's a large part of what the insurance company's personal injury settlement formula attempts to do, it stands to reason that the more serious the injury, the higher the multiplying number that gets plugged into the formula. And the way insurance adjusters begin looking at pain and suffering is by connecting types of injuries with levels of pain.

Of course, this isn't very scientific. A sprained ankle can sometimes be more painful and persistent than a cracked ankle bone. Still, insurance adjusters use the type of injury as a starting place in deciding what numbers to plug into the damages formula when making a settlement offer. If your injury fits into one of the more serious injury categories described above, this typecasting can work to your advantage. But if your injury is normally typecast as less serious, then you have to show through other means that your injury did indeed cause significant pain and suffering.

You might want to keep a daily journal in which you record the impact your injuries are having on your mental and physical well-being. Get into the habit of describing any pain, physical limitations, trouble sleeping, depression, and anything else you're experiencing as a result of your injuries.

How to Prove the Seriousness of Your Injuries

It all starts with your accident-related medical treatment and the records of that care. Proving the seriousness of your injuries means:

• communicating all of your pain, discomfort, and any other injury-related effects to your doctor and any other health care professional who's treating you
• making sure your medical records include mention of all of those complaints, and
• building a medical record file that includes as much verification and legitimization of your injuries as possible.

Imaging tests like x-rays and MRIs are crucial here, as are a doctor or specialist's notes interpreting what the images and results show. In general, if your medical records include a health care professional's observation, diagnosis, or at least mention of most of your injury-related complaints and claims, you've gone a long way toward proving the seriousness of your injuries.

The "pain and suffering" journal we discussed in the previous section can also help fill out the picture of the seriousness of your injuries, and how they've affected your life.

Of course, you don't need to figure out on your own the best way to prove your injuries and present your best case. After any kind of accident that looks like it was someone else's fault, it might make sense to discuss your situation—and your options—with a legal professional. Learn more about finding the right injury lawyer for you and your case.

Parts of this article have been excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).