The Causation Battle – soft tissue injuries and pre-existing conditions

In the many years I have of handling motor vehicle accidents and soft tissue injuries relating to crashes, the question of causation is one of the hardest to handle and is what often times separates the average attorneys from the best ones. Consider it this way. A car accident case is two parts. Liability (who is at fault) and injuries. 90 percent of the time, it is pretty clear after my first meeting with a client who is at fault for the accident, and no amount of legal maneuvering is going to change that. Where a good injury attorney earns his keep is on damages.
I cannot tell you how many times an adjuster or defense attorney has said something to the effect of “your client has arthritis, degenerative changes and that bulging disc or herniation was probably already there before the accident so we are not going to pay for that as part of his claim.” This is practically a standard argument for insurance companies looking to avoid paying for injuries. It is wrong, and can be attacked by a good injury attorney in the following ways.
First, in Connecticut, we take our plaintiff as we find them. So if you are a person with compromised health, pre-existing conditions or other physical concerns, it doesn’t mean that you cannot recover for an injury because you were already damaged. A person may have a herniated disc, but be asymptomatic prior to an accident. The accident itself can push a person over the proverbial cliff, and in that case, by law, the insurance company is required to pay for the whole injury.
Second, good medical treatment can determine if a new injury occurred in the area of the claimed loss. The practice, called “age dating” is not new but seems to be a growing trend in the industry. Not only can a good doctor testify that an injury occurred and document it on films, but they can also tell you if its new or old. An EMG study is often times done to get to this information. An EMG study measures electrical activity in the injury area, focusing on radiculopathy (nerve damage). This study can allow a doctor to testify that not only is there an injury, but the injury occurred within a likely period of time. Absent other accidents or injuries, it makes a causal connection that cannot be broken and creates the necessary record for an insurance company to be required to pay top dollar on an injury case.

A good injury attorney is able to understand and present these causation arguments in a way that allows the insurance adjuster or defense attorney to see that the case is worth top dollar. Once you are able to nail down these facts, then you are able to make it count with the analysis of the impact the injury will have on the rest of the injured person’s life.

Police Reports and car accidents:
So you were in a car accident, and you called the police, and the police gave you an incident report number for your case but your accident report still isn’t ready and it has been a week. Here are a few thoughts on how to proceed based on my years of experiencing this.
First, if you didn’t get the insurance information from the other driver at the scene, consider using your own insurance to address property damage claims and rental coverage. Even if you have to pay a deductible, it can be better than sitting without a car. Your deductible will likely be reimbursed by the at fault drivers insurance anyway.

Second, if you cannot use your own insurance coverage but do have the other drivers insurance information, you may fall into the trap of giving a recorded statement to get the other side to move on liability quicker. This can work out ok – but it also can be a trap that comes back to hurt you later. Generally speaking, I do not allow recorded statements because they become problematic when two years later, you are in a deposition and your testimony doesn’t match exactly to what you said under duress, without the advice of an attorney, by a professional trained to extract certain answers from you.
Third, you should consult with an attorney regarding your case to understand liability and also understand a course of treatment for your injuries. You may have med pay coverage available under your policy which can offset bills. If liability is clear and we can confirm that you have uninsured motorist coverage (at minimum) then you can start treatment knowing that there will be a method in place to pay for your medical bills. I sometimes see clients who waited a week to two weeks in agony to get additional medical treatment because they are waiting for a police report. This isn’t necessary.
I think it is important for people who are involved in motor vehicle accidents to talk to an injury attorney quickly to help navigate the first two weeks of the case. The story is written in the first few weeks of a case and it can take years to work out the wrong decisions. A good injury attorney shapes your case from the first meeting, positioning you in the best possible way to unlock all avenues of recovery. Sadly, I have seen people who have done damage to their case in the first two weeks that caused a lot of heartache later.

Personal injury jargon – learn to speak the language
Sometimes I think attorney forget that a lot of the terms we use aren’t the things that everybody talks about every day. Just like a mechanic knows about a catalytic converter or a doctor knows about a herniation, lawyers have special knowledge and with it, special terminology. It is worth a few minutes to go over some of these terms so that you can understand what your lawyer is attempting to convey and be able to understand and work together as a team.
Causation: When we talk about causation, we talk about proving that the injury was caused by the accident. We have to prove causation to receive compensation. X-rays, MRIs and other scans are the easiest ways to prove causation.
Damages: This is your injury, usually quantified in dollars. We cannot put your body back the way it was before the accident, so we try to compensate you with dollars. Your damages can be economic or non economic damages. What are you out of pocket? Did you miss time from work? Did you have to pay for care / treatment? What is the long term impact to your ability to earn a living? Are you still able to do your normal leisure activities? All of these things impact damages.

 
Liability: Quite simply, this goes to who is at fault for an accident. In a pedestrian case, you can often times have comparative liability, meaning that a percentage of the fault can be attributed to the injured party for their actions, such as crossing a street outside a cross walk or wearing dark clothing at night. In a slip and fall case, it can be that an injured party didn’t look at the floor in front of them to see a defect or could have used a hand railing. The comparative liability question is fact driven and is argued by your attorney. Eventually, it would be a jury that would decide comparative liability but in most cases, it is sorted out by the professionals based on how the case is presented and argued.

 
Adjuster: The adjuster is the representative from the insurance company that evaluates your case before a law suit is filed and ultimately is the one that writes the check. Adjusters run the spectrum, some handle small cases and some handle large ones. Some are young and new, some are old and experienced. Some are pragmatic and like to move cases – some treat the insurance company’s money as if it were their own. The adjuster “personality” will largely be shaped by the insurance company they work for. Each insurance company trains their adjuster to meet their ultimate goals. It may be to take cases to trial, it may be to pick easy cases to settle quick or even to force injured parties to wait with hopes that they can be “starved” into a lower settlement.
Tortfeasor: Simply put, the tortfeasor is the person who was at fault for the accident. When I say tortfeasor, I am talking about the guy that cause the accident and my clients injuries.

 
Filing suit: When you are involved in an accident, we file a claim on your behalf. If your claim can be settled without filing a lawsuit, we do that. It saves money and is quicker. If we are happy with your settlement and believe it is fair, it is a great outcome. If we cannot, we file suit. Filing suit is drafting a Complaint with a list of claims about what the other driver or responsible party did and what injuries it caused. The Complaint becomes the backbone of your case. It is what we use as a road map of what needs to be proven at trial. The time limit to file suit in Connecticut for a motor vehicle accident is two years after the date of the accident.