PART 2: My Frustrating Low-Impact, Soft-Tissue Case

WHITEBOARD WEDNESDAY (July 19, 2017): A low-impact car accident that results in soft tissue injuries (strain/sprain of the back and neck) is a very common, but as we discussed last week, most personal injury lawyers aren’t keen to take them on a contingency fee. In this week’s Whiteboard Wednesday (Part 2 of 2), Matt gives you some advice about how to handle your low-impact, soft-tissue case if you can’t find a lawyer.  (Click Here To Watch Part 1)


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Video Transcription

Hi, Matt Quinlan here. Welcome to this week’s edition of #WhiteboardWednesday, where we tackle real-life issues that are our clients face and answer questions that we get from people that call our office. This week, we’re gonna be addressing part two of the two part Whiteboard Wednesday series on low-impact soft-tissue cases. Last week, we talked about the reason why a lawyer is probably not gonna wanna take on your case, and then this, week we’re gonna discuss what you should do if you find yourself in that situation.

Tips To Avoid Unnecessary Problems

So, let’s get started. What should you do if you can’t find a personal injury lawyer to take your low impact soft tissue case? Well, let’s start by some tips. You are gonna be facing an uphill battle, as it relates to your case. I mean, in terms of personal injury cases, a low impact soft tissue case is kind of viewed as the most minor version. So this is not gonna be the type of case that you’re gonna hit the jackpot on. This is not gonna be something that you’re gonna, you know, have an early retirement on obviously, all right?

So, keep your expectations down. That’s kind of one of the main things here. But as far as what you should do to make sure you don’t create any additional problems for yourself, beyond kind of the state of things that you’re gonna find yourself in, is go ahead and get treatment fast, all right? Don’t wait. You know, day of the accident is ideal, the next day is perfectly fine, a few days later, no problem. If you wait though, longer than maybe 10 days, maybe 14 days, there is enough time that has passed between the accident and the first time that you get medical care, that the insurance company is going to hold that against you. And they’re going to start to feel like there’s an opportunity for them to claim that you weren’t injured in the accident, which is why you didn’t get treatment, you know, close in time to when the accident occurred and you probably were injured doing something else at home, in some sort of other accident. So, go ahead and get treatment fast. Don’t wait to go ahead and go see a doctor, document what happened, explain the accident to your doctor so that it ends up in your medical records.

And then, make sure you only get necessary treatment. Okay? So, these cases are tough and you might never ultimately recover fully form. So the last thing you wanna do is go out and get a whole bunch of treatment on a really kind of minor case like this and then not be able to recover the medical bills, and find yourself in a position where you owe your doctor or your chiropractor money for your treatment that you got and then you get a settlement offer from an insurance company that won’t even cover that. All right? So, be careful about your bills. Understand that it’s gonna be a tough road. You’re going uphill here, so don’t get treatment that’s not absolutely necessary. Try to keep your medical bills down, that’s the smart thing to do. And like I mentioned, the lower expectations. I mean, unfortunately, for reasons I talked about last week, you know, you’re going it without a lawyer, which makes things even tougher. These aren’t very threatening cases to the insurance company and you’re at their mercy a little bit. So keep your expectations down, and ultimately, that will serve you well throughout this process.

Do You Have a Med-Pay?

As far as options to recover, all right, Med-Pay. That’s a great option to get your medical bills paid. Med-Pay is in your own auto insurance policy and it’s a part of your policy that you may be paying for and you’re unaware of it, and most people do in fact have it. Med-Pay covers your medical bills that relate directly to an auto accident up to a certain amount of money. $5,000 is common, sometimes only a thousand and sometimes they go all the way up to as much as $25,000. Okay? And so, if you have Med-Pay in your own auto insurance policy, they don’t ask questions. It doesn’t matter who’s at fault. If you can establish that you got this care from an auto accident, then they would pay your medical bills. And so that way, you don’t end up getting stuck with these bills if this thing goes poorly for you, all right. So, this is probably the very first thing you should do, right? You know, oftentimes, chiropractors for example, your health insurance won’t pay for chiropractic care and if they will, it’ll be some limited amount. I go to a chiropractor and my health insurance does not cover it, and I have to pay out of my pocket on it. So, if I were in a circumstance like this and needed chiropractic care, I would be either paying out of my pocket or there would be a bill that’s created that I will ultimately owe the chiropractor.

So, you wanna turn to your Med-Pay first, that’s a great way of getting your bills paid, especially chiropractic bills if your health insurance won’t cover it. You should know that there is a concept called subrogation, all right. It’s a legal concept that’s in your contract that you have with your own health insurance company and it entitles your…sorry, I said health insurance. It’s a legal concept that is a part of your contract with your auto insurance company that entitles them to be reimbursed for any money they pay out for your medical bills, if you later get a settlement from a third party, all right.

So they’re just entitled to be reimbursed, so that you can have your medical bills paid for by your auto insurance company and then recover it again from a third party and kind of double dip in that way. So, they are entitled to subrogation. I’ll tell you practically, and just kind of, you know, as a realistic way of viewing this whole thing, they are not great at following up on this, all right. So, technically, you have to pay them back. It’s in your contract. You are entitled to do that. And I’m not advising you to try to skirt that responsibility, but I will tell you that these auto insurance companies, they’re not in the business of paying out Med-Pay and they are not the best at chasing down information about whether or not you alternately got a third party settlement, all right.

So, if for example you are in an accident and you use your Med-Pay, they cover your medical bills, you don’t have to pay them back unless you get a settlement. And they have a very difficult time trying to figure out if in fact you’re bringing a claim, if you ever got a settlement from anybody. So, you know, this is not necessarily the type of thing that they’re gonna be on your heart for. Again, you should pay them back, again, you’re obligated legally to pay them back, but I’m just telling you practically speaking, they’re not always real good at seeking this reimbursement.

Creating A Great Demand Package Can’t Result In A Great Settlement

The heart of the project that you’re gonna find yourself dealing with that was a demand package, all right. A demand package, that’s something that we do for our clients in almost all of our cases, pre-litigation. This is an effort to settle cases with insurance companies prior to having to file a lawsuit. It’s something that you’re gonna do also if you can’t find an attorney and you’re trying to get a fair settlement. Now, here’s what you should do. Get your medical care, get your health back, all right. You don’t wanna go try to settle your case before you’re healthy again. Insurance companies, they’ll oftentimes try to get to you very early. They offer you money really early, way before it’s even, you know, timely because you’re still treating. You don’t even know how badly you’re hurt. So, go ahead and make sure you get all the care you need. Don’t over-treat. Like I said, don’t run up your bills unnecessarily, but you do wanna make sure that you get your health back. You wanna give it the time necessary to make sure you recover, all right. So, once that happens, you’ll be done treating with your doctors and then you can start thinking, “All right, I wanna put together a demand package to try to elicit a settlement from the insurance company.”

Now, let me give you a little bit of information about, you know, kind of the process, about what you’re entitled to. When you’re injured in an accident, you’re entitled to the damages that flow directly from that, all right. Obviously, you’ve been injured. Those injuries typically end up requiring that you get medical care, and you have medical bills, all right. Your medical bills and your wage loss is what is referred to as economic loss. These are real dollars, there’s a price you can put on this, there’s an amount you can prove that you lost directly related to your injuries. So, economic loss, you’re entitled to, and then you’re also entitled to a non-economic loss. And that is just basically your pain and suffering, all right. It’s your burden, it’s what you had to go through as a result of the accident. So it’s two-fold. Juries award them. They award economic loss and then they give you some amount of money for your pain and suffering. So, the economic loss is obviously pretty easy to prove, at least make a claim for, and the non-economic loss is a little more vague, right? And that’s kind of where the arc in this whole thing is because it’s not clear what exactly you should be entitled to.

So, in your demand package, you’re gonna want to include various information, including the facts, all right? Including what happened. You gotta establish liability. It’s probably pretty clear, but you still wanna state what happened. You still want to make sure that you’re presenting your case in a persuasive way to the insurance company. If there’s a police report that finds the other driver at fault, great, include it for sure. Put some narrative in there that you write yourself about the event. What happened in that moment, that scary, the collision, what you felt, all those things. That’s important. Talk about what flowed directly from it, and the fear you had, and the pain that you had, your course of treatment. Included the whole…all the narrative, right? Your own narrative about the situation. Your goal is to present a compelling case to them. So try to write it in that way. You want to include, so that was the facts, right? You wanna include photographs if they’re helpful to you. You know, some of these low impact soft tissue cases, you get hit in the bumper and there doesn’t end up being a lot of visual damage. You might ultimately have to get your bumper replaced, which is about $1,500, but the damage to the actual bumper is not apparent, right?

So, in a situation like that, you don’t wanna include those photographs for the insurance company because they’re not compelling, they’re not persuasive in any kind of way to the contrary. So, if you have photos that help you, great, include them. If you have…of the car. If you have photos that are not great, don’t include them. Preferred, probably would be just to include the repair bill there. So if they did replace your bumper, include in the bill, maybe $1,600. Send them a copy that you got from auto-body shop. That would be a better, more persuasive, a more strategic way to kind of paint the picture of the damage done to your car than giving them a photograph that doesn’t show any damage, but shows just a minor little scratch or something like that.

Your wage loss, also part of your economic loss. Like I mentioned, you’re gonna wanna prove it. You’re gonna have to prove it. Paystubs will do the trick. A letter from your boss stating how much time you missed with their contact information, should they wanna follow up, that will suffice. Don’t give them your tax records, all right. You can give them some paystubs if they wanna prove exactly how much you made. Most of the time, they will accept something signed from your supervisor, stating how long you were at and what your hourly rate was. So, include that in there, obviously. And then your medical records and bills, that’s absolutely a must. You’re going to need to establish what your injuries were. In there, there will be lots of information that your doctor, or your chiropractor, or any other medical provider that saw you is going to make mention of and that will establish what you were going through. It will talk about your symptoms and your hardships. So you definitely wanna include all the medical records. You can order those yourself from your own doctor or chiropractor, and then also include the bills obviously, because that’s part of your economic loss and you’re gonna wanna include it.

Now, the bills that you’re gonna present are gonna have two numbers in. There’s gonna be a bill amount probably, and a paid amount, if insurance is involved. So, you’re only entitled in California to recover the actual paid amount for your medical bills. When health insurance is involved, those numbers are almost always something different. They bill a big amount and then they have a contract with your health insurance company where they pay less, and then they write off the rest of it. You’re only entitled to recover what is actually paid. It also includes what you pay. So, if there’s a deductible or some co-insurance that you have, you can include that as well. But just understand that you might see a big number on there, but you should really be looking for what was actually paid, and that’s what you’re entitled to recover as part of your economic loss. And then lastly, you wanna make a demand, okay? A financial demand for settlement. I would recommend, just kind of as a way of handling it, maybe triple your economic loss. All right? So, if you have $2,500 in economic loss, demand $7,500. It’s a reasonable thing to do. Obviously, if they were to give you $7,500, that’s a really good result. They’re not gonna do that given these facts with the $2,500 in chiropractic bills that I mentioned last week.

But start there, okay. Present everything. If you do it in a persuasive way, if you mention in the demand, you know, you give them all the information, all the documents that they need, and then you mention them in the demand that you’d really like to be able to resolve your case without having to involve a personal injury lawyer. It might give you a little bit of leverage. Now, you might know that you couldn’t find one if you tried to, but they don’t necessarily know that. And so, if you can kind of spin it in such a way that you’re like, “Look, I don’t really wanna deal with the lawyers. I’d much rather just get this resolved myself.” In their mind, they view that as an opportunity because they know you don’t know the value of your case. So, they will be like, “Okay, fine.” And they might treat you a little more fairly to make sure you don’t run off and get a lawyer or try to, even though they probably suspect that you’re gonna have trouble doing that. So, demand three times the medicals…or the economic loss. That’s probably a pretty good place to start. Hope they’ll come back at you with offering to pay your economic loss, your wage loss, your medical bills, and then maybe something extra, maybe another $500 or $1,000 . In this particular circumstance, if you had $2,500 in chiropractic bills, you didn’t miss any work, you know, maybe they’ll come back and offer you $3,000, right?

And so, in response, time to negotiate. You know, maybe you come down $1,000. And say, “I’ll tell you what, I’ll take $6,500.” And then they say, “Well, I may be can squeeze another $500. I can give you that, it’s about the best you can do.” And then you’ve got to play the game with them, okay. And then ultimately, you’re hoping to maybe settle in around $5,000, and that would be great. You might not get there. If you do, good for you. You did a really good job. I know it’s nothing to throw a party about, but it’s still something you can feel good about, all right? And you were treated fairly and you ended up in the exact same situation that you would have been in, had you had a board to get you $7,500, all right? Because you don’t have to pay the contingency fee.

So, anyway, that’s how these demand packages work. Do a good job, spend the time with them, give them all the documentation. These insurance agents, they’re not gonna send you money without being able to paper their file, which would justify any amount of money that they paid you. So, make sure that you give them what they need so that they can offer you money.

Small Claims Court Is A Good Option If You Can’t Get A Fair Offer

Last thing, if this is unsuccessful and you can’t get a fair result through the demand package process with the insurance company, you know, it might make sense to bring a small claims action in California. You bring a small claims action against the individual that rear ended you or that is responsible for the accident. I know insurance is involved, but that is still the person that ultimately caused harm to you. So, you bring a small claims action against them. In California, the max that you can recover in small claims from a person that has auto insurance is $7,500. It’s $10,000 in some situations, including when there is no auto insurance involved, but hopefully, in your situation there is, and you should know that you can only get $7,500. The way that works is, there are no lawyers involved in small claims court. They get that. It’s catered to people that don’t have any legal experience, so don’t be insecure about that. You present your case, you do it in a very similar way as you did with the demand package with all the documentation, and then ultimately, a judge gives you a judgment. They award you amount of money and then you can collect that from the auto insurance company. So, that’s another way of actually recovering money, right, and getting more money from the insurance company than they might be willing to offer you just through the stated demand package, okay?

So this may…also something you want to include in your demand package in the conclusion, say, “Look, I mean, I know I have two options. Hire an attorney and sue you or take you to small claims myself. I’m looking to a avoid having to do that so long as I’m treated fairly.” That maybe enough, right, to let them know that you know what you’re doing, that you can get a little more dough out of them when you’re arguing with them through the demand package process.

So, I hope some of this stuff is helpful to you. I’m sorry if you find yourself in a situation where you can’t find a lawyer and you’re feeling frustrated. I get it, you deserve it. I know it’s a bad deal. It’s just kind of, you know, a product of the surroundings that we find ourselves in as it relates to these types of cases. But I did wanna present this information to you on a Whiteboard Wednesday to give you some information and to allow you to understand the process, understand your rights, and understand some things that could help you get justice if you’ve been injured in a low impact soft tissue case.

I appreciate you watching and I look forward to seeing you again next week on Whiteboard Wednesday.