When it comes to personal injury cases, you generally have to prove two things. First, you must show that someone was negligent. That doesn't simply mean that an accident happened. Accidents happen all the time, and sometimes, it's no one's fault in particular. Basically, you have to show that someone did something wrong - like blowing through a red light or turning left in front of oncoming traffic. Once you have established fault, then you have to prove that you were injured as a result of that person's negligence. Therefore, just because someone was negligent doesn't mean you have a claim. You must also be injured. Generally speaking, your injury must be appreciable or the insurance company adjuster isn't going to offer you very much.
There is basically a continuum of injuries that can be broken down into several categories:
1) Basic soft tissue injuries (sprain/strain) that heal over time.
2) Soft tissue injuries that don't completely heal, leaving some measure of residual injury.
3) Very painful injuries that don't require surgery but aren't helped much by physical therapy and/or medication. In some cases, pain management injections are necessary.
4) Bad injuries that don't resolve over time and surgery is recommended - but the injured party chooses to live with the pain and manage it versus having the surgery.
5) Bad injuries where the injured party actually had surgery and healed properly.
6) Bad injuries where the injured party had surgery but will still have residual issues.
So if you are injured, how can you prove it?
1) Take photos of visible injuries. Telling the insurance company about your bruising, cuts, scrapes is good, but showing them the injuries is even better. Also, take photos over time, showing the progress (or lack of progress) of the injury healing.
2) Soft tissue cases (sprain/strain) are very hard to prove because there is nothing to show. You can't point to an image on an xray or other imaging tool. You can't say, "See, there's my injury!" Therefore, your behavior becomes very important. If you are claiming a shoulder injury, don't post videos of yourself doing push-ups on the internet! How the accident affects your daily life activities is the best way to "demonstrate" your injuries to others. The severity of the impact will help others understand your injuries. If there isn't much damage to your car, the insurance company (and most juries) won't give you much for such claims. On the flip side, if your car has moderate to severe damage, others will more easily believe your claim of injury.
3) If you have a tear, disc bulge, or other serious injury from the accident, you will definitely need an MRI or CT scan to prove the injury. Negative findings will be used against you. Positive findings will be viewed with suspicion by insurance adjusters, especially if (a) you are older than 40 years of age, (b) if you have a previous accident, or (c) previous health issues. Folks over 40 years of age often have orthopedic issues simply due to the aging process. Having disc bulges in your neck or back is something common, even for people who have not been in an accident. If you are relatively young, most people won't expect such serious issues. Therefore, if you are 21 years old and have a serious disc bulge in your neck, that would certainly be unusual.
4) Also, if you have significant image findings and/or significant injuries, your past medical records will definitely come into play. The insurance company will want to see your past records to see if there are any similar complaints in your past. I hate to say this but many people try to "pull a fast one" on the insurance companies by claiming injury to body parts when, in fact, they had the same issues before the accident. If you are interested in committing insurance fraud, please DON'T call my office! (Disclaimer: I am NOT encouraging insurance fraud!) By the same token, if your past medical history is devoid of similar complaints, that will play in your favor. Also, if your complaints surfaced immediately after the accident, that is helpful to show proof of injury. If the police report and/or ER records show complaints, that is helpful to your case. In contrast, complaints that surfaces weeks or months after an accident are very difficult to connect to the accident and are often viewed with suspicion.
Proving injuries in a personal injury case is a tricky affair. You have to use objective proof, documentation, photos, circumstantial evidence, corroborating evidence, etc. A helpful personal injury lawyer can guide you and help you understand how to prove your injuries.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,