Evaluation of Pain and Suffering
Time is sure going by fast. Before we get in to the
subject matter of this month, we have open new sections and pages in the
website, be sure to check them out. Our new sections are:
Submit a Question: This section will allow visitors to post
a question regarding a claim (something not cover in the site), and get an
answer from Casey or Hector (depending in the complexity of the issue). Each
question can be rated, and other insurance professionals are welcome to add
Best Carrier: Which is the best carrier? Simple questioner
that reveals the ranking of the top 50 insurance companies out there. There are
no results posted yet because this section if fairly new and there has been not
enough postings to have an accurate result. We are very close. If there is
enough submissions for next month, our newsletter will announce the top 20
Rants & Raves: Here, consumers are encouraged to post their
claim experience. How are insurance companies treating the customer when there
is an actual claim? We also encourage positive experiences. Which insurance
companies are doing a great job in this area?
Accident Videos and Photos: Many of our visitors are
looking for car accident videos or photos. We have opened it up to every one who
finds a good picture to share it with everyone else. We have also provided the
opportunity to share good videos found on YouTube, Google video, yahoo videos,
Pain and Suffering
This is perhaps one of the most obscure subjects of
insurance. Insurance professionals have their own way to address the evaluation
of someone’s pain. Tort and Equity and Remedies Law have some guidelines but
sometimes they are not very clear either. So to answer the question, we will
look at both, the practical aspect of it (the insurance adjuster perspective),
and the theory or legal aspect of it. This newsletter will discuss the issue
from the perspective of the adjuster. The next issue will this same issue from
the perspective of the lawyer (legal theory).
Insurance Adjuster Evaluation
Insurance adjusters evaluate pain and suffering by
looking at several factors. They look at the original impact (how hard was the
impact?), the type and severity of injury being claimed (broken arm v.
headache?), the treatment (did you go to the doctors?), the length of treatment
(did you follow the directions of the doctors?), and the medical records (how
fast did you get better or did you get better?).
How hard was the
If the accident was of substance, not a low speed
contact, the insurance adjuster will consider adding value to the original pain
and suffering. Insurance professionals use imaginary scale when dealing with
this point. They attribute more pain to harder impacts for the days close to the
accident. In other words, the further along you are in the treatment the less
likely they will be willing to add value to pain.
This is a questionable approach, but in practice it is
what it happens. An accident with a total loss on it, should receive more
compensation for pain and suffering than a low speed accident (other things
Type and Severity of
The more severe the injury the more the adjuster will be
able to increase your offer. But what is a severe injury? This is where the
dispute gets heated. Insurance adjusters dismiss soft tissue injuries as “lower
pain” lower value claims. Soft tissue injuries can be very subjective; any one
can claim back lower pain and neck pain. Not everyone can claim a broken arm
without some actual prove. Injuries that are objective (the ones you can
confirm) will be worth more than those that are subjective (the one that you can
claim without being able to substantiate with objective findings).
Treatment and length
Did you go to the doctor? Most insurance companies will
not even settle with you if you do not go to the doctor at least one. Their view
is this: if were injured and in pain, you would have gone in and get check out.
Since you did not, then you were not injured. There are many problems with this
analysis but it happens all the time. Even if you have a job that does not allow
you to go in, then insurance company will not buy that excuse.
The length of treatment is critical. Did you treated for
a week or for six months? The longer the treatment the more your claim is worth.
However, insurance companies dislike this idea. They have data bases comparing
the average length of medical treatments. If your injury does not grant an
average amount of say six months. The insurance company will decline payment for
the medical bills. But even if they agree to pay for those “above average”
medical bills, they will not consider them when making a pain and suffering
evaluation. It is important to show that there was not “over treatment” or there
was some kinds of actual and justifiable reason (a doctor saying that you need
The next aspect they will look at is if you have
continuity when treating your injury. If here were any gaps on treatment,
adjusters will apply strict scrutiny to all your medical records. More than two
weeks of treatment will be disputed (unless the doctor prescribes this).
Adjusters do not come out and say it, but they will question if you were re
injured and you are trying to claim this as part of the accident.
Gaps of treatment can really hurt a claim. Having long
periods of non treatment shows recover (or at least that is what the insurance
company seems to think). So an injured party or the attorney must make sure
there is a rational explanation of why there is a gap on treatment before trying
to settle. The adjuster will bring it up as a point of contention.
Directions of the Doctor
Did you do what the doctor told you? Did you buy and
take the medication prescribe? The injured party has a duty to do everything in
their power to get better. If the doctor prescribed an orthopedic chair, did you
buy it or you are not following instructions. The adjuster will not come out
tell you that they are taking “20%” of the pain and suffering award because you
did not follow the doctor’s recommendation, but they will take it into account
quietly. If you were supposed to be offered $10,000, the will only offer $8,000
without out brining that issue up. It is always a good idea to follow the
doctor’s advice anyway.
The insurance adjuster will review every single record
and document your progress (progress not decline). They will write down dates
that you said you felt “pretty good”, “feeling better”, “80% better”, any/and
all comments you make (or write) that indicates you are better. They are looking
to see if you are just treating to inflate a claim or you are treating because
you are in pain!
Adjusters are good about picking up other things like:
“in August 22 you said that you mowed the lawn and that you were in pain after
that” we do not owe you for the being re injured after that date. This is
technically untrue, they need to put you back in the situation of no pain (not
august 22), but they can legally discount any exacerbation of the injury.
When dealing with medical records. You need to read
those records before submitting to the insurance company. You can document the
opposite. The times that you say “on July 3rd I went in because my
knee was hurting and I could not walk”. The adjuster will not point that out.
The adjuster will take the factors into account and will
probably discuss with his manager and coworkers the value of the claim. They
will compare what other similar claims have settle for and will establish a rage
of negotiation. It would be something like this “the low range of settlement
is $5,000 and the high end is $10,000”. The first offer will always be lowest
$5,000 (unless there is different information that could affect the claim. I.e.
Good luck, and the next time we will discuss the lawyer
way to evaluate and settle pain and suffering.
Visit our home page.
Read more about Insurance Coverages.
In our next issue, we will cover how lawyers evaluate claims and how they give value to "pain". Our next issue will be delivered on or about October 20th.
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