Whiplash is an injury that occurs as a result of a sudden acceleration/deceleration force, commonly found during a motor vehicle accident. Usually, a stationary car is struck from behind, throwing the victim’s head and neck into hyperextension. A whiplash injury can affect both bone structures and the soft tissues that support the neck, such as intervertebral joints, discs, ligaments, cervical muscles, and nerve roots. Whiplash injuries can be costly, as healing is oftentimes a lengthy and complicated process.
Symptoms of whiplash vary, leading some skeptics to believe that it isn’t so much a real, physical injury than it is a money-making ploy. Investigative studies have determined that while there are always people out there trying to “game the system,” whiplash is legitimate. Symptoms can include stiffness in the neck, headaches, dizziness, burning or prickling sensations and neck, shoulder or back pain. Some cases even result in memory loss, difficulty concentrating, anxiety, irritability, trouble sleeping, fatigue and depression. In most cases, clients don’t feel the whiplash injury until several hours or a day or two after the impact. If there is tremendous pain immediately at the scene, that is usually an indication of a more severe injury such as a herniation or fracture.
There are many different kinds of treatment approaches for whiplash. One may be prescribed pain medication, nonsteroidal anti-inflammatory drugs, antidepressants, muscle relaxants or a cervical collar, which is generally worn for a few weeks. Oftentimes whiplash injuries require physical therapy, cervical traction or range of motion exercises to heal. Patients who are prescribed a cervical collar and range of motion exercises early on in their treatment are shown to recover more quickly than those who are not; immobilization may lead to stiffness, increased pain, muscle atrophy and decreased blood flow.
It is very important that a whiplash patient is educated about their injury, so as to avoid longer-term whiplash associated disorders. If they fail to follow doctor’s protocol and treatment course, they may actually cause more harm.
Important note: While whiplash injuries are indeed real and can cause serious injury, I hate to say that most insurance companies simply don’t place much “value” on such cases. They lump them into the “soft tissue” category. So while your pain may be very real to you, and your injury very legitimate, don’t expect much compensation from an insurance adjuster (or a jury for that matter).
Oftentimes, my clients are very concerned with what their case is worth. In their minds, it is usually worth a great deal. Part of my job is to bring my clients back down to Planet Earth. I will not make false promises or inflate your expectations. No one will ever be able to see the case through your eyes. That said, you must bring yourself out of that mindset. You can think your case is worth a million dollars, but it doesn’t really matter what you think. What matters usually is what a jury is apt to think, or before that, what an insurance adjuster assigns to the case. However, people still ask me, “How much is my case worth?” Well, there is no magic formula.
The best way to determine how much your injury claim is worth when you are injured in a car accident is to look at how an insurance company would value your claim. An insurance carrier will first look at the types and amounts of damages suffered and then at percentage of fault.
This includes medical expenses incurred to treat an injury, such as doctor’s visits, hospital expenses, emergency room expenses, fees for chiropractic care, physical therapy and any type of medical devices that may be needed for your recovery, such as neck braces or crutches. If you don’t have health insurance, there are other ways to get medical treatment.
Medical expenses are typically used as a benchmark for determining the reasonableness of damage awards. Keep in mind you may have a very serious injury, but without medical records and expenses, your case may very well be compromised. That is why I cringe when clients call me six weeks after an accident. They tell me of the serious injuries they sustained, yet they still have not seen a doctor!
Future medical expenses are recoverable if the injured party can show that he or she is likely to need continued medical care as a result of the accident or injury. This amount may be determined by the advice and opinions of your doctors and/or other medical specialists you have seen for treatment. Generally speaking, the future need for medical care must be “reasonably certain” to be incurred.
Pain and suffering damages may be granted for physical pain resulting from an accident or injury. A jury will look at the nature of the injury, the severity of the pain, and how long you are likely to be in pain to determine the amount of damages. Remember that NO ONE will see this case through your eyes. A jury’s evaluation of your case may differ greatly from your own.
If you are unable to work because of your injury, you may recover the amount of money you would have earned if you had not been injured. Lost wages should be documented where possible. If you have a business that suffered, you might have to show an earnings track record before the accident and your earnings after the accident. If there is a disparity, you might be able to prove that as an element of your case.
You may recover damages for lost earning capacity if you can show that your ability to earn money in the future has been impaired. Past earnings will be used to determine an appropriate damage award, but a jury will likely focus on what you might have earned had the accident or injury not occurred. Again, speculation isn’t going to cut it. You will need to demonstrate to an insurance adjuster or jury that your numbers have a strong foundation.
You may also obtain recovery for the value of property that was damaged, including your vehicle and its contents. This also includes loss of use (i.e., rental value for the period of time you were without a car). Please remember that defendant (or their insurance company) is not obliged to buy you a new car! They are only supposed to put you back in the position you were before the accident happened.
Finally, every client has to make a decision at some point. They can either take the offer being made or generally speaking, file a lawsuit against the other party. In some cases, filing a lawsuit makes sense. However, you need to take into consideration the costs of filing a lawsuit. Even though you may recover more money from a jury, you may actually end up with less money when all is said and done.
When it comes to car accident cases, or other injury cases, there are times when involving an attorney doesn’t really add value to your case. When a client contacts my office, there are several things that I discuss with them. I would say at least 50% of the time, I tell the client they are better off without a lawyer. There are several factors that influence this advice:
First, if the property damage is not extensive, it is difficult to persuade a jury to give more than a few thousand dollars to the injured party. While the impact may seem huge to the client, all that matters is what an insurance adjuster or jury may think. If they have to squint to see the property damage, it’s going to be an uphill battle. If the dollar amount of the property damage estimate is low, people often think the impact was minor.
Second, simple soft tissue injuries are a tough sell. Remember that all that matters is what an insurance adjuster thinks – or what a jury thinks. Since September 11th, juries don’t really care much for plaintiffs who complain of ‘soft tissue’ injuries. Most average people have aches and pains. Everyone is having a tough time with something. Some have financial troubles, family issues, illness, etc. Folks simply don’t have patience for others who complain of aches and pains from car accidents.
In my 18 years of practicing law, most were spent as a defense lawyer. I’ve handled dozens of trials, and I can only recall a handful of times when the jury awarded the plaintiff more than $3000 in a soft tissue injury case. In most cases, they awarded the plaintiffs a big fat zero!
Finally, if medical treatment has been delayed or inconsistent, I am reluctant to handle the case – regardless of the injury in most cases. Insurance adjusters and juries see delays in treatment as a liability. If you delay or have serious gaps in medical treatment, then your actions beg the question: How bad could your injuries be? If you were really hurt, you would have been more proactive about your medical treatment!
When clients call my office, I tell clients they might be better off without me, especially when you consider the typical one-third contingency fee in personal injury cases. If I know the recovery will be minor, why should I take 33% of the client’s potential recovery? That often leaves them in a worse position. There are times when a client really needs help, even with a minor case. However, a good lawyer shouldn’t take every case that presents itself. It is our duty to tell clients of their options, and they can decide. However, there are times that I won’t take the case because it simply would be a disservice to the client. I just give them some advice and encourage them to get a second opinion.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,