Perhaps no single factor affects an injury settlement more than the type (and extent) of injuries you sustained in the accident. The amount of money you've spent having your injuries assessed and treated is referred to as "medical special damages" or simply "specials," and it's a key indicator in the overall personal injury damages formula that insurance adjusters use during settlement negotiations.
The difficult part of figuring out compensation for someone injured in an accident is how to put a dollar value on pain and suffering. Since that is a large part of what the damages formula attempts to do, it stands to reason that the more painful the injury, the higher the multiplying number that gets plugged into the formula. And the way insurance companies begin looking at pain and suffering is by connecting types of injuries with levels of pain.
Of course, this is not 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. If your injury fits into one of the more serious injury categories described below, this typecasting can work to your advantage. If your injury is normally typecast as less serious, however, then you have to show through other means that your injury did indeed cause significant pain and suffering.
The accident insurance adjusting business divides injuries into two main categories:
Injuries such as a sprained or strained back, neck, knee, or ankle are referred to as soft tissue injuries because they involve only muscles and other soft connective tissue. Insurance companies regard them as less serious than hard injuries and usually assign to them a damages formula multiplier of only one-and-a-half to three times specials (unless other factors bump that multiplier higher). Insurers reason that soft tissue injuries are usually not permanent or dangerous regardless of how painful they may be. And insurance companies also know that, should a claim ever get to court, it would be difficult for an injured person to prove clearly what the soft tissue injuries were.
Hard injuries are considered more serious and are awarded higher damages -- four or five times specials, and sometimes higher -- than soft tissue injuries. 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 for damages 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.
Categories of hard injuries include:
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 time someone suffers a head injury, there is the possibility that the effects of the injury will be much longer lasting than is obvious at first. Insurance adjusters know that head injuries can last a long time and that symptoms can recur after recovery seems to be complete. A head injury usually increases how much the claim is worth. And often it speeds the negotiation process, because the adjuster wants to settle before bigger bills related to the injury are 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 are still suffering from the effects of your head injury.
Separations, dislocations, and ligament or cartilage tears. Whenever a doctor describes your injury with a name other than a sprain, strain, or bruise, the injury is considered more serious -- that is, given a higher multiplier in the damages formula. Joint dislocation or separation gives the impression of great pain and delicate recovery, whether or not it was actually more serious than something called a sprain. The same thing is true for 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.
Wounds. If your injuries include any gash, tear, or cut serious enough to require treatment, that may slightly increase the value of your claim.
Spinal disk or 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 is 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 you find any mention in your medical records of such 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.
This article is excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).