Treatment and Compensation – A Road Map to Maximum Recovery and Fair Compensation
When you have been injured in an accident where someone else is responsible, society offers two ways of leaving the negative effects of that event in the past where they belong —- treatment and compensation.
Our Medicare statutes provide a framework within which your GP and other treators work with you to enhance your physical and emotional recovery. The civil court system provides a framework within which lawyers and liability insurers distribute compensatory dollars.
If your injuries were the result of a negligent motorist, the principle insurer is ICBC. For other tortious events third party liability insurers for homeowners and commercial entities are involved. Governments are generally self-insured but have the same obligations to their victims as other tortfeasors. All three groups follow the same basic rules.
The primary guides for maximizing recovery and ensuring fair compensation for the past and future effects of your accident injuries are your GP and your lawyer. Contrary to popular belief getting better and getting fair compensation go hand in hand. If you follow my advice and that of your doctor we can achieve the best possible results in both areas. The next part of this article will show you how to do your part in our joint efforts to achieve these goals.
Briefly there are four steps:
- involve your GP in your treatment early
- follow medical advice carefully
- get legal representation early
- follow legal advice carefully
a tort is a wrongful act where the victim is entitled to compensation for the damages that flow directly from the act
where one person sues another and insurance is involved, the first and second parties to the insurance contract are the wrongdoer and his/her insurer, the third party is the victim. The victim claims against the wrongdoer. The insurer of the wrongdoer is obligated by the insurance contract to step in and protect the wrongdoer’s financial interests
liability means a legal obligation to pay — see my article Who’s Who for more detail
tortfeasor is a fancy legal word for the person who done you wrong, ie committed the tort, see footnote
The specific way you as an individual take this advice effectively will vary depending on your unique position, but understanding the interaction between you and the various doctors and lawyers and insurance representatives you will meet along the way from accident to resolution, as well as understanding some of the jargon, will enable you to be effective in recovering from your injury and getting fair compensation. So let’s talk a bit about a typical path from accident to resolution of the insurance claim in more detail.
Your first encounter with ‘treatment’ can occur right at the accident scene.
Often emergency health care professionals attend the accident scene, and in some instances, either convey or refer accident victims to the Emergency Out Patient Department of a nearby hospital for same day assessment and treatment.
In all but the most acute cases, they treat and release the patient to the care of their family physician. Usual practice is for the patient to see their doctor within a day or so of the accident.
The role of the General Practitioner in an accident injury is to provide front line treatment and coordinate specialist referrals as necessary.
In the case of soft tissue injuries, GP’s usually begin with a careful exam and assessment in their clinic.
Often they will prescribe medication to help traumatized muscles relax, to reduce inflammation and to soften the pain effect.
The GP may consider a referral to other first phase treators such as physiotherapists and massage therapists.
Sometimes your general practitioner may consider diagnostic procedures such as X-rays, CT scans, MRI’s and blood work.
Additional consideration may be given to input on diagnosis and treatment suggestions from specialists your GP may decide to refer you to for treatment. The most common specialists involved in soft tissue injury claims are orthopedic surgeons and physiatrists.
clinic is just a profession specific term for the doctor’s office from the Greek kline meaning bed, — you’ll find one in every examining room
chiropractors also fit into this category although medical doctors generally don’t actively prescribe their involvement unless you initiate the idea.
There can often be an emotional component to an accident trauma. Psychologists and psychiatrists are sometimes used for either diagnostic and/or treatment in situations where the general practitioner feels that the patient’s needs go beyond the treatment modalities he or her can offer at a busy clinic. Some people feel stigmatized by such treatment. Remember that being referred to a psychologist or psychiatrist means addressing an emotional injury as opposed to being mentally ill.
Commonly, the General Practitioner will be asked to write reports at various points in the recovery process, putting to paper the diagnosis, treatment history and recommendations, opinion on disability, discussion of any relevant non-accident factors, and at a time when the doctor’s experience with the particular injury is sufficient to look at the future, a prognosis.
THIS IS VERY IMPORTANT. While other medical experts may be asked to comment on particular aspects of your injury, the family physician’s input provides the medical – legal foundation of your injury claim.
Here is the process.
Every time you visit your doctor at his clinic he makes notes. These assist him or her not only in your treatment but also in report writing. The technical term for these notes is “clinical records”. The doctor records not only his thoughts and actions but also what you have told him that is relevant to the injury.
Often in injury related law suits photocopies of these clinical records are required to be produced along with the reports previously discussed. The rationalization for having these clinical records produced is that they help put the reports into context and that they also provide a detailed history of your injury recovery experience.
Typically the doctor (as did the emergency health professionals at the scene and in the hospital) asks you how the injury occurred. The doctor also asks how you are feeling each time you visit and solicits your feedback on how various treatment prescriptions made to date have worked out. The doctor relies on this ongoing history to decide how to best treat you going forward. For this reason alone it is very important for you to be clear and accurate in the information you provide.
But there is another important reason to be clear and accurate when talking to your doctor.
a medical opinion on the residual effects of the injury in terms of future treatment requirements and persisting disability as it relates to self-care, home care and work
Your general practitioner knows you from other times you have visited the clinic prior to the accident so there is usually a bond of trust established. As a result the general practitioner is inclined to accept what you say about your injury experience. He or she incorporates that perception into his or her reporting. The insurance company on the other hand usually meets you for the first time as a person claiming against their insured, for the negative effects of an injury.
It is the insurance company’s representative’s job to be skeptical. They examine the clinical records, which as previously stated are the basis for those reports that form the foundation of your claim, looking for inconsistencies that can then be used to undermine your general practitioner’s opinion where it supports your claim to damages.
They will not only read the clinical records but they will compare what you have told your doctor (and any other treator you see — they all keep clinical records) against other objective sources of information.
For example they will compare your description to your doctor of the extent of damage sustained by your vehicle, to the final repair invoice. If you have told your doctor there was a huge amount of damage but the repair estimate shows a minimal amount then the doctor’s opinion is compromised to the extent that the doctor relies on the vehicle damage when assessing your injury. On the other hand if you have told your doctor that the damages were in fact minimal, the doctor will usually still accept your injury complaints and his or her reported opinion on the extent of your injuries will itself remain undamaged.
On another point, when considering your doctor’s treatment recommendations, from a legal perspective, you should keep in mind the principle of mitigation.
While neither your doctor nor the insurance company can force you to take treatment, if you refuse, or don’t genuinely cooperate with treators, you could face a reduction in the amount you are otherwise eligible to claim if the insurance company is successfully able to argue your non-compliance with treatment recommendations resulted in a ‘failure to mitigate’ your loss.
If you have an issue with a particular form of treatment being recommended by your doctor, discuss it with him or her thoroughly and see what acceptable alternatives there may be. These alternatives may not only avoid a reduction in your claim on account of mitigation arguments but also enhance your recovery. Don’t allow yourself to be left in a stalled position where a lack of discussion with
the person claiming must take all reasonable steps to minimize the amount of loss suffered.
your doctor prevents the introduction of an acceptable treatment form and leaves you vulnerable to the insurance company’s mitigation argument.
Doctors who treat you have an obligation to get you better, “do no harm” as the saying goes, however there are another group of medical experts that you may encounter in a personal injury insurance claim whose primary obligation is assessment rather than patient welfare. Their involvement is referred to in the medical-legal world by the misnomer of Independent Medical Examinations or IME’s as they are referenced in the common parlance. Independent in this context does not mean independent of who is paying them, it means independent of the obligation to get the person better.
The examination and report writing process of the Independent Medical Examiner is mandated by the requirements of your legal case not your personal health. Each Independent Medical Examiner potentially becomes an expert witness at trial. While all medical-legal witnesses have an obligation to the Court to maintain a scientific and objective standard of conduct in this role, as you well know from other scientific debates, say the early discussions on whether or not global warming exists, objective and scientific arguments can be genuinely made from very different perspectives.
Insurance companies tend to hire doctors for IME’s whose approach is skeptical of the claim being made. As your lawyer, I will ensure that only IME’s that are absolutely necessary by the legal process are conducted by the insurance company and that, in the event that the subsequent report is overly biased, I will make arrangements for our own IME to take place, providing a more realistic, balancing expert opinion.
Your case is always what your case is, but working together, you and your legal Butler will ensure that a full and fair foundation of medical-legal opinion is always on the menu come settlement time.
Call your legal butler today to discuss how to best use your medical professionals and Independent medical professionals to maximize your settlement. Additionally if ICBC wants to send you to their medical expert then I can provide you with further guidance on what to expect. Call lawyer Jamie Butler today at 604-318-3838.
