Archive for the ‘Evidence’ Category

Physician Assistance on Proof of Wage Loss

Previously I posted a blog on this subject. Since that time, I don’t believe that much has changed with physician’s offices concerning this subject, so I am revisiting this issue to give health care providers another opportunity to make changes to their policies and procedures to assist personal injury clients with proof of their wage loss.

I make the preliminary comment that there is a big difference between the records of physicians who are familiar with the ins-and-outs of personal injury insurance claims and those that do not have this experience.

I have a current auto claim involving a teacher. The client’s medical records say nothing about him missing work, nor do they make any comment about the difficulties that he experienced while at work as a result of his injuries. He had to take off a half day of work to visit the chiropractor. He took several full days off work immediately after the accident. He also missed full days of work periodically because of a flare up on his injuries. There is nothing posted in his medical records about any of this.

The school district does not require a doctor’s excuse for an employee to utilize their sick days or personal leave days. The use of sick days has a damage value equal to the client’s daily rate of pay, even though the injured party did not lose any income because he used them.

I have been informed that some physicians don’t have off-work slips to give to their patients. If your office doesn’t have them, you should generate a simple off-work excuse form. Give one to the client so that they can forward it to their human relations/payroll departments (even if it is not required), so that the reason for the absence can be documented.

Obviously, if the physician doesn’t query the patient about their work absences and the difficulties that they are experiencing at work, then those wage loss details cannot be documented. I don’t believe that many physician’s offices routinely ask their patients if they had to take off work to be able to treat with the provider.

So, in this example, the teacher had about $8,000.00 in wage loss, but the adverse insurance company did not assess any damages for lost income because there was nothing in the medical records, human relations and wage loss documents from the school district to verify that the absences were related to accident-related injuries.

I would like health care providers who treat accident victims to be aware of this insufficient documentation of wage loss damages.

So what can physicians do to assist personal injury patients with verification of past wage loss?

1. The doctor must be cognizant of the fact that wage loss needs to be documented, so that he can query the client about it.

2. Since a doctor’s excuse can be an element of proof for past wage loss, the treating physician should always give the patient a doctors excuse to verify any absence from work, whether the employer requires it or not. The doctor should advise the patient that he should forward the doctor’s excuse to their personnel department, payroll department, or human relations department, so that it becomes part of their payroll/personnel records.

3. The physician should document any absence from work in his patient’s records by referencing how the patient’s condition prevented him from working and/or how the patient’s condition would be exacerbated by the physical tasks associated with the patient’s work.

4. Previously, I have written about how references to “duties under duress” can increase the value of a claim because they objectify pain and suffering. Likewise, the physician should inquire on each visit about how the patient’s condition is affected by work. Are you experiencing any pain while working? Have you missed any days/hours of work because of your injuries and associated pain since your last visit? If so, this information should be documented in the patients medical records. If interim full days of work have been missed, the physician should comment on his opinion concerning whether this missed time from work was reasonable and consistent with the patients injuries. Obviously, this documentation may take a few minutes to do, but it is extremely valuable to verify and take the mystery out of proof of past wage loss.

5. The patient should communicate the difficulties he’s experiencing at work to the physician, even if the physician doesn’t ask about it. When the physician asks the question (how have you been doing since your last visit?), the patient should communicate information concerning his work difficulties to the physician. Documentation of wage loss and difficulties experienced at work is a two-way street. The patient should communicate wage loss and work distress information to the physician, and the physician should inquire of the patient about how his work is affecting his injury, and document this information in his records.

6. Insurance companies don’t like to pay for past wage loss and have been successful in defending wage loss claims because of lack of documentation in medical records. Obviously, if wage loss and work distress information is entered in a patient’s medical records, the insurance companies will be more inclined to award them adequate compensation on their wage loss claim.

Lack of wage loss information in medical records makes these claims easy to defend. Work distress documentation is also important for proper documentation of pain and suffering in general. If the physical requirements of a patient’s work affects their accident-related pain and suffering, then documentation of this work distress must be noted in the patient’s records.
This is a common sense plan of the verification and documentation of past wage loss. To my knowledge, nobody has taken the time to articulate to physicians how important proof of past wage loss is to a personal injury claim. Hopefully, this article will result in the beginning of an improved plan for the documentation of past wage loss and the distress that injuries place on a patient’s ability to perform their work-related duties.

Low Property Damage Motor Vehicle Accidents- Why Are People Injured In These Accidents?

Anybody that tells you that people cannot be  injured in low property damage-bumper kiss type accidents is presenting a generic and biased point of view.

Human logic has a tendency to equate the severity of auto accident property damage to the  severity of injury potential produced by these accidents. This is a common misunderstanding of intuitive reasoning.

Most jurors have this bias, however they still tell us during voir dire that they can be fair and impartial jurors.

Just about everyone that has been driving long enough has rear-ended someone. It isn’t a pleasant experience to have a claim brought against you for a minor property damage car accident for which you were at fault. Personal integrity is often compromised when the person who caused the accident fails to take responsibility for their negligence. They take the position that,  Yes, I rear ended him but he didn’t get hurt.

Logically, you can’t say that neck and back injuries that develop within 24 hours after a low property damage accident have no causal connection to the accident that preceded them.

Insurance companies take the advantage of this intuitive misunderstanding in defending these cases. They use biomechanical experts, who make a good living expressing opinions that low property damage equates to no injury potential despite their lack of medical training.

If that proposition is true, then there should be a direct correlation between the accident-related  property damage and the severity of injuries sustained by the occupants of a vehicle. However, some people walk away unscathed from a motor vehicle accident where their vehicle is totaled while others are injured in accidents with low property damage.  So there is no direct correlation between property damage and injury potential.

Some people do walk away from minor property damage rear-end car accidents without injury. In my experience, however, many are legitimately injured, and some never recover from their injuries.

Do we fully understand the connection between low property damage accidents and the musculoskeletal injuries that follow them? The answer to that is, no.  However, today we know more about how people are hurt in these accidents than we did in the past.

Whiplash injuries commonly referred to as Cervical Acceleration De-acceleration trauma (CAD trauma) cause unusual spinal movement. Sudden acceleration of the occupant’s body is followed by sudden de-acceleration of the body (whiplash).  If the rear of a vehicle is not hit straight on, there can be oblique forces of rotation further complicating the biomechanical sequence of a whiplash body movements  which increases injury potential.

Torso overspeed means that energy released  form a compressed seat back during a rear-end collision can occur at the same time as forward movement of the body, which occurs during de-acceleration phase of a rear-end accident.  This recoil of the seat back adds energy to the forward movement of the body during de-acceleration and contributes to the potential to injure the lower back.  Older  governmental standards for stiffer seat backs have contributed to this injury potential sequence.

Vascoelasticity is a property of human tissue’s reaction to  forces and loads. Under  loading the tissue becomes stiffer and more brittle.   Since acceleration and de-acceleration loading and unloading, including path reversals, occur in one-third of a second, this makes  normal muscles, cartilages, tendons and ligaments more prone to injury when exposed to whiplash body movements. The most vulnerable tissues to vascoelasticity injuries are the discs, facet joints and supportive ligaments of the spine.

The problem with crash testing is that these tests cannot be done at increasing incremental speeds until an actual spinal  injury occurs.  This would increase energy imposed upon the volunteers to the point where they would actually be injured.  This approach would be highly unethical and would violate  human rights and result in legal consequences to the researchers. Cadavers and crash test dummies can’t provide us with 100% accurate crash test results. Therefore, due to these research limitations and the complexity of head and torso movement during a rear end collision, the threshold collision changes of velocity that produce spinal injury at this juncture have not be accurately determined.

The most accurate way for jurors to determine the injury potential of a low property damage rear end motor vehicle accident is to compare the plaintiff’s physical condition before the accident  to the plaintiff’s physical condition that develops after the accident. If there is no evidence of any other trauma in the interim between the accident and the appearance of spinal symptoms, then this lends credence to the proposition that the low property damage accident was the cause of the injuries claimed by the plaintiff.

Therefore, contrary to popular belief, and contrary to what intuitive logic suggests, low speed rear end impacts often do result in cervical, thoracic and lumbar spine injuries.

What Jurors Should Know About Low Property Damage Auto Accidents (Alleged By the Insurance Industry to be Minimum Impact Soft Tissue Motor Vehicle Accidents

Unless you have had to unfortunate experience of being an injured victim of a low property damage motor vehicle accident, you may have difficulty understanding that people do get injured as a result of these accidents.

The purpose of this blog is to educate readers, who may end up on a jury, that there are two sides to every low property damage motor vehicle accident.

The definition of a low property damage accident over the years has expanded from cases where the property damage was under $500.00 to cases involving thousands of dollars worth of damage. The definition is whatever the insurance company representing the at fault driver defines it to be.

In my experience with auto accident claims and litigation for approximately 30 years,  I have seen hundreds of victims develop serious spinal and other musculoskeletal injuries from low property damage accidents.

Obviously, insurance companies hate these case claims, and they will force the victims of personal injury accidents into litigation and even Trial.  Many personal injury attorneys won’t take them – or won’t keep them if they cannot settle them without resorting to litigation.East Inflatables

Once, while backing out of a driveway and moving very slowly, I ran into a pole supporting a basketball backboard.  The impact was to the rubber part of my steel bumper.  The bumper of my car was  the older type which incorporated bumper shock absorbers. The shock of this impact was so great that I thought that I would develop injury symptoms.  Although I was fortunate not to have been injured in the accident, the impact  really rang my bell mainly because of the unexpected nature of the collision.

I did get hurt from rear end collision where that was part of a four vehicle chain reaction rear end accident. My new Corvette was first in line at an intersection when I was struck from behind and pushed out in to the intersection.  I thought that the rear end of my Corvette was demolished.  When I got out  of the car the only damage that  was visible was a crack in my bumper cover about 2 inches long and the rear quarter panel red lights popped out of their of their sockets.  After this accident  my back started hurting, and it kept getting worse with time. I kept denying that I  was injured but eventually had to get some chiropractic treatment because of horrible low back and leg pain.

Insurance companies often deny these low property damage claims, or offer very little to settle them.  They know that many attorneys will not dedicate the time and expense to litigate them. Juries that hear these cases often do not understand the medical complexities involved with whiplash injuries and  are predisposed to think that people who make claims for these types of accidents are trying to take advantage of the system.  As a result it is difficult to obtain a fair verdict that compensates the victims for the injuries they suffer as a result of these car accidents. However, it is my experience that jurors are reluctant to admit this prejudice during voir dire examination.

Skilled defense attorneys defend these cases.   So, the insurance companies motive in strongly defending these claims is an effort to discourage victims of injury accidents from seeking compensation and attorneys from representing those who do.  The advantage to the insurance company is the production of a ripple effect though the legal community.

Since so many people are hurt in these rear-end low property damage accidents, it cannot be said that these accidents do not produce injury.  It is true that some people walk away from them without injury.  Most adverse drivers that cause these accidents often do not get injured because they have the opportunity to see them coming and prepare for the impact. Their bodies also move in different directions than those whose cars they hit.

Many factors enter into the injury potential of these accidents.  Factors that can increase susceptibility to injury include: body position at the time of impact, lack of head rests, seatbelts locking on shoulder harness straps that only go over only one shoulder, bracing, unexpected nature of the collision, susceptibility to injury due to prior injuries or  pre-existing conditions, weight, age, sex (women have more susceptibility to cervical injuries) or presence of osteoarthritis or other degenerative conditions.

Whiplash injuries are caused by the unique and unusual head and spinal movement produced by rear end, side, and frontal impacts.  The symptoms associated with sprain and strain injuries to the supporting structures of the spine may come on hours or even days after the accident. Delayed symptoms associated with spinal injuries are the rule rather than the exception.  Despite this medical truth, insurance companies hire doctors who will testify that the victim of an injury accident may not have been injured, or may have been only slightly injured if they did not complain of pain immediately after the accident.

Insurance companies will argue that there is a scientific correlation between the amount of visible damage sustained to a vehicle’s components, which are  mostly metal and plastic,  and the seriousness of injury sustained to the flesh and connective tissue of a human occupant.

The simple defense argument presented in thousands of courtrooms across the country each day is that injury victim could not possibly have been injured because there was no or very little property damage to the victim’s vehicle.

Insurance companies spend millions of dollars on their commercials talking about fakes, frauds and cheaters who are trying to exploit and defraud  an insurance company out of billions of dollars. They always take the position that injury claims are exaggerated.  Insurance companies make money selling insurance and investing that money in the stock market and other investments. They advertise about fake and fraudulent claims in an attempt to  give the impression that they are actually losing money. In  reality insurance companies have us convinced us that we should not make a claims even against our own policies because our rates will go up, or our policies will be cancelled. Jurors think that if they award money damages to auto accident victims that this may indirectly affect their own insurance rates.

To analyze the effect of a low property damage auto accident one cannot compare apples to oranges.  Trying to make a statistical correlation between damage to  inanimate objects like an automobile and a human body is comparing apples to oranges. Metal and human tissue share little  similarities. Some people herniate a disc when bending over to tie their shoes. And some people walk away from accidents where their cars are totaled.  Therefore, there is no correlation between property damage and human  injury.

In order validate the proposition that little vehicle property damage equates to little injury, the analysis must also  include the proposition that major vehicle  damage must equate to major bodily injury.  Insurance companies will deny such a direct correlation in high property damage cases.  Body movement in a low impact accident can be incredibly complex.  The injury potential of any accident is a matter of medical opinion.  The opinions of treating physicians and defense experts concerning the injury potential of any accident will be divergent.  Defense experts are called upon to provide favorable answers on critical injury potential issues – and are paid to do so. Insurance company experts won’t get repeat business unless they give favorable opinions to their insurance company clients.  Accident Reconstructionists and Biomechanical Engineers can make a lot of money rendering these opinions.  A cottage industry of low property damage auto accident experts has evolved in this country which is supported financially by the insurance companies.  There certainly is money to be made,  however the perceived legitimacy of these experts rests upon the application of junk science.

A multi-disciplinary education involving medicine, physics and biomechanics should be required to qualify a  low property damage expert.  Seldom does the expert have credentials in all three areas. A person who has not treated the victim of the personal injury car accident should be required to be an accident reconstructionist,   medical doctor, engineer,  and mechanical engineer  to render injury potential opinions on low property damage accidents.

Cars absorb energy of a crash by crushing.  Energy is not absorbed by the car if it does not crush. The less crush the  more energy is transferred by the crash to the occupants.

Harmful hyper-extension followed by immediate hyper-flexion  of the head and neck results  from a low property damage rear end accident.  This causing a shearing force to the supporting structures of the spine.  But, insurance experts take the position that a change  of velocity of the impacted vehicle under 5 mph  means that someone that who was legitimately injured and sought medical treatment is always a fake or a fraud.

So, potential jurors should not automatically accept the defense arguments on a low property damage impact auto accident.  They should look to the injured party’s medical condition before the accident.  Was the victim predisposed to injury from a motor vehicle accident  because of arthritis or some other medical condition that would make them more susceptible to injury from a low impact accident?   Are the injuries that are reflected in the post-accident medical records supported by standard orthopedic and neurologic testing?  What was the  range of motion deficit identified by the treating physician and to what extent does it  to verify the musculoskletal injury? Do the x-rays show loss of the normal curvature of the spine caused by muscle spasm?    Does the doctor relate it the injuries to the  accident even considering the low property damage and why?  Was the injured party symptom free prior to the accident? If so, is there any other explanation for the development of the symptoms other than the subject accident? Does the MRI show disc bulges or herniation?  Do the bulges or herniations cause nerve root impingement or irritation consistent with the patient’s symptoms? Did the symptoms develop within a few days of the accident? In determining what injury was caused by the accident, jurors must compare the patient’s condition before the accident to how the patient’s condition after the accident.

Since your job as jurors is to be fair and impartial, you must consider both sides of the story on low property damage motor vehicle accident cases in rendering your verdict.

The picture above is from an accident in which we represented a client in a low property damage accident.  The repairs totaled less than $500.00 to replace the bumper.  The case was tried to a Jury in the Short Trial Program. After considering the facts, including our client’s long history of similar, and chronic, back pain the Jury awarded $3,000.00 to compensate him for the medical bills incurred as a result of the accident and $9,000.00 in pain and suffering as a result of the accident.

Medical Expenses in Personal Injury Cases: Reasonableness and Necessity

The purpose of damages in a civil case is to compensate a plaintiff for actual losses caused by the defendant wrongdoer. Therefore, the law provides that a wrongdoer in a personal injury case is responsible for the payment of the reasonable and necessary medical expenses incurred by the injured party as a result of the wrongdoer’s negligent or intentional acts or failures to act.

Generally speaking, the foundational requirements for the admissibility of medical bills into evidence in a personal injury case are misunderstood by many attorneys. First, the medical bills must be authenticated.  The authentication of medical bills can be accomplished by: (1) stipulation; (2) through the testimony of a custodian of records; (3) by an affidavit from the provider’s custodian of records; or (4) by the lack of objection during the disclosure provisions of the applicable rules of civil procedure such as NRCP 16.1.

To recover for his medical expenses a plaintiff in a personal injury case, such as a car accident or slip and fall injury, must present competent medical testimony that his treatment received in the form of ambulance, hospital, radiology, doctors appointments, physical therapy, chiropractic treatment,  medications, nursing services, pain management, surgery, anesthesia  and diagnostic tests were necessary as a result of the injuries caused by the defendant’s negligent conduct; and, that the cost or each item of medical expense was reasonable in amount.  These foundational requirements are separate and apart from the causation evidentiary requirements which I have covered in a prior blog.

Medical necessity means that the expense was incurred as a result of the injury caused by the defendant. Testimony by an expert witness is required to prove that a medical service was necessary.  Additionally, to meet the necessity requirement, the plaintiff may need to  present evidence to show that the medical service was standard versus experimental, appropriate and non-fraudulent, so that the bill can be admitted into evidence and the jury or judge can consider the medical bill in determining the defendant’s obligation to pay for this item medical expense.

The terms reasonable and necessary are also utilized in auto insurance policies and health insurance policies to invoke the insurance company’s  responsibility to pay for any medical expense and limit payments only to those medical bills that are both reasonable and necessary.  Many times these terms are not defined in the policy, or are briefly or unclearly defined.

Medical necessity means that the treatment was made necessary as a result of injuries from the accident, as opposed to treatment related to another medical condition. (The medical necessity requirement comes into issue when the injuries claimed are aggravations of pre-existing conditions such as arthritis, or when a plaintiff has been involved in multiple injury accidents).  In some instances the defense will take the position that, in order for medical treatment to be necessary, it must have some benefit in improving the plaintiff’s condition.

However, in some jurisdictions, when a plaintiff gives detailed description of the treatment procedures and clearly relates them to injuries from the subject accident, the medical bills can be properly admitted into evidence upon lay testimony, rather than upon the testimony of a medical expert.

Some states that have case law that holds that a defendant can receive the benefit of write-offs or adjustments deducted from a provider’s charges pursuant to insurance contracts.  Other states have adopted the collateral source rule.  The theory behind the collateral source rule is that a wrongdoer should not receive the benefit of payments made by insurance independently procured by the injured party and for which the injured party has paid  premiums. There are some states that have adopted the collateral source rule, that still give the defendant the benefit write-offs.  The argument for this position is that: (1) The plaintiff receives a windfall if he can receive compensation for write-offs; (2) No collateral source paid the written-off amounts; (3) Write-off amounts are illusory medical expenses and the plaintiff does not actually have to pay them. This position does not take into consideration that the injured plaintiff has to pay for his insurance coverage directly or indirectly (as a benefit of his employment) in order to obtain these write-offs, which is a part of the rationale for the collateral source rule.

A plaintiff also has to provide competent evidence that the cost of each medical expense is reasonable.  This means that the medical charge is customary in the medical community and is not inflated. A medical witness who testifies on the issue of reasonableness is not always required to  be a doctor, however some form of medical testimony must be presented (Medical billing witness or a nurse who is familiar with customary charges).  A doctor can testify as to medical necessity and to the reasonable and customary nature of the medical charges.  A defendant is only responsible for reasonable medical expenses, and is not necessarily responsible for the full amount charged by the health care provider for services rendered. Sometimes it is necessary, in cases where the plaintiff does not have a retained medical expert, to call as witnesses every practitioner who rendered the plaintiff medical care.  In cases where there is a doctor manages the patient’s care  and refers the injured patient for follow-up care with other providers, the referring doctor can testify as to causation of the plaintiff’s injuries as well as the reasonableness and necessity of the medical treatment provided by other practitioners, under circumstances where he is familiar with the charges for the ancillary services provided to the patient. As you can see, this saves many thousands of dollars in expert witness fees.

In order to recover for future medical expenses there must be medical testimony that states to a reasonable degree of medical certainty what future medical expenses will result from the original injury and the reasonable cost of those medical services. In the event that those medical services are projected over a lengthy period, then the cost of the future medical expenses must be reduced to present value.

The foundational requirements for admitting medical bills into evidence are not uniform. Some jurisdictions are more liberal than others and provide for the use of affidavits instead of live expert testimony.  The case law on reasonable and necessary medical expenses is not consistent, especially when it comes to collateral source issues.  There are very few cases that give a detailed explanation and discussion of the foundational requirements for the admission of medical bills into evidence.


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