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Auto Insurance Claims/Personal Injury with preexisting condition in a different part of body


Dr. Settlement, J.D. (Juris Doctor) wrote at 2013-03-06 23:26:36
THIS IS PART ONE of my answer.  It was too long, so Michelle got everything via private e-mail from me.  I post this, cut by about 10% to fit in the allotted maximum of this comments block, for the benefit of any Internet readers who wondered why the “official” answer started with part two.

Best wishes,

Dr. Settlement, J.D. (Juris Doctor)


That self help insurance claim site SettlementCentral.Com is our site to help accident victims make insurance claims.  I am not promoting it here, but instead I will give you a lot of free pages of online insurance claim information at www.SettlementCentral.Com for your car wreck injuries and you can take or leave the info you will read there.  OK?

Lastly, I hope you do not take offense at my disagreeing with you and your plans for a quick, “fair” settlement.  It is not because I want to push my opinion; it is because I CARE for you and people like you.  I have been helping injured victims of negligence for over three decades, and I have seen insurance awards for a lot of suffering—more often than I would like—go grossly undercompensated.  And if you make it all the way through the long book I am going to write for you, I hope that something I put down will help to ensure yours is not among that category of being undercompensated.  The reason I am going to take this time is that—and this is just an educated guess based upon my experience—you have injuries that can AND WILL come back to haunt you in future years.  IMO, yours is not some simple soft tissue claim that involved a few months of pain and now is a thing of the past.  Hopefully your nerve damage is just minor, with little chance of it ever bothering you again.  But I have had many cases where the pain subsided with conservative medical care, but it was lit up just a few years later with physical activity.  So there will be a lot of that information below, with suggestions on how to proceed.  You will have to do some work, but in the end, I hope to give you both the incentive to do that, and the keys to make your efforts pay off for you.  

Here are the SIXTEEN topics that I will address for you, Michelle.

#1. It sounds like you have a much more serious claim than you believe

#2. “excruciating left arm pain” equals radiating pain equals nerve impingement (e.g. abnormal pressure is exerted on the nerves of the spine)

#3. “What we've got here is (a) failure to communicate”

#4. Quality of your “general doctor”—why no referral to a neurologist?

#5. Probably off topic for your doctors, but what about TMJ as cause of headaches”

#6. No worries on the allegation of “preexisting condition”: lower back vs. cervical

#7. Possibly WAAAAY off topic, but brought up to you “just in case”: preexisting cervical condition.


#9. How to value your bodily injury insurance claim

#10. Loss of consortium versus lost wages or lower income for the business

#11. “I am only looking for a "fair" settlement, that is ALL”   That makes you adjuster bait—something they get to “high-five” about: four months is WAAAAY TOO SOON for settlement

#12. Serious claim and attorney needed?—or can you do this on your own?

#13. How to make your own personal injury insurance claim www.SettlementCentral.Com free advice and free examples.

#14. Why I will not be available via

#15. How to contact me via my private e-mail.

#16. Feedback at this point?


#1. It sounds like you have a much more serious claim than you believe

THREE signs of a SERIOUS traumatic insult to your body are: (a) the fact the impact smashed your seat all the way back (hope you got a photo as that is good, solid evidence of the impact), and (b) “nonstop headache for 2-1/2 days”, and (3) “excruciating left arm pain.”

Yours is not some garden variety soft tissue “sprain” of some part of your body, as laymen use the term “sprain”.  Instead, IMO, you have some fairly serious injuries, and at least one of those could impact your life in future years.  I am speaking of nerve damage.  AND, the medical definition of a “cervical sprain” can include nerve damage of the kind I will describe next..  


#2. “excruciating left arm pain” equals radiating pain equals nerve impingement

(e.g. abnormal pressure is exerted on the nerves of the spine)

There is no medical or mechanical way in which a soft tissue sprain can cause “excruciating left arm pain.”  The ONLY cause of that symptom is nerve impingement or nerve damage of some kind.  

This does not have to be some gross smashing of the disc to produce that kind of pain.  But it could simply be just abnormal pressure being exerted on the nerves of the spine.  Where in the spine?  The lower cervical spine is the source, more likely than not.  

You do NOT EVER get “excruciating left arm pain” from a simple cervical “sprain” of soft tissues.  The doctors define “cervical sprain” to include nerve damage.  Radiating left arm pain comes from a nerve impingement—and since nerve damage is very often INCLUDED within the meaning of “cervical sprain”, what your medical records are probably telling you is that you may have sustained some nerve damage.

I believe you have a cervical nerve impingement, and that has temporarily resolved with conservative medical treatment, as most will over time, and—depending upon the degree of how much the disc is pushed, the pressure on the nerve can and will be released with conservative treatment (as you had) over time.  BUT there is also a good likelihood that the injury WILL make you more susceptible to injury in the future with a lot less trauma than would be required to bring about similar pain in a normal person.  If this is a true prognosis, such as a specialist (neurologist) might make, then that weakened condition ITSELF IS COMPENSABLE, even though you may not now be experiencing pain.

So I would respectfully invite your attention to that part of your doctor’s record in which he makes his prognosis: see what he says about whether or not you might suffer pain again from that condition, depending upon your activity level.  

Thus, if you were my client, I would want your settlement to be based upon an accurate prognosis, hence the recommendation throughout here to get to a neurologist.  If you have even ONE episode of even dull aching in that left arm, use that as a reason to get in and see a neurologist as soon after that pain as you can.  

What if my experience is right, and instead of something that has permanently “healed”, the nerve damage has only gone quiet for some time, with the strong probability that it could be awakened in future years, depending upon your level of activity?  Is that a risk you are willing to take just to get this claim behind you?  

Cervical (neck) radiculopathy causes more pain in the lower arm than in the neck area.

The first term I used above, “cervical radiculopathy” just describes a condition in which injury occurs near the root of a nerve located between the cervical vertebrae (in the neck), and causes pain, weakness or numbness in other locations along the nerve pathway, such as the arm, shoulder, hand, wrist or fingers. Symptoms result from pressure that is exerted on the root of the nerve due to the nerve being compressed by the surrounding cervical discs.

This is the direct result of the kind of trauma you suffered when the impact slammed you backward so hard it broke your seat.

What is radiculopathy?

A disc herniation occurs when the outer rim (annulus) of the disc weakens or tears, causing the nucleus to push outward. When the disc herniates backward, to the right, or to the left it may impinge or "pinch" on a spinal nerve and/or the spinal cord, causing symptoms in the corresponding referred area. This is called a "radiculopathy." A radiculopathy may occur spontaneously or with trauma.

Not all disc herniations cause impingement. You might have had some nerve damage, but not known about it.  As many as 30 percent of all adults have symptom-free disc bulges or minor herniations in the cervical area. Also, as many as 30 to 40 percent of all adults have disc bulges in their lower back that are entirely symptom free.

What are the symptoms of a radiculopathy?

When a disc herniates and impinges a spinal nerve, it may cause pain, changes in sensation (numbness), and loss of muscle strength in the affected area. Numbness and muscle weakness is often felt in the corresponding referred area (i.e. the arm for cervical, or leg for lumbar, etc.)

What are the treatment options?

Generally, medical management is recommended before surgery is considered. Medical management includes one or more of the following—which, of course, will vary depending upon how much pressure is being exerted on the nerve: active physical therapy, simple analgesics (pain-relieving medications), muscle relaxants, non-steroidal anti-inflammatory medication, epidural blocks ("nerve blocks"), a short course of steroids, and possibly very short-term bed rest.


#3. “What we've got here is (a) failure to communicate”

OK, I will admit to wasting forty minutes of your time from my work here watching YouTube clips of “Cool Hand Luke”, the source of that quote.  

Here is what I am getting at, Michele.  Either no one told you exactly everything shown in your scan, or your doctor did not go over the scan or his full diagnosis with you, OR—IF in fact they DID explain stuff to you, then you failed to do a good job of letting me know that you know how serious the injuries probably are.

It is very important to have a clear understanding of what your medical records say if you want to try to settle your own insurance claim case.  How can you possibly make any kind of presentation if you are not conversant with the terms and what they mean?

My bet is that somewhere in your records you DO have a diagnosis of some kind of cervical nerve damage.  Look for words like these: cervical radiculopathy, disc bulge or herniated disc, cervical foraminal stenosis, impingement of one nerve root on one side—any descriptions like that.  

My hope is that your records are thorough and do not need to be supplemented. But if in fact that hope of mine turns out to be unfounded—that in fact your general doctor did not take down much of what you told him over the years—then you might want to consider supplementing your records via two means.  

The easiest and cheapest way  is to use witness statements help insurance injury claim settlements

The next best way to make a poor or mediocre medical record into one that will support a high value insurance claim settlement is a narrative report doctors help insurance injury claims via furnishing information in addition to their actual records.  You will have to pay for this one.  We teach our diy insurance claimants at SettlementCentral.Com how to obtain good narrative reports.


#4. Quality of your “general doctor”—why no referral to a neurologist?

I rarely ask about the doctor involved with the victims who ask questions here.  But two things kind of stuck with me when I read and then re-read your narrative.  I have no basis to disrespect or to challenge your doctor, Michelle.  But I would not be doing my job if I did not respectfully invite you attention to these possible issues.

First was the lack of medical information you conveyed in a case where there ought to have been more to say.  Maybe your doctor did give you thorough records with a full description of what happened to you and what you can expect in the future.  

But if that were true, why is that not in your narrative?  I looked at your background, Michelle, and also what kind of writer you are, and I made a guess that the kind of information I am talking about is NOT in your records from this “general doctor” of yours.  

The second thing that stood out was the lack of referral to a neurologist. If the pain radiating to the left arm were only moderate or of short duration, then there would be no need for a referral.  But instead you state that the left arm pain was “excruciating”—and I am led to believe that it continued for much of the time under treatment.  

If that is the case, wouldn’t most general practitioners want their patient to see a specialist in nerve damage: a neurologist?  

Forgive me for bringing this up as I am not questioning your doctor, Michelle, and I have no basis at all to draw conclusions about him, but I am reminded of many of the doctors we had to deal with in the county where I had my personal injury law practice.  This was a small county of about 145,000 people, and while there were some “modern” doctors, a great many of those in the medical arts were kind of stuck in their ways, not tuned in to new procedures, and not willing to go out of their way to support their patients who had personal injury claims that depended upon having a thorough medical record with solid opinions.

We would commonly see these THREE kinds of problems in the medical records created by these doctors: (a) incomplete records; (b) hedging or waffling; and (c) failure to make referrals to specialists.  Here is some detail on those problems, and of course I am not accusing your doctor of any of these—but perhaps it might be useful for you to consider some of the challenges others have had to deal with when making an insurance claim based upon the records of a “general doctor”.

(a) incomplete records.

They would tell their patient (my client) one thing during the consultation, but that would never appear in their record. All kinds of information and opinions were exchanged in person, but when I got ahold of my client’s records from that doctor, not a word of what had been said appeared anywhere.

(b) ) hedging or waffling

They would hedge their opinions, making a less-than-solid diagnosis or prognosis.  If there was any question of causation, their diagnosis would leave the issue ambiguous.  If the client was told to expect further pain and symptoms if she engaged in certain activities, that part of the prognosis was missing.  We could pick out which doctors would waffle in their opinion, using words like “possibility, “might likely”, “unable to say for sure” (this is an overstatement of the basic degree of proof needed to support a medical opinion—thus the doctor is creating a false “strawman” that he can shoot down).

Here is just a brief introduction to waffling that is discussed on three pages of the SettlementCentral.Com members’ side do it yourself insurance claim help.  

“1. Why do Treatment Professionals "WAFFLE" in Their Written Records and Reports?

When a treatment provider wants to avoid the unpleasant consequences of the legal system, he will vacillate: he will appear to support his patient, while leaving enough wiggle room to avoid being tied down to any one supportive position. Among personal injury attorneys, this is known as "WAFFLING". To waffle: verb—TO VACILLATE in speaking or writing; as in: "He waffles between loving the movie and hating it, depending on who's asking."

Let's face it, most treatment professionals are in business to treat their patients: they DO NOT want to be dragged through the court system should you have to file a lawsuit. Take a moment to see things from their perspective.

Anytime they go full out in support of a patient in terms of either etiology (i.e. the cause of your present injuries and suffering) OR prognosis (i.e. predicting the necessity for future medical care), your treatment professional KNOWS that she is exposing herself to some unwanted consequences.”


Three personal injury attorneys created www.SettlementCentral.Com for self help insurance injury claim do it yourself settlements.  One of our attorneys used actual doctor reports for his examples (changing names, of course).  There are many examples in our members’ side where we teach members how to spot waffling, and what to do about it (we have do it yourself pages on how to tactfully educate your doctor on the low standard of proof for medical testimony in civil cases).  Here are just two I grabbed for illustration of this point.

"The question is did the accident contribute to recurrence of her hiatal hernia? It certainly is a POSSIBILITY—that is a known mechanism for rupture of the diaphragm with herniation of abdominal contents into the pleural space and it COULD STAND LIKELY that increased intra-abdominal pressure from a motor vehicle accident could force a recurrent hiatal hernia. I am UNABLE TO SAY FOR SURE but since she was asymptomatic before and complained of reflux symptoms after the accident, and it is a mechanism, it SHOULD BE CONSIDERED."

COMMENT: Instead of supporting his patient, he waffles. Words like "possibility", "could stand", and "should be considered" DO NOT SATISFY THE BURDEN OF PROOF in support of the patient's claim. Yes, they are admissible into evidence, but in this case it is going to be the tortfeasor who will seek to admit this report into evidence. Basically it disproves the patient's claim since there is no medical opinion that this trauma was the source of her problems.

Question, Michelle: what did your doctor put in his report about any problems in day-to-day life you were having that would have kept you from full performance of your work tasks? Here is one doctor who avoided the issue by making a false strawman with standards way above those necessary for a medical opinion.

"In response to Ms. Joseph's request for support of eighteen days off of work I am unable to confirm the medical NECESSITY of that kind of absence. My recollection is that we discussed only a few days, something less than a week away from work to rest her body and facilitate her recovery. I cannot SAY FOR CERTAIN that any more than that would have been an ABSOLUTE NECESSITY."

I am sorry that I do not know how to make HTML markup for the text, so the words that were highlighted on the SettlementCentral.Com insurance claim website show up as just plain text above, but hopefully you can spot the waffling these two doctors put in the records of their patients.  AHHHH … I got it—I will go back and CAPITALIZE the waffling words—how will that be?  Done!

In this last example, the doctor avoids giving an opinion by making a false “strawman” that is easy to avoid by grossly OVERSTATING the degree of proof needed to support a medical opinion. He DOES NOT have to make any opinion "for certain". Nor does the claim for lost wages depend upon the time off being "an absolute necessity".

(c) failure to make referrals to specialists.

I have no idea of the monetary fund available to you for referral to a neurologist.  Maybe you were paying out of your pocket, so a referral would be an expense your doctor sought to avoid.  But because I am guessing you had first party PIP or Med/Pay coverage, the expenses of a neurologist likely would not be a factor in deciding whether or not to seek the opinion of a specialist.  

I just wonder whether or not a neurologist might be better able to give you a more accurate prognosis, since this is the kind of injury they specialize in.  He would be willing to opine as to what kind of activities in future years might trigger pain from the now-quiet nerve.  What did your general doctor have to say about this important topic?


#5. Probably off topic for your doctors, but what about TMJ as cause of headaches?

Let’s just take a very short time to go over this because it will be totally foreign to you and to your doctors, so you will do nothing about it, but I will just put it out there as a possible explanation of headaches.

This was totally foreign to ALL of my client’s doctors also.  They just do not know about it and so they NEVER ever make a referral to have it checked out.  The doctors are 100% sure that the headaches come from cervical injury, “so do NOT bother us with new stuff we do not know about.”  That was as true for me as it will be for you.  But, I am duty-bound to at least give you the information.  

Just skip over this quickly since you will do nothing with it, unless of course the headaches were to come back.  Anyway, you can have your husband give you the self-test I am going to put down below.  So, in all its glory, here is a likely source of the headaches because when your head moved quickly backward, the skull part moved at a different speed than the jaw, hence leading to dislocation of the little disc in the mandibular condyle.

TMJ—temporomandibular joint syndrome: possible source for any HEADACHES.

This is another term you might want to research.  When an accident victim strikes her head back as hard as you did, there is a good possibility that the disc in the condyle, or jaw joint disc, can be displaced.  One of the consequences of jaw joint displacement is headaches.  All too often in my practice, the doctors treated headaches as having originated from cervical problems, when in fact, they were due to a TMJ.  


There are two at-home ways to see if your jaw joint is CLICKING when moving.  First, find the spot in front of the little lobes on the middle of your ears.  These are called “tragus”:

Now, put your fingers just in front of the tragus and over the jaw joint and open and close your mouth.  If the disc is far out of place, you will feel a click.  Better is for someone to stand behind you as you are seated and perform the same test.  That person can feel the click if your jaw joint disc is far out of place.


#6. No worries on the allegation of “preexisting condition”

This topic does have TWO parts, Michelle.  First is as it relates to your lower back and second is as it relates to your neck.  The lower back part we will treat here, and the neck in the next section.  

BUT BOTH of these are going to require a good solid base of information or documentation for you to prevail in the easy way I am proposing.  That solid base of information is twofold: (a) establish your preexisting condition prior to the accident, and (b) establish your condition post-accident.

You will use the doctor’s reports, primarily.  A good doctor does maintain a solid factual record that can establish these pre and post conditions.  Now there are many doctors who do not maintain thorough records.  If this is the case, you have two ways to establish your facts.  

Both of these are given to you elsewhere in my answer here, to-wit: narrative reports and witness statements.  You can, AND MUST (if your doctor was not thorough) use both of these to establish your pre and post-accident condition.  

You will let the lay witnesses state what activities you could do and post accident could not do.  And recall that what we mean by “do” does NOT mean the actual physical activity, we must include the pain at night and the next day in a determination as to whether or not you could or could not “do” any particular activity.  Does that make sense?

OK, as for the lower back, you stated: “This accident also exacerbated my pain in lower back.”

You will AND MUST get paid for suffering that pain.  But to do so you will need to show how you were before and how you were after the accident.

Do NOT WORRY if you were symptomatic prior to the accident.  You will get paid for the degree to which the trauma exacerbated your preexisting condition. This is a measure of damages that is mandated by the jury instructions in your state that call for full compensation for the degree to which your existing symptomatic condition was made worse.  

And of course if you had no symptoms prior to the accident (asymptomatic), you will be paid for what we call a light-up of a previously asymptomatic condition.  Here again, it is YOUR burden to prove the facts: what could you do pre and post, AND when did you ever complain of pain from the site pre-accident, compared to the pain and suffering from that site post-accident.


#7. Possibly WAAAAY off topic, but brought up to you “just in case”: preexisting cervical condition.

The insurance adjuster might try to tag you with a cervical preexisting condition from your prior fall.  This is possibly WAAAAY off topic, but brought up to you “just in case”: preexisting cervical condition.

What if you had a preexisting cervical condition that was a result of your earlier fall (and natural aging?), but which was asymptomatic (i.e. you had no symptoms) prior to the accident, but which the accident lit up?   This is something I am going to throw in here, Michele, not to confuse you, but just so you might have some familiarity with it in case you do decide to go forward on your own.  

The adjuster might say that the previous fall (and natural aging) left you with a preexisting cervical condition.  He would be trying to diminish your present claim, but if you understand what I am going to give to you here, you will be able to make this into something he would have wished he never stepped into!  Here is how.

“Prior to the accident I had no sign whatsoever of any cervical problem.”  You prove this with both your medical records AND lay testimony. We wrote an entirely new car wreck Witness Module at www.SettlementCentral.Com on the members’ side, but we probably need to put up some additional information on the free side.  You can use the search function to find some pages, but here is a link to one that might be of some help to start.  Auto accident witness tips insurance claim online free help.

But if, in fact you, MR. ADJUSTER, are correct, and I did in fact have a latent defect, then your insured is LIABLE ALL DAMAGE caused, the entire present condition of cervical radiculopathy because North Carolina adheres to the long-standing legal principle of compensation for the “egg-shell skull victim”.”

It is said that the tortfeasor takes his victim as he finds her, and is thus responsible for damages caused, even if they are beyond what would be expected to be suffered by an "average" or "normal" person of the same age.  Put another way, this is the "Eggshell Skull Rule":

North Carolina adheres to this “eggshell skull” rule:

Here are a couple of ideas on how you could present your history.  Use what you like and toss the rest, correcting and adding as appropriate, of course.

For about seven years prior to this accident, I had no complaints of any neck, mid-back, or low back pains.  Hence, we need to see your insured's negligence as the SOLE cause of all the pains I suffered after this accident.

We need to come to a satisfactory understanding on this issue up front, otherwise there is no use in proceeding with discussions because I know from an attorney that in court I will receive full value for all injuries suffered as the result of this accident.  As of late 2005, I was fixed, stable, and restored after treatments from my fall in 1997.

For at least seven years prior to this accident, I was fixed and stable and fully able to enjoy life and participate fully in my work and daily activities

ACTIVITIES.  In the last seven years before this accident, I was able to participate in the following physical activities without suffering pain afterwards.  


•   Home.      

•   Recreation.  


The medical records you already have support my position fully: I was at maximum medical improvement, fixed, stable, and fully restored for at least seven years prior to this accident.  My general practitioner medical doctor’s records show that I had no treatments or complaints whatsoever in the seven years prior to the date your insured negligently caused my present injuries.  

Best Wishes, Michelle,  

Dr. Settlement, J.D. (Juris Doctor)


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Doctor Settlement


27 years of front line plaintiff`s trial lawyer experience in PERSONAL INJURY INSURANCE CLAIMS. Along with other attorneys and insurance adjusters, we have created a website to help injured people settle their own personal injury claims. With the help from feedback from hundreds of satisfied members, has become THE AUTHORITY for Internet personal injury insurance claim settlements. I am humbled and honored if people can benefit from my experience and current volunteer work in helping injured people. I hope I can explain things in a manner that is useful for the questioner. If not, do not hesitate to e-mail me and I will take a second shot at it! Best Wishes for your physical and financial recovery.


Life Experience: 27 years of front line plaintiff's trial lawyer experience

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Education/Credentials: J.D. (Juris Doctor) 1977

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