How to think about the value of your injury case
You have been injured due to someone’s fault and you want to know the value of your injury claim in Illinois. The question is valid. The answer is not simple and cannot be found in a book or on Google. Why? Because an injury case value is not a math or science problem with a definite answer. You cannot plug in x, y and z and get an answer as you would with a calculator.
Ultimately, if a case is not settled by negotiation, the case value is decided by a jury, judge or arbitrator. Predicting what people will do is difficult. That is why cases settle out of court. People are unpredictable.
What you need to know are some basics of case evaluation. When you know the basics, you can speak the same language as the insurance company or their attorneys, then you can estimate a range of value for your case. For example, your case may have a value between $100,000 and $125,000. When you know case evaluation basics, you can think about your case in an effective manner and perhaps determine a range of value for your case.
A word about liability
This article is not about liability. Every case has two parts: liability and damages. Liability is the degree of fault of the other party. Damages are your injuries and other losses. With regard to liability, if the other party rear ended your car in an auto collision, that person is likely 100% at fault for your injuries. If the other party sideswiped you on the street and there is evidence you could have seen the other driver and avoided the collision, then the other person might be only 50% responsible for your injuries.
For the purpose of case evaluation, in considering your damages, if the other party is less than 100% at fault, your damages claim is correspondingly reduced. For example, if your damages are $100,000, and the other party is only 50% at fault, your case may only be worth $50,000, or nothing at all. Liability is a threshold issue. This article presumes the other party is a negligent cause of your injuries.
The claim evaluation process
Insurers and attorneys use a claim evaluation process. The process is important in determining whether to settle the claim or go to hearing or trial to allow a jury, a judge or an arbitrator to render an award on your claim.
Personally, I am not an exceptionally handy person. When I have some mechanical problem in my home or with my car that is beyond my capabilities, I go to a specialist. It is worth the money. The time and effort in learning how to fix some mechanical issue, and perhaps make it worse, make the value of going to a specialist worth the cost. However, even if I go to an expert, I usually attempt to inform myself about the basics of getting my vehicle serviced or getting something done in my home. That is what you are doing now with respect to your claim.
The “Value” of your claim
Asking “what is the value of your claim” can be like asking what is the value of a house. Value depends on facts. To use the analogy of the house value question, we know that the price of a house will depend on many factors. The major factors include location of the house, the size of the house and the condition of the house. A big house in a good neighborhood that is in updated condition has a greater value than a small, dilapidated house in a tough neighborhood. Similarly, the value of your claim rests on a few main factors: the severity and how permanent the injury, the amount of medical expenses and income loss, and the amount of insurance coverage that is available. Let us explore these components further.
The main elements of your injury claim
I. Severity of Injury
The primary factor to determine the value of your injury is the severity of the injury. What is your injury? Stated another way, what did your doctor and other specialist find and diagnose? You may have a back injury, but that injury could be diagnosed as anything from a lumbar strain to a lumbar herniated disc.
Generally, a strain is simply not worth as much as a herniated disc in the eyes of insurers, jurors and many arbitrators. A strain is a muscle pull or stretching that is somewhat painful and disabling and expected to heal in weeks or months. A herniated disc is something that can be knee buckling, disabling and never heal. A strain will never be a surgical condition whereas a herniated disc is often treated with surgery.
It is quite true that even “minor” injuries can be painful, disabling and permanent. However, in the land of insurance adjusters, defense attorneys and many judges and jurors, they will look skeptically at a claimant who seeks major dollars for strains and sprains. When informed that an injury victim had a brain injury, broken bones, herniated discs, burns, scarring or other significant trauma, people can sit up and take notice.
An important factor in the injury evaluation process include the type, timing and frequency of your treatment. How soon after the incident that you had treatment, the type of treatment you received, and how long your treatment lasted are all considered by insurers and defense attorneys.
If you did not have immediate treatment after your auto collision, the insurance company will downgrade the value of your claim. If you had initial emergency room treatment, but did not seek follow up treatment for a month after the initial treatment, the insurance company will reduce its evaluation of your claim. And jurors are likely to do the same with your claim if they do not see evidence of treatment consistent with a serious injury.
Whether your treatment was invasive or non-invasive is an important consideration. Non-invasive treatment would be things like radiology tests such as x-rays or MRIs, medication, physical therapy or chiropractic manipulation. Invasive treatment would include such things like injections or surgery. The thinking on invasive versus non-invasive treatment is that invasive treatment suggests a more serious or painful injury. A person would not undergo an injection or surgery unless they were in a dire condition that allowed them to decide to have a needle put into them or to undergo anesthesia and be operated upon.
How long did your treatment last? If you are still in treatment 3 months after the incident, most doctors will consider your condition chronic and likely to have long lasting effects. If you are recovered after 2 months of treatment, you have an uphill battle persuading an insurer that you have a serious and valuable injury claim.
Certain treaters and types of treatment carry perceptions that affect the value of a claim. Years ago, chiropractic physicians did not always have the most favorable view in the eyes of insurers. I believe that has changed and a capable chiropractic doctor can be an invaluable member of your recovery team and be able to provide helpful records and reports regarding your symptoms, objective signs of injury and progress through treatment.
If you have a neurological type injury with something like brain trauma, you are going to likely have a neurologist, a psychiatrist a neuropsychologist and perhaps a physical and occupational therapist to assist you. The fact that you have different specialists treating you is notable and can be persuasive in establishing the extent of your damages.
Pain is a compensable element of damages under Illinois law. The fact that pain is an element of damages reflects the societal value placed on being healthy and pain free.
Witness the endless commercials for over the counter and prescription pain medications and the relief from pain which its vendors promise. Being able to live and conduct our affairs free from pain is the ideal human condition. The fact that an injury causes us to live in pain and requires us to go through our daily activities plagued by pain is the basis of compensation for pain under the law of damages.
Pain can be proven by the testimony of yourself, medical treaters, family members, friends, co-workers and other associates. Medical records can establish specific locations, features and extent of pain. Pain can be proven through physician’s prescriptions of pain medication, and prescription of treatment designed to lessen or eliminate pain.
The severity, frequency and duration of your pain is a factor in determining your case value. Did you experience pain for over a year? If so, then your damages are more extensive than a person who recovered from their pain in a month. Was your pain constant? If so, that factor suggests a higher claim value than an injury that caused occasional or intermittent pain. The element of pain is a significant feature of your damages that is worth careful consideration.
What is disability or “loss of normal life? Any reduction or elimination in your activities in known as disability. The element of disability involves a look at your activities before and after your injury. In Illinois, disability has come to be known or defined as “loss of normal life.” A normal life is deemed to be one in which a person has a range of personal, household, work, family, social, spiritual, recreational and other activities.
To the extent that a person is impaired in those activities because of injuries, they have partial disability or loss of normal life. If a person is completely unable to do certain things, they have total disability or loss of normal life.
Disfigurement is the term for visible injuries such as scars, burns or other deformities. The law states that disfigurement is a compensable element of damages. The at fault party is responsible for your disfiguring injuries. The most common visible injury is scarring. Scarring can result from the direct physical trauma such as a cut, or from the stitching after a surgical procedure. Other examples of disfiguring injuries are burns or severely broken bones that are knocked out of their normal alignment by the original injury or the subsequent surgical procedure. As disfigurement such as scarring is usually permanent, it can have considerable value. It can be a significant element of damages in your injury claim.
F. Temporary or Permanent Injury
A major factor in evaluating your injury claim is whether your injury was short term or temporary in duration versus long term and permanent in duration. If your case goes to a jury, and your injury is permanent, the jury is provided with a life chart which provides your life expectancy. If you are a 40 year old woman in otherwise good health, the life charts will indicate you may have an expected life of another 40 years. If the evidence, including doctor’s testimony is that your injury will have permanent effects, it can be argued that you are entitled to compensation for the pain, disability and medical expenses over the duration of your expected 40 years. On the other hand, if your injury is resolved and you reach a point of recovery, then the judge or jury may only consider the effect of your injuries during the duration of your condition. Accordingly, it is essential that your medical treater be informed of the exact nature of your condition, symptoms and limitations during your course of treatment.
II. Economic Damages or “Special Damages” and Income Loss
A. Medical Expenses
Expenses which you incur, or income that you lose due to conduct causing your injuries are compensable damages. Financial or economic losses are sometimes referred to as “special damages.” Damages such as pain and disability are sometimes referred to as general damages. The primary economic damages resulting from an an injury are often medical expenses. Medical expenses includes ambulance, emergency room, radiology, physician, physical therapy, surgery, medication, devices and all other medical related services and items for which you are billed. And if you are billed but you have insurance to pay the bill, you are still entitled to claim those medical expenses as items of loss.
It is important to remember that you may have multiple bills for just one medical related visit to a medical facility. For example, a visit to the hospital emergency room, will likely involve charges from the hospital, the emergency room physician, the radiology group and perhaps others. Keeping track of your expenses is essential. One of the primary factors used by insurance companies and attorneys in evaluating your case will be medical expenses.
B. Income Loss
The income lost due to your injuries is another potential item of damages. Whether your income is from salary, wages or independent contractor type payments, if that income loss is due to your injuries, the law provides that the other party is responsible for that loss. You may have additional losses related to loss of 401 k or profit sharing contributions, bonuses, or other performance related items which you have lost.
Forum For Your Case
Where your case will be heard (the forum) a factor in evaluating your case value. For example, Cook County is considered a more liberal or generous place for your case as opposed to DuPage County which is considered a more conservative or stingy place for your case. Jury pools in Cook County tend to be diverse in socioeconomic background and tend to take a dim view of corporate shenanigans as opposed to a county like DuPage where you have more corporate types who tend to take a dim view injury claims.
These are broad generalizations, however they have support based on jury verdicts. If you have an uninsured or underinsured motorist claim headed for arbitration, the arbitrator or arbitrators are critically important in evaluating your claim. It is important to know the inclinations of the arbitrator(s) and his or her experience and practice areas.
How You Present Yourself
Are you likeable? Are you presentable? People are more prone to provide full compensation to someone who tends to be more like-able and presentable. This is a fact of human nature. These inclinations have been proven in experiences and study after study. We have done focus groups, spoken with jurors, negotiated with insurance adjusters, negotiated with defense attorneys, and there is an undeniable “x” factor that plays a role in resolving injury claims.
Whether a case is settled by negotiations or decided by a jury, how a person looks and acts can be important factors. Let’s face it, we all tend to like or dislike people in our lives, in part based on how they walk, talk, look and conduct themselves. An honest look at that part of yourself will be helpful in getting a fair assessment of your claim.
You are best served by having an idea about how to evaluate your injury claim. You need a guide or framework within which you can analyze your claim. You must begin with the end in mind. In other words, if your goal is $100,000, you have to justify that amount. And in order to come up with a settlement goal, you must understand the basic elements of damages: pain, disability, medical expenses and income loss. You must also know how to evaluate the nature and extent of your injury and whether or not the injury is permanent. The claim evaluation is as much an art as it is a science. It may also involve an ability to properly present your case and argument in favor of your claim.
Contact one of our personal injury attorneys if you would like to file an injury claim, or call the Blumenshine Law Group for a free no obligation consultation at [email protected]. or call (312) 766-1000.
Here are some other great articles about personal injuries and how we can help you:
Injured by the Negligence of Municipalities and Jurisdictions
Pain and Suffering After an Accident or Injury