If you have a legal case involving a back injury claim, whether it involves a personal injury claim (such as from an automobile accident or a slip and fall) or you are injured at work, there are various factors that will impact on what your claim will be worth. In some ways, a personal injury back injury and a workers compensation back injury are very similar. In other ways, they are vastly different. Understanding these similarities and differences can help in understanding how the value of your claim is determined.
Important factors to help determine my back injury claim’s worth
Proving a back injury, and more specifically the severity of the back injury, involves consideration of the same factors whether the injury is a personal injury claim or a workers’’s compensation claim. Some of the important considerations in proving a back injury claim are as follows:
Did your symptoms begin immediately after the injury?
In most cases involving a back injury claim, someone who suffers a back injury will have an immediate onset of back and/or leg pain. However, in some cases, the initial symptoms following the injury may be very minimal, such as the sensation of a pop with no actual pain, and more serious symptoms will become apparent the next day or several days later. It is therefore very important to always describe, whether to an employer, someone investigating the accident, or the doctors treating your injury, the onset of even very minimal symptoms in the early stages of your injury. This is important so that the relationship between the earlier milder symptoms and a more serious problem that may ultimately be discovered can later be established.
Does the injury involve a strain/sprain type of injury vs. A disc or spinal cord injury?
Strain/sprain injuries – these types of injuries are typically considered to be nonsurgical injuries involving muscle, ligament or injuries that most doctors say will typically heal within a relatively short period of time. However, in a small percentage of cases these types of injuries can become chronic, leading to diagnoses such as fibromyalgia or chronic regional pain syndrome. Some physicians will classify strain/sprain injuries interchangeably, although a strain is more properly used to define an injury to muscle/ligaments, and a sprain involves tendons. If, after proper evaluation and testing, your doctors conclude that your injury involves a strain or sprain, the value of your claim will typically be much less than if a disc type of injury is involved. This is due to the fact that convincing insurance company representatives or judges and juries that an injury involving a strain or sprain is serious can be a difficult task. Often, there are very few “hard” physical examination findings or test results to substantiate ongoing pain complaints related to a strain or sprain. A good attorney, however, will know to focus on what is available to support your claim, rather than what isn’t available. Things that can help to substantiate ongoing problems from a strain or sprain are reproducible spasms, consistent and persistent difficulties range of motion, and consistency between your complaints and these other factors.
There are three types of disc injuries that most frequently are discussed in back injury cases:
Disc Bulges – while it is certainly scary to be told by your doctor that you have a disc bulge, from a legal perspective a diagnosis of a disc bulge is usually not much more significant than a diagnosis of a strain or sprain. The general consensus of physicians who we hear testify is that a disc bulge can arise from numerous factors, and can be present without any symptoms. Furthermore, in most cases, someone who has sustained a back injury does not have the benefit of prior diagnostic testing, such as an MRI, to compare what their spine looked like prior to their injury as opposed to after their injury. It is often difficult to get your physician to attribute symptoms to a disc bulge and it is likewise usually difficult to determine exactly when that bulge occurred. As such, it is often very difficult to get your doctors to be willing to correlate a disc bulge with ongoing symptoms,
Disc Herniations – a disc herniation is the most common and most serious of back injuries that lead to significant value being attributed to your personal injury or workers compensation claim. These injuries typically involve a portion of the bone that makes up the spinal disc breaking loose, and can cause temporary or permanent injury to the nerves in the spinal cord. A back injury involving a disc herniation often requires surgery. As attorneys who have handled back injury cases for decades, we have seen back injury cases involving a disc herniation that leaves an individual permanently paralyzed or with permanent pain and restrictions. We have also seen back injury cases with a disc herniation that is successfully repaired, with little to no ongoing problems. As such, assessing the value of a back injury case, even where a disc herniation is clearly present, still requires consideration of numerous other variables.
Disc Tears – as diagnostic tests have become more and more sophisticated over the years, a diagnosis that 20 to 30 years ago may have been overlooked with a back injury case is a disc tear, or more accurately an annular tear. Doctors will explain that there is a fibrosis material, called the annulus, which helps to hold in place the material through which nerves pass through the spinal column. In the past, it was difficult to detect injuries which caused tears of this annular material, as it would not show up on earlier diagnostic studies that were available. However, more recent diagnostic testing can show the presence of an annular tear, which can result in ongoing back pain even where other testing does not show injury to a nerve or a disc herniation. In many cases, where originally an injury was believed to involve only a back strain, the more sophisticated testing now available will show the presence of an annular tear that helps to explain the presence of ongoing back problems.
Common Diagnostic Tests with Back Injuries
In addition to a physical examination, if a back injury is causing radiculopathy (pain, numbness and/or weakness into the legs), or is persisting longer than would be expected for a simple sprain, there are several tests that are commonly relied upon by doctors treating your injury, as well as by attorneys and others involved in assessing your case. The most common of these are as follows:
X-Rays – these typically will show a fracture of a disc, but are not as useful in diagnosing a disc herniation, annular tear or nerve damage.
MRI Studies – these typically will detect disc herniations and bulges.
EMG/NCV Studies – these are electrical tests that help to determine whether there our any problems with the function of your nerves. These can be very valuable test results, when combined with an MRI study showing a disc herniation, to help prove temporary or permanent nerve damage has occurred.
Discography – this test is often used to determine whether an annular tear is present.
Pre-Existing Back Conditions Can Dramatically Impact on the Value of a Back Injury Claim
Previous back problems, whether minor in nature or more serious (such as a prior disc herniation that required surgery) can have a negative impact on the value of a back injury claim. Exactly how much of an impact pre-existing conditions will have on a claim is dependent upon numerous factors, such as the severity of the prior problem, how close in time to the current back injury the prior problem had been last present and/or treated, and the duration of the previous back problem. Because of this, it is always important to let your attorney know with complete accuracy whether you had any previous back injuries or problems, and the details related to those previous problems. Often, a good attorney can minimize the significance of prior back problems, especially if they were in the distant past, with no ongoing problems until the current back injury occurred. If you had prior back problems, that information will come out during your case, and failing to disclose it early on is much more damaging to the value of your case then being upfront about it.
Personal Injury Claims Versus Workers’ Compensation Claims for a Back Injury
A personal injury claim, such as from an automobile accident or a slip and fall, takes into consideration various elements of damages that are not all available in a workers’ compensation claim. Workers compensation claims for a back injury take into account lost wages based upon wages at the time of the injury and medical expenses related to the injury, and in rare instances claims for loss of use of a body part, such as where paralysis of the lower extremities would occur. Personal injury back injury claims take into account many more factors,, which are generally classified as economic and non–economic damages. These can be further broken down as follows:
In a personal injury case from a back injury, economic damages are similar to the damages that are available with a work related injury. These include:
- Lost wages and income – this can include your actual lost wages from work for a period of time following your injury, and/or potential future lost income or earning capacity because of restrictions on your ability to work due to an injury.
- Past and future medical expenses – this involves looking at medical expenses that have already been incurred because of your injury at the time of settlement or trial, as well as projections as to future medical expenses that will be necessary to treat your injury.
Non-economic damages are potentially available as part of the settlement or award with a personal injury case. However, these types of damages are not taken into consideration with a workers compensation claim.
- Pain and Suffering –there is no specific set amount or formula used to ascertain the value of pain and suffering from a back injury. Numerous factors, including the length, duration and severity of the pain and suffering, all have to be taken into consideration in determining how much more will be awarded over and above the economic damages for pain and suffering. An experienced attorney knows how to develop proper testimony and evidence to try to maximize the additional award for pain and suffering with a back injury claim in a personal injury case.
- Loss of Consortium – in cases of severe back injury where your spouse is deprived of the normal expectations of a relationship, including the loss of sexual relations, a separate award to your spouse can also be pursued.
- Punitive Damages – in rare circumstances, if gross negligence (negligence that is extreme as compared to normal negligence) can be established, additional punitive damages may be available.
Our attorneys have decades of experience handling both personal injury and work related back injury claims in Western Pennsylvania. If you have experienced an injury of this nature, you can contact us for a free consultation regarding your case and begin to understand “What Is My Back Injury Claim Worth?” at 1-800-964-2667.