Do NOT damage your personal injury case, which will also reduce your compensation. Learn how to protect your claim.
How Not to Damage Your Claim
Every day we are approached by good people injured in an accident who assumed the negligent party’s insurance company would treat them fairly. Adjusters tell them to get better soon and to just send them the bills when they are done treating.
These personal injury victims are shocked when they forward medical bills and records as requested and receive an offer back that doesn’t even cover the medical bills they incurred – let alone compensate them in any way for the pain, suffering, mental anguish, and inconvenience caused by the accident.
So here’s some straight talk: Insurance companies do not exist to fairly compensate injured victims. They exist to make money for executives and shareholders. They make more money the less fair they are with claimants. Although a few reputable insurance companies still exist, the vast majority are getting more and more aggressive in trying to delay and deny legitimate personal injury claims.
That’s just the world we live in. That insurance adjuster that was so nice to you the first few times you spoke to him or her? Just watch how their tone changes when it comes time to try to fairly resolve your case.
Hint: They don’t get bonuses for paying you fair compensation. They get bonuses for saving the insurance company money. You are just another claimant to them, nothing more than a number to run through a computer algorithm. Now – more than ever – it is absolutely imperative that your personal injury case be developed and managed properly so that you are in a position to be fairly compensated.
Make no mistake: Claims adjusters will make each and every argument they can to minimize your compensation. You need experienced representation to navigate the process… someone who can assist you in not making a mistake that could jeopardize your case.
Acknowledging Prior Injuries is the #1 Way to Avoid Damaging Your Case
Credibility is everything in a personal injury case. It is critical that you always be honest and forthcoming regarding any prior injuries you have sustained – especially in regards to injuries to the same body part(s) injured in the accident at issue.
Under Texas law you are entitled to damages even if an accident only exacerbates a pre-existing condition. It is very important that you immediately let your attorney know of any prior injuries including any prior personal injury claims and/or prior workers’ compensation cases.
It goes without saying that it is also very important that you let your treating physician known of any prior injuries you have sustained. This will allow the physician to obtain a proper medical history from you so they can properly document any new symptoms caused by the accident.
We regularly represent clients who have had a prior car accident at some point – before the one we are assisting them with. Most of the time the clients sought medical treatment for a few months and then made a full recovery or something close to it. We encourage clients to be transparent with us and their treating physician(s).
If you were involved in a prior wreck and made a full recovery from same how would that hurt your current personal injury case?
Hint: It doesn’t. What would hurt your claim? Not identifying you were involved in a prior accident and giving the adjuster – who will find record of it – a reason to doubt your credibility and suggest you’re trying to hide something.
The best approach is to be forthcoming. “Own” the prior injury or injuries. Focus your efforts on identifying any new symptoms you are experiencing as a result of the accident at issue.
For example, maybe you have a manual labor job and previously let your family doctor know you have 3/10 low back pain and have to take OTC pain medication to get relief.
If you are subsequently involved in a major motor vehicle collision it goes without saying that your low back pain is likely to significantly increase.
If your low back pain increases to 7/10 let your doctor know. If you develop symptoms you didn’t have before the wreck – such as weakness, numbness, or tingling – let your doctor know.
You can’t un-ring the credibility bell. The best approach is to give a full and accurate medical history and focus on how your health has changed as a result of the current accident.
The following demonstrates how easy it can be to respond to an adjuster that would try to focus on a prior accident under a couple different scenarios:
Scenario 1: Very Limited Prior Treatment and Recovery
Adjuster: I ran your client through our system and noticed they were involved in a prior wreck in 2015.
Attorney: That’s correct. My client wasn’t keeping that a secret. He told his treating doctors about it.
Adjuster: It’s obvious a lot of his low back pain was pre-existing.
Attorney: That’s categorically false. He did two months of physical therapy following the prior wreck and made a full recovery. Before the wreck at issue he had no complaints of low back pain whatsoever. In fact, his doctors didn’t even order an MRI of his low back after the first wreck so it is apparent they believed he had made a full recovery.
Scenario 2: Currently Treating at Time of Accident
Adjuster: I see your client injured his low back at work a year before this accident and was still treating for that injury.
Attorney: That’s correct.
Adjuster: So your client already had a bad back. I don’t see how we owe money for this.
Attorney: It’s true he had low back pain before this accident but – if you look at his prior records – you’ll note that his pain was only 5/10. His work-injury doctors believed therapy alone would be sufficient to allow him to recover. After the wreck at issue my client’s pain increased to 8/10 and you’ll note he started experiencing radicular symptoms – specifically shooting pain down his right leg.
Scenario 3: Prior Diagnostic Imaging
Adjuster: I see your client underwent a prior MRI following a 2014 motor vehicle accident.
Attorney: Yes, he did.
Adjuster: Your client had a prior low back injury that was bad enough to warrant an MRI.
Attorney: I’m glad you want to discuss the imaging results. You’ll notice my client was diagnosed with a 2 millimeter herniated disc based on the imaging study obtained after his work injury. As you know, he underwent a new MRI following the wreck at issue because his pain significantly increased and he started experiencing weakness in his right leg. The results of the new imaging study revealed that the wreck at issue caused his herniated disc to increase from 2 millimeters to 4 millimeters – which certainly explains the new symptoms he is experiencing.
As you can see above, being forthcoming at the onset preserves your credibility and allows an experienced lawyer to seize control of the narrative.
Prevent Gaps in Treatment
We understand that life doesn’t stop just because you were involved in an accident. You still have bills to pay. The kids still need to get to school and events. You continue to have work demands, errands to run, and all the other various tasks that make up the day.
Now you’re injured and a physician has recommended physical therapy three or four times a week. You decide it’s just too much. You only make it to therapy once or twice a week. Later, you have a big work project and you miss two full weeks of therapy.
You trust, however, that the insurance adjuster will understand your plight and be fair with you when it comes time to negotiate a settlement.
So here’s some straight talk: Insurance adjusters are paid to argue on behalf of insurance companies. They receive more compensation by awarding you less compensation.
Hint: They are not paid to be understanding. They don’t want to acknowledge that a wreck throws a real monkey wrench into your life. Frankly, they could care less about the stress and hardship the accident caused you – “they’ve heard it all before.”
They would rather weaponize your missed therapy appointments. They’ll suggest you obviously “weren’t that hurt” and focus on the fact that you were non-compliant. This brings us to another major pitfall to avoid that could really damage your case… a gap in treatment.
Generally, when an insurance adjuster references a gap in treatment they are referring to one of two scenarios.
Scenario 1: Initial Gap in Treatment
Let’s say you’re involved in an auto accident with significant property damage. Your head is ringing and your neck is bothering you but you decide not to be checked out at the emergency room. You figure you’ll feel better soon.
A few days pass and you decide you’ll go to the pharmacy and load up on some OTC pain medication and see if that makes a difference. You pop pills for 2 weeks but your pain is getting worse and worse. You decide to contact your primary care physician.
Your physician tells you the next available appointment is in 2 weeks or – possibly tells you – they don’t accept third-party insurance. You spend the next 2 weeks just trying to find a doctor who will agree to see you. It has now been a month since your car accident and you have not been examined by a doctor or sought any medical attention whatsoever.
Guess what? The insurance adjuster is going to let you know about it. They’ll casually suggest you must not have been that hurt since it has been a month and you haven’t bothered to go to the doctor.
They don’t care that you were trying to just monitor your injuries and see if they improved. They don’t care that doctors have schedules and that it took time for you to get an appointment when OTC pain medication didn’t provide adequate relief. They are going to attempt to use an initial gap in treatment to minimize your personal injury case.
What to Do? If you are involved in a major collision it is always advisable to err on the side of caution and get examined at the emergency room. At a bare minimum you should consider seeking out the opinion of your primary care physician in the days following the motor vehicle accident if your primary care physician will agree to see you.
Remember: Our law firm has relationships with various medical providers who routinely treat accident injury victims. These providers agree to delay billing for their services until the conclusion of your claim so you can focus on getting better, instead of worrying about the medical bills piling up.
Scenario 2: Sporadic Treatment
Let’s say you start physical therapy at a clinic and they recommend three sessions a week. The first week you make all three sessions. The second week something comes up at work and you miss a session.
The third week you’re dealing with some family drama and miss two sessions. A few weeks later you miss a session because you wrote the date down wrong. A few weeks after that you miss some appointments because something else has come up at work.
Like we said above, we understand that “life happens.” Adjusters, however, don’t care. They will argue that all your missed appointments demonstrate you “weren’t that hurt” and were non-compliant with your treatment. They will likely offer you pennies on the dollar.
What Should You Do?
Do your best to make all of your scheduled therapy sessions and doctor appointments. If you need to miss one let the clinic or doctor know and try to reschedule it for the same week. Adjusters will make every argument they can to delay or deny your personal injury claim.
Enlist the help of family and friends so you can be compliant with your medical treatment and get the help you need to recover.
Remember: We have relationships with law loan companies that can advance money on the settlement proceeds of your personal injury case, if you require funds to make doctor appointments or to take care of bills while your case is pending, and so you can make necessary doctor appointments.
As you can see above, avoiding a gap in treatment will help you to maximize your case value and prevent the insurance adjuster from suggesting you weren’t really injured.
Insist on an Investigation & Gather Evidence at the Accident Scene
Failing to gather evidence at the scene of a car wreck or other type of accident is another way you can seriously damage your case.
Let’s say you are in stop-and-go traffic on the Dallas North Tollway during your morning commute. You’re minding your own business when an inattentive driver – furiously texting away – doesn’t realize traffic is (yet again) coming to a stop and rear-ends you. You both pull over and get out to inspect the damage.
Your bumper is significantly damaged but the vehicle remains driveable. You suggest calling the cops to have a report made but the at-fault motorist says they have an important meeting and can’t wait. They sincerely apologize for causing the auto accident and offer to exchange insurance information.
You agree to do so and let them get on their way so they can make their business meeting on time. When you get to your office you call the at-fault driver’s insurance company to file a claim. You are shocked – days later – when you receive a denial letter in the mail.
So here’s some straight talk: It’s an unfortunate reality that some people are just not honest. They sometimes say one thing at the scene of the accident and then later conveniently change their story when they talk to their insurance company.
Hint: Protect yourself! Always insist on a police investigation and gather evidence at the scene, especially if law enforcement is unavailable.
Call the Cops / Insist on a Police Report
Even in rear-end collisions insurance carriers can (and do) deny liability. Often times the at-fault motorist will claim you switched lanes in front of them and that’s why the collision occurred. Or they might try and suggest that you were at fault because you suddenly stopped unexpectedly in front of them.
The bottom line is that some people will say whatever they need to say to pass the buck and not have to take responsibility for their actions.
What to Do? The above scenarios illustrate why it is so important that you make every effort to have a police officer come to the scene of the accident and complete a Texas Peace Officer’s Crash Report.
People are less likely to mislead a police officer and jurors generally give weight to the findings of officers since they are trained in accident investigation. You may be asked if you were injured in the wreck.
If you are experiencing any pain whatsoever you should answer in the affirmative as that will make it more likely that an officer will be sent to investigate the collision.
Remember: Cities often have different preferences and/or standards on whether an officer will be sent to investigate a motor vehicle collision. It is more likely an officer will be sent if the accident involves major property damage or if injuries are reported.
Obtain Evidence at the Scene
What happens if an officer is unavailable or the police department refuses to send someone to investigate the car accident? All hope is not lost. You can still take steps to protect yourself by obtaining evidence at the scene.
What Sort of Evidence Are You Trying to Obtain? For starters, make sure you take photographs of the damage to all vehicles involved in the collision. You should also obtain a photograph of the driver’s license, insurance card, and license plate of any other drivers involved.
If the at-fault driver admits liability ask him or her to do so in a video or audio recording. If they refuse ask if they will sign a written statement acknowledging responsibility for the loss. You should also immediately try and identify any witnesses to the wreck.
You will want to get video statements, audio statements, or written statements from them as well. Make sure to ask witnesses to provide basic contact information so they can be located in the future should the need arise.
Remember: Most people that acknowledge fault do not later change their story but some, unfortunately, do. You should take reasonable steps to make sure you are protected in the event someone later tries to shift blame for the loss.
Don’t Provide a Recorded Statement Without Counsel
Often clients retain us after they have already provided a recorded statement of the accident to the insurance company and that’s okay. Mullen & Mullen Law Firm should still be able to assist with the case.
Sometimes accidents are straight forward – as in a rear-end collision. Sometimes an independent witness is available to provide an unbiased account. Sometimes you get a fair adjuster who asks fair questions. Here’s the thing – sometimes you don’t.
So here’s some straight talk: Insurance adjusters often try to deny as many claims as they can. After all, it saves their company money. They get a promotion and a raise. If you agree to a recorded statement after your accident, the odds are the adjuster will ask questions where they know your answer can be used against you later no matter what your response is.
They will ask you questions in a suggestive manner and try to lead you somewhere you probably shouldn’t go. They might ask confusing questions about your accident and hope you slip-up trying to decipher and answer them.
They’ll act like your friend – while simultaneously probing to find a way to suggest the accident was your fault or that you were comparatively negligent. For all of these reasons you should make sure to have legal counsel available to assist you.
The Initial Medical Questions
In the immediate aftermath of an accident you are unlikely to know the full extent of your injuries. Your pain may wax and wane. What hurts the most on a particular day might change. Symptoms may worsen over time. You risk serious damage to your case if you attempt to discuss your injuries before you even understand what they are.
Mullen & Mullen rarely allows adjusters to ask any questions whatsoever regarding the nature of injuries at the onset of a case. From time-to-time Mullen & Mullen Law Firm allows adjusters to ask follow-up injury questions after a settlement demand has been submitted since – at that time – the client has usually concluded therapy and a has much better understanding of the nature of his or her injuries.
Why Does This Matter?
Say an insurance adjuster asks you what parts of your body are hurting two days after an accident. You mention the giant bruise on your arm and some intense low back pain. You have some neck pain but it pales in comparison to the pain in your back – so you don’t bring it up. You also don’t mention the headaches you had been experiencing.
Months later you’ve been diagnosed with a moderate concussion – explaining the headaches – and you’ve had to undergo a cervical epidural steroid injection because your pain level increased and therapy alone failed to provide adequate relief.
Now the adjuster gets to suggest you’re exaggerating your injuries because – when he or she talked to you right after the accident – you didn’t mention anything about your neck or anything about headaches.
Discussing the Accident
It is important to keep things simple and to be prepared for the “trap” or “gotcha” questions. A personal injury expert can prepare you to discuss the accident in a straightforward manner and give you a heads-up on the questions that are likely to be asked.
The biggest “trap” questions often arise when the adjuster is looking for an angle to suggest you bear some responsibility for the loss. The adjuster can be staring at a police report that puts 100% fault on their insured and still be probing for a way to suggest your actions – or the lack thereof – caused the accident.
This is often seen in intersection accident cases where a driver runs a red light. The adjuster might ask precisely how far you were into the intersection at the time of the impact. The adjuster is going to try and get you to agree that you had a clear line of sight.
They’re likely to ask if you were required to make sure the intersection was clear before you entered it. See where this is going? You could have scanned the intersection. You could have waited two seconds to get moving.
Maybe the other car was speeding, and you didn’t have enough time to react. Maybe your view was obstructed by a large SUV. An experienced lawyer can help prepare you for the tricks the adjuster is likely to use based on the specific facts of your case.
Do You Have Anything You Want to Add?
This is a hidden “gotcha” question in that – if you aren’t careful – you can sink your case with loose words and stream of thought rants and raves. This is a question where they essentially hand you a rope in the hopes that you will hang yourself.
Getting in a car accident is a traumatic experience. It can completely turn your life upside down. Emotion is certainly involved. An adjuster knows all of this. They ask that final question in hopes that you’ll just start volunteering information – “data” if you will – that they can later use against you. They want you to talk and talk.
They want you to keep explaining. They’ll ask follow-up questions to follow-up questions based on what you *keep* saying. Sometimes less is more. A good lawyer will help prepare you to address any critical issues during initial questioning. If properly prepared for a recorded statement you should be comfortable saying “No” to the question above.
Don’t Go It Alone!
Contact Mullen & Mullen Law Firm today for a free case evaluation.
Shane V. Mullen is an attorney licensed by the State of Texas for the general practice of law, and the Managing Partner at Mullen & Mullen Law Firm in Dallas, TX. His firm focuses exclusively on personal injury law and has been in business for 40 years (since 1983). Before becoming a lawyer, Shane worked for his father as an accident injury claims investigator.