Medical Treatment, Lost Wages, Pain and Suffering and Negotiation

Let us now look at a hypothetical automobile accident and its aftermath to illustrate the successive stages of the insurance claims process.  Assume for this hypothetical that the accident was the fault of the other driver.  Remember, as stated in an earlier post, if his/her insurance company calls you, refuse to provide a recorded statement because the recorded statement could come back to ultimately weaken the value of your claim.  Now the adjuster working for the insurance company that insures the driver that hit you will begin his/her own investigation into the accident.  To accomplish this, he/she will, among other things, obtain a recorded statement from their insured for the purpose of determing fault/liability for the loss.

Now what do you do?  If possible, take pictures of your vehicle and if you have any visible injuries to your body, take pictures of those as well.  Next, assuming you have injuries, you should seek medical treatment to treat your injuries.  Such treatment typically (assuming you only have soft tissue injuries) includes your primary care physician and/or a physical therapist, and/or a chiropractor, as well as other ameliorative treatments that are available.

But who is going to pay for your medical bills and lost wages, if any, that keep adding up following the accident?  In Massachusetts, there is a no-fault statute which mandates that regardless of who was at fault for the accident, your insurance carrier will pay for your medical expenses and any lost wages you may have incurred due to the accident.  According to Massachusetts law, your automobile carrier must pay the first $2000.00 in medical expenses that you incur.  If you have a private health insurance carrier, once your auto insurance carrier pays the first $2000.00 in medical bills, the remaining bills will be sent to your private health insurance carrier.  If your health insurance company refuses to pay the bills, they willl be sent back to your automobile insurance company for payment. 

In Massachusetts, your insurance company then will pay the remaining medical bills, but, is only required to pay up to $8000.00 of your medical bills.  Any bills after that are your responsibility, and that is when you should try, or your attorney should try, to negotiate the amount of those medical bills that are outstanding after your PIP (Personal Injury Protection – the $8000.00) has been exhausted. 

As for lost wages, your insurance company will also pay for your lost wages, but not all of them.  They are only required to pay 75% of your lost wages pursuant to the Massachusetts no-fault structure mentioned above.

Ok, so now you have finished your treatment and you are now at what is referred to commonly as a "medical end-result."  Now what?  You must now submit all of your medical records, medical bills, lost wage information, periods of partial and total disability following the accident, as well as any photographs that you may have taken of your vehcile, as well as photographs of your visible bodily injuries, to the insurance company that insures the vehicle that hit you.  You include all of this documentation and affix it to a "demand letter" that you send to the insurance company (more on "demand letters" in another post).

Now it is time to negotiate your claim with the adjuster.  After receiving your demand letter and its supporting documentation, the adjuster will make an offer of settlement to you.  The adjuster will evaluate your "special damages" which are your medical bills and lost wages, and will analyze your "general damages" which include pain and suffering.  Most adjusters use a formula, based on your medical bills and lost wages and any period of disability following your accident, as well as any permanent injuries you may have sustained, to arrive at a settlement figure.  Once the adjuster makes you an offer, you then make a counter-offer.  Be careful not to decrease your counter-offer until the adjuster has increased his/her original offer.  Be firm, courteous, and professional with the adjuster, and hopefully, you will be able to settle your claim for a fair and reasonable value. 

It should be noted that the vast number of claims are settled.  In the event your claim is not settled you will have to file a lawsuit against the driver that caused your accident.  The insurer of the other driver has a duty to hire counsel to defend the lawsuit brought against the driver.  Approximately 12% of claims in Massachusetts are not settled, and litigation therefore ensues.  But in Massachusetts, only about 1% of bodily injury cases are tried in open court before either a judge (bench trial) or jury. 

Although there is no requirement to have a lawyer involved in your personal injury claim, it is highly suggested you do because the insurance company will only offer you a small settlement based on a risk analysis; they know that you are not a trained attorney and that you are not fully aware of all of your rights, and that you do not know how to try a case, and the many technical procedures that must be strictly followed.  An attorney’s involvement in your claim will, even after the attorney takes his/her contingency fee from the total settlement, usually result in a higher settlement to you, than if you had pursued the claim on your own.