Insurance companies claim that the person injured was partly to blame for the collision or accident. In Virginia, if the defendant/insurance company can prove that injured party was negligent (failed to use ordinary care) and that the negligence was partly to blame for the accident, then the injured party is not entitled to be compensated.
“How could you have been hurt when there was only a small scratch on the bumper?” This is a common reason carriers give for why their offer is low. However, from a treatment standpoint, it does not matter what the damage was to the car. The doctor treating the injured person does not ask to see photographs of the car. He simply treats the injury. Some doctors will tell you that the force or energy from the collision must go somewhere, and oftentimes it creates the mechanism for the injury.
The investigating police officer will usually note if there were any injuries at the scene of an accident. Sometimes they do not question everyone or it will appear that everyone is okay. Frankly, after collision, many people have high adrenaline levels and do not realize that they are hurt. For many connective tissue injuries, symptoms may not even be felt until the next day.
If you stop getting medical treatment for three or four months and then return to the doctor, the insurance company will almost surely point out that there is a “treatment gap”. How that affects whether or not you were injured is beyond me, but they use this excuses frequently. One would think that the insurance company would appreciate a person not over-treating, but they find a way to use it as an excuse for a low offer.
This reasoning comes up frequently when a injured party has extensive chiropractic treatment, physical therapy, injections, or emergency room visits. The insurance company has doctors whom they regularly hire to will say that a person with soft tissue injuries should be better in 6-8 weeks. Insurance companies will therefore often only consider treatment for up to six weeks. It should be noted that juries often are often skeptical of huge chiropractic or physical therapy bills that are strongly supported by the treating medical doctor.
This excuse often appears in neck and back injury cases that are the result of a car wreck. If a person suffers any neck or back injuries including serious injury such as a bulging disk that requires surgery, the insurance company will try to blame it on a pre-existing condition such as degenerative disk disease. Essentially they will use prior medical records to establish that there was a problem before the accident that the problem is responsible for the injury.
Many people who have talked with us after speaking with an insurance adjuster mention that they were told this by the insurance company. Of course it makes no difference at all if anyone else in the accident was hurt. Whether a person is injured can depend on where the impact occurred, how they were situated in the car, and multiple other factors, none of which is whether someone else in the collision was injured.
Subjective injuries are those that cannot be shown on x-rays, MRIs, CTScan, or are not readily obvious like a cut or gash. An objective injury would be one that could be easily noticed or seen in a diagnostic test. Many injuries or pain requires that a doctor rely on what the patient is telling them. Medical experts will confirm that just because there are no objective signs does not mean that a persona is not hurt or experiencing pain. Even so, the argument will be made or insinuated that you were not really hurt.
I have never seen a defense attorney argue this to a jury, but I hear it all the time from insurance adjusters. The argument is that the bills were high because so much of the treatment was testing to find out what was wrong. In some cases the test might be used to confirm that there was not a tear or a herniated disk, but that does not mean the test was not necessary. The argument is that you were not really being treated, just tested.