So the hospital CT scan or the MRI report says that you have a herniated disc. The claims adjuster will agree that you have a herniated disc and it was caused by the accident, right? Not necessarily so.
Below are the most common arguments that you may hear from an insurance claims adjuster in a personal injury case in an effort to pay you less money for your herniated disc injury.
1. Accident Was Not the Cause of Your Herniated Disc.
An insurance claims adjuster may argue that your herniated disc was not caused by an accident. If a jury believes that the Defendant’s negligence did not cause your herniated disc, then they cannot award you any money.
Even if your treating orthopedic doctor, neurologist or radiologist says that the herniation was caused by the accident, a claim adjuster may hire their own orthopedic doctor or neurologist who will review the MRI, the facts of your case, the medical records and conclude that the herniated disc was not caused by the accident.
I have represented many injured clients who were diagnosed with a herniated disc after they were in an accident where someone else was at fault. In the majority of cases, the orthopedic doctor or neurologist hired by the claims adjuster will say that the herniated disc was not caused by the accident.
The most common arguments that the orthopedic doctor hired by the insurer will make – in an attempt to support their position that the herniated disc was not caused by the accident – are that:
a. Based on the claimant’s age, the herniated disc pre-existed the accident.
Most orthopedic doctors will testify that many people who are 30 or more years old may have a herniated disc even if they do not have pain. If the claims adjuster argues that your herniated disc pre-existed the accident, then your orthopedic doctor hopefully will argue one of two things:
– You were as asymptomatic (had no symptoms) before the accident and the accident has aggravated the herniated disc.
This argument may work if you have no or a little history of pre-existing of the same area of the spine that you are claiming was injured in the subject accident. Generally speaking your case is stronger if you have no pre-existing injury as opposed to a pre-existing injury. In Florida, you may still be able to get money for pain and suffering if your doctor states that your back or neck injury is an aggravation of a pre-existing injury.
b. Delayed Treatment
If you waited an unreasonable amount of time to get medical treatment for your back or neck pain after your accident, the claims adjuster may argue that your herniated disc was not caused by the accident. There have been big jury verdicts where the claimant waited a very long time before seeing a doctor, but those are not the norm.
I settled a case for $100,000 where a motorcyclist was hit by a car and waited 6 days to get medical treatment. We claimed that his herniated disc was related to the crash in Miami, Florida.
I spoke with an independent orthopedic doctor – who does a lot of work for insurance companies – who told me that it is not a big deal that my client, who is 23 years old, waited 6 days following the crash to see a doctor.
Learn more about how gaps in medical treatment may affect an injury case.
c. No or Minor Damage to Vehicles Involved
If you were in a car accident, the claims adjuster may argue to your injury was not caused by the crash because there was no or very little property damage to the vehicle(s) involved. Although there is medical literature suggesting that this is not true, this is still an argument that you want to take seriously. It is one of the reasons that you want to take pictures of the damage to your vehicle, any property and any other vehicles involved following an accident. These pictures should be taken as soon as possible after the car accident.
Hopefully you doctor will testify, if necessary, that a herniated disc can be caused by things such as simple as sneezing or bending down to pick up a pencil. The medical literature that supports this.
2. You have a disc bulge, not a disc herniation.
It is not uncommon for a radiologist, orthopedic doctor or neurologist – hired by the liability insurer – to say that you do not have a disc herniation; rather you have a bulging disc. Their doctor may say this even if your treating radiologist, orthopedic doctor or neurologist say that you definitely have a disc herniation.
This is one of the reasons that it may be a good idea, in certain cases, to look at the MRI with your treating doctor in person. By meeting him or her in person, you may get a better chance to see the strength of his testimony. You may also want to ask him what he would say if he was hired by the insurance company and saw the same MRI. When it comes to medical diagnoses involving a herniated disc, there is often a lot of gray area.
You may even want to consider hiring an “independent” doctor to review the MRI CD with you. Generally speaking, a herniated disc is worth more than a bulging disc. Some “defense” doctors believe that disc bulges are so common and generally are not a serious injury and/or were not caused by an accident.
3. Your herniated disc is not a permanent injury.
Some doctors hired by an insurance company may say that your herniated disc is not a permanent injury. Though they may be wrong, take their opinion seriously because in Florida, in order to get non-economic damages (e.g. pain and suffering damages, etc.) in many – but not all– types of auto accident cases, you must prove that you have a permanent injury . Find out whether you can get pain and suffering damages in a Florida auto accident.
Ultimately, whether a jury believes that a herniated disc is permanent injury will come down to:
– Which doctor they believe is more credible; and/or
– Whether a jury believes that you are telling the truth in regards to the extent of your injury and facts of the accident.
Were you injured in an accident?
Check out some of the many personal injury cases in Florida that we have settled, including but not limited to car accidents, slip and falls, and cruise ships accidents. We want to represent you if you were injured in an accident in Florida, on a cruise ship or boat. If you live in Florida but were injured in another state I may be able to represent you as well.
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