Insurance adjusters are paid to low-ball car accident victims. As a New Port Richey Trial Attorney for 18 years, I’ve negotiated countless automobile accident personal injury claims. These negotiations take place with insurance adjusters if a lawsuit has not been filed, and with a defense attorney once in litigation. Whether an adjuster or attorney, the goal for the insurance company is the same: Pay as little money as possible to the injured victim. Part of negotiations will involve the insurance claims adjuster arguing why my client’s case is “weak,” and why the insurance company is not offering more money to settle the matter.
Over the next few days, I am going to address 3 common excuses insurance companies make for a low ball offer of settlement, and how to turn these into strong points for a client whom has suffered auto accident injuries. Today’s subject: Degeneration.
The MRI and/or X-Rays Show Degeneration
This one has to be at the top of the list. Once an injured person brings a car accident claim, insurance companies know that they are not responsible for medical treatment and other complications that are solely pre-existing. Therefore, insurance claims adjusters will find any way to argue that it was not the accident that caused an injured client’s losses; rather, that the condition already existed.
In order to make this argument, adjusters will point to a post accident MRI and/or x-ray study that shows some level of degeneration to the shoulder, spine, knee, intervertebral disc, and other areas that are the source of a client’s pain complaint. I am very quick to respond to this frequently bogus “problem” by making one or more of the following counter-arguments.
1) Clinical Correlation! Adjusters love to completely ignore something medical providers call clinical correlation, which is essentially an analysis between an event (auto accident), and an objective diagnostic study (MRI). I do not care how much “degeneration” an MRI scan shows, because the issue comes down to whether or not the auto accident is causing the pain, the need for medical treatment, and/or the lost wages. Think of clinical correlation as cause and effect. If a client’s pain and need for treatment started only after the accident, then the trauma from the accident can be shown to be the cause (regardless of how much degeneration there is on a scan). Interestingly, adjusters will argue that slight degeneration proves a preexisting injury even when a client lacks even a remote history of medical treatment prior to the accident.
2) The vast majority of all adults will have some degree of degeneration in their spine or joints. As we age, everyday “wear and tear” causes a degree of degeneration. By analogy, think of a well maintained car with 15,000 miles. The car runs perfectly, and has no need to go to the shop because there are no symptoms (e.g., a knock in the engine). Still, if we tore the car apart, we might find where a rock has dinged it, or where the engine shows minor signs of residue around the block. The same is true with a person. A healthy person walks around with these signs of normal aging (degeneration), but unless there is some disease process or trauma, there is no need to seek medical treatment. I have seen radiology reports that show “degeneration” in clients as young as 15 years old! The reality is that a showing of degeneration is commonly of no significance whatsoever to the client’s symptoms or need for treatment.
3) The final point to address is those times when clearly a client’s degeneration is severe, and possibly he or she has even needed preexisting medical treatment. An attorney with trial experience will be well familiar with the law in this area. There is a legal expression known as the “Eggshell Plaintiff,” which means that the defendant takes the plaintiff as he finds her. By example, let’s assume that a client is rear ended in what appears to be a fairly minor impact. Let’s further assume that injuries would have been unlikely for someone with a normal healthy spine. However, your client in this minor impact had an extensively weakened spine due to degeneration. If the client’s preexisting condition made her more vulnerable to injury, and even a minor accident has caused the symptoms and need for treatment, then the defendant is still responsible for the additional pain caused by the accident, as well as other losses. There is a standard jury instruction on this point, which I typically refer to as the “preexisting physical defect” instruction. Therefore, just because a client had a “bad back” prior to the accident, that does not mean that he or she does not have a claim. (NOTE: I actually did an entire blog on the subject of handling preexisting back injuries, which can be found by clicking here)
When an insurance adjuster argues that a claim is “not worth much” due to “preexisting degeneration,” it is vital for a client to have an experienced personal injury attorney that knows how to respond. Many times, the insurer’s argument is little more than a red-herring, and if handled correctly by the claimant’s attorney, can even be turned into a strong point of the claim.