Settlement Offer

I posted earlier about waiting for extension granted to insurance company to Answer filed. I just got information from my attorney on what the insurance company offered--$5500 for my daughter and $14500 for myself.

Here's the information on the accident:
In July 2004 I was rear ended while stopped at red light in Delaware. The driver of the car that hit me was given a ticket for inattentive driving. My daughter and I both suffered neck injuries & damages to my car were $6000. Injuries required months of PT; injections, etc. & still have neck problems, shoulder weakness, headaches, numbness in left hand to this day. PIP was exhausted at $15000 & had another $5000 in medical bills.

My MRI showed degenerative disc disease at C5-6 and C6-7 and disc protrusion, C5-6 and C6-7. So the diagnosis was cervical strain, post MVA; degenerative disc disease, previously asymptomatic activated by MVA; left rotator cuff tendonitis. He also stated that I sustained a permanent partial impairment of 5% of the cervical spine.

I was in physical therapy for 7 months; continued to work (luckily I have a job that allows me to work from home 4 days a week so I can take frequent breaks and stretch out my work day). As a really active person, this has been a really frustrating experience physically and emotionally for the last 2 1/2 years and to get this low offer was really disappointing.

My attorney thinks we should take the $5500 for my daughter since we had only asked $5000 for her injury and discuss a counter-proposal for me.

Do I have a right to be extremely disappointed with this offer? or am I completely out of touch with the reality of what settlements for injuries such as these are worth?

"Do I have a right to be extremely disappointed with this offer?"

Not a legal question, and I'm not sure why you'd be disappointed or not on a stranger's say-so.

" ... or am I completely out of touch with the reality of what settlements for injuries such as these are worth?"

Have no idea if you're out of touch. Presumably you've discussed your expectations with the attorney and pinned him-her down as to whether it's realistic or not.

You're free to tell your attorney that you don't want to settle. Question is whether he-she will press the case if you are not.

The DE statute of limitations for injury lawsuits is 2 years so I'm hoping your lawsuit was already filed before the two years was up.

Injury lawsuits can easily take 2-4 years.

I'm a little surprised at the low offer given 20,000 in meds and the conditions you describe.

But your option is to simply decline the offer and go to trial.

What you asked for regarding your daughter and what they've offered is not binding and settlement negotiations cannot be used in court.

At this point, I'd go to trial on both. Juries are sympathetic to children. Your lawyer wants you to settle your daughter's claim so he can see a payday. If you decline to settle both he won't have to work any harder to try both instead of just one.

In fact, you can certainly show your displeasure by kicking up the demand on your daughter's claim.

Let's face it. If you can afford to wait it out as long as it takes you have leverage. If you are desperate for money you have no leverage and you'll probably cave.

Be aggressive with your lawyer as well.

A permanent partial disability will give you grief for the rest of you life. A well documented permanent partial disability should be worth 6 figures. Your advantage is being able to put an x-ray in front of a jury with a visible disc protrusion.

The rest of your conditions are unimpressive and wouldn't be worth much because a jury can't see anything wrong and everybody who is now alive has degenerative disc disease from cradle to grave. It's what happens as we age. However, they can see a disc protrusion and easily imagine the pain it causes.

This is all just my opinion but if it was me I'd demand 150,000 for me and 25,000 for my daughter and then roll the dice with a jury if the response didn't come close enough.

Thanks for your quick reply and information, Adjuster Jack. We did file before the 2 years was up.

I can wait it out as long as I need to; I don't need the money.

My husband said the same thing about being more aggressive with the lawyer. The thought of going to court makes me nervous but I do think it is important to get compensated for the pain and discomfort that my daughter and I are dealing with and will deal with for the rest of our lives.

I definitely have the MRI and Xrays that show the disc protrusion. Thanks for advice.

You enumerate several medical issues, but the valuation of your claim would require focus on causation as well as pathology.

Your doctors, or qualified medical peer specialists need to establish with a reasonable degree of medical certainty what medical conditions were caused by the accident. This would include examination of the extent and location of the cervical osteophytes and the nature of the disc protusion.

While you would be entitled to aggravation of previously assymptomatic conditions, the value of your case would be higher if accident caused injuries could be demonstrated.

Why not visit your lawyer and jointly review your medical records in order to gain insight as to the strengths and/or weaknesses of your case?

A couple of comments on the above post.

"Your lawyer wants you to settle your daughter's claim so he can see a payday. If you decline to settle both he won't have to work any harder to try both instead of just one."

As for the first sentence, that depends. The lawyer should have an idea what the case is worth before a jury. If the pre-trial offer is very close, of course the lawyer would prefer to settle as it is the best thing for the client and the lawyer. However, if the offer is well below what the case is worth, the lawyer will usually not encourage the client to settle for financial reasons. The beautiful thing about the contingency fee is that it aligns the lawyer's and client's interests. Yes, some mills encourage early, low settlements in order to maintain a cash flow, however the majority of solo practitioners do not.

As for the second sentence, it would be almost twice the work.

"A well documented permanent partial disability should be worth 6 figures."

There is now way to know that. Too many variables we do not know. Also, I practice in a very generous jurisdiction and it would be very rare for a 5% disability to receive a six figure verdict. Also, as I'm sure you know, the disability rating is not given the weight it used to. I've sent clients to very reputable MDs for second opinions and had disability ratings very by as much as 15%.

The last thing is the diagnosis of a "disc protrusion." You are assuming it is a protruding nucleus. Based on the Epidural Steroidal Injections administered, that might be a logical assumptiuon. However, it's common for bulging discs to be treated with ESIs. However, based on the 5% disability rating, I would assume the discs are bulging. Bulging (rather than herniated) discs are often described as protruding. And I have had several clients' treaters prescribe ESI for bulging discs.

If the poster does indeed have 2 herniated discs, then I agree with your valuation (all things being equal) and your advice. If the discs are bulging, then I'd say the offer is already approaching the settlement range. Around here I'd place it at $15k at the low range and maybe $40k at the high range depending upon any nerve involvement or lack thereof. As none was mentioned in the posters diagnosis, I'm assuming there is none and the value would be closer to the $15k figure. Maybe $20k on a good day.

I would expect the carrier to reach that beforte trial.

Once again, that's my jurisdiction.

Thanks to all of you for insight and feedback.

Because there have been questions about the injury, here is the summary impression of the radiologist from my first MRI:

Mild but broad posterior disc protrusion at C5-6 and C6-7 with bony hypertrophic change producing mild but potentially moderate bilateral foraminal stenosis. There is no spinal cord impingement, although this might explain C6 or C7 symptoms on either side.

I know that everyone as they age has deterioration in their discs. However, I do know that before this accident I was active & healthy with no neck, back or shoulder problems.

I plan to talk this week to my attorney about a counter proposal or trial chances but it is always helpful to get some other points of view. Thanks.

Based on that reading, it sounds like my initial impression was correct. It sounds as if you have two bulging discs, not herniated discs. No nerve root involvement or spinal cord impingment. Assuming the radiologist's reading is accurate, which they often are not.

I believe that the offer on the table is most likely approaching a reasonable settlement range for your injuries. Your lawyer would be better able to gauge that.

It may be that your outsanding medical bills will need to be negotiated down significantly.