Proving an Accident Related Injury

Excuses the Insurance Industry Uses To Deny Disk Herniation Claims

Someone is in a bad car accident and is subsequently diagnosed with a painful disc herniation for the first time. Sounds like an easy case to prove, right? Wrong. Proving to a suspicious insurance company that a disc herniation is related to the accident-related trauma is easier said than done.

Some of the lamest excuses Attorney Burnside has heard in his career from insurance companies and their lawyers and hired “independent” doctors include, but are not limited to:

• Top Excuse: “Although the claimant never sought medical care for their disc herniation prior to the accident, the claimant is old and the disc herniation is related to age.”
• Runner-up: “Although the claimant never sought medical care for their disc herniation prior to the accident, the claimant:
  • If they worked/work a labor-intensive job: “It’s caused from their job”
  • If they work a sedentary job or don’t work: “It’s from sitting a lot.”
• Third Place: “There’s probably something in the claimant’s distant past that caused the disc herniation.”
• “Disc herniation can be caused from sneezing too hard.”
• “Disc herniation is not painful.”
• Honorable Mention: “Disc herniation can heal themselves” 

Proving a Disk Herniation Case in Court

Attorney Burnside has tried several of these types of cases to juries. But these cases are not easy and remain some of the toughest cases to prove because of several of the factors the opposing sides use to

Proving a permanent disk herniation case rests in proving the following underlying issues:

• Liability: we must first prove that the other party is fully at-fault
• Mechanism of injury: we must prove how the disc herniation occurred. Was it a whiplash-type motion of the neck, or was there a significant “jolt” of the mid or low back that caused the force necessary for these types of injuries?
• Absence of prior issues versus: if a client has had no prior vertebral pain or documented injury from to the car accident, or another event that caused their injury, it becomes a matter of common knowledge that if it wasn’t there before, and was after a trauma, that is it related to the trauma. This is usually an easier argument than that of establishing an aggravation of a preexisting injury.
• Establishing that there was an “aggravation”: when the opposing side argues that our clients who have had preexisting structural issues in the spine (also referred to as “eggshell plaintiffs”), it can be a dagger in a client’s case if not treated properly. Many people think that if they had a pre-existing spinal issue that juries will automatically believe that the new herniation was there all along. That is not true. On the other hand, the law recognizes that people are more susceptible to receiving a disc herniation if they previously had damage that would predispose them to further injury. Sometimes proving a disc injury when there are pre-existing problems is easier to establish in court as the argument can be made that the new traumatic event “was the stick that broke the camel’s back.”

Compare the following that sometimes is argued in court: When you sprain your ankle, everyone knows you are more susceptible to another injury to that same ankle. The damage to the ligaments is a similar type of damage to that that surround and make up the spine. Once damaged, they tend to never go back to the way they were.