After almost two decades of dealing with bodily injury adjusters, one might think I have heard every possible excuse for denying or minimizing a bodily injury claim, but sadly, I hear new “arguments” regularly. Below is a discussion of some of the most common “arguments” that I hear, with some weapons to beat those arguments.
1. Low Property Damage/Mechanism of Injury
The most common argument that I hear from adjusters is that the property damage was too low for anyone to have been injured in this wreck. The adjuster sends me pictures of the property damage, which is barely visible, and a copy of the repair invoice, which is typically below $1,000.00. Adjusters know that pictures of vehicles with minimal damage and property repair receipts for under $1,000.00, tend to lead juries to agree that there was no way someone could have been injured in this wreck, but do not fear, not all hope is lost.
A common response that I give adjusters when pointing out that low property damage does not mean everything when it comes to the body that was inside the vehicle, is the egg carton example. The carton represents the car, and the eggs inside represent the occupants of the vehicle. If you drop the egg carton on the floor, most likely, there will not be any damage to the carton, but once you open the carton, you will see broken eggs inside. Just like, when you open the door to a vehicle that had minimal damage, you will still see “broken” victims inside.
I once had a client who was driving a really old truck; you know, the ones that were built to stand the test of time and there was no damage to his vehicle. He banged his head on the windshield and had severe headaches for weeks. He returned to the hospital and they did a CT scan on his head, where they found swelling in his brain. The physician performed an emergency procedure, where he drilled holes in my client’s skull, to relieve the pressure building up on his brain, and again, this was from a wreck where there was no visible property damage.
2. Gap in Treatment
This is another common adjuster argument, and it can also be exceedingly difficult to overcome. The magic number seems to be 2 weeks. Adjusters tell me, “Mary, if your client was in that much pain, there is no way they would have waited 2 weeks to get additional treatment.” Another attempt to minimize the claim, when there is a gap in treatment, is when the adjuster says, “Well, there was so much time between the visits to the doctor, there must have been something else that happened (intervening cause) that caused your client to be in pain again. Juries also tend to agree with defense attorneys who make these arguments.
Before we talk about some weapons against the “gap in treatment” argument, I do want to remind you how important it is to avoid a gap in treatment, if at all possible. Gaps in treatment give the adjuster ammunition to try to devalue your bodily injury claim, but they also delay your recovery time. It is especially important to follow your doctor’s treatment plan, as closely as possible, to avoid any gaps in treatment.
The simplest defense to this argument is that the doctor did not order the patient to follow up within two weeks. Sometimes, doctors prescribe a month’s worth of medication and order the patient to complete the medication, before returning. Also, when ending a therapy regimen, the therapist may decrease the number of visits to bi-monthly or even monthly visits.
Another successful weapon against the “gap in treatment’ argument would be other medical issues (if they exist), that kept you from treating. I had a client that was pregnant, when she had a wreck, and she tore a ligament in her knee. The ligament required surgical repair, but she could not have the surgery, while she was pregnant. There was a several-month gap in treatment, but the adjuster could not make the “gap in treatment” argument, as my client had a medical excuse, as to why there was a delay for the treatment.
3. Soft tissue injury
When it comes to arguments against extended pain and suffering, adjusters love to rely on the “soft tissue” injury argument. A soft tissue is anything in your body that is not a bone. This means that bodily injury adjusters like to argue that if you did not break a bone, you were not hurt that bad. That is a faulty argument.
When I was in high school, I played basketball. I went up for a shot and came down and rolled my ankle to the side and the back; I tore three ligaments; ligaments are soft tissues, not bones. When we went to the orthopedic surgeon, he told my parents, as far as pain and recovery time, I actually would have been better off to break my ankle, than to have torn the three ligaments.
It is more difficult to help jury members understand the pain of a soft tissue injury because soft tissue injuries are usually on the inside and even an x-ray cannot show a soft tissue injury. This is where it is helpful to have a doctor that can explain what is going on in the body and how these “soft tissue” injuries cause pain. When you are treating with your doctor, make sure to explain every ache and pain that you have! It is also helpful to keep a journal, with daily explanations of everything you have gone through, to help beat the “soft tissue/minimal pain and injury” argument.
It is always important to remember that the bodily injury adjuster is not your friend; they work for the insurance company. As most employees want to do well for their employer, most bodily injury adjusters want to do well for the insurance company; they want to succeed in their job. This typically means they want to pay out as little as possible, to help their employer keep as much money as possible. These “arguments” can help the bodily injury adjuster keep the money for the insurance company. Still, you can use some of the weapons listed above to beat those arguments and get the compensation you deserve.
As always, stay safe!