What is Considered a Permanent Injury in Virginia?
What is Considered a Permanent Injury in Virginia?
In any personal injury case, your lawyer will want to determine how much you should receive in damages. There are economic damages, like medical bills, property damage, and lost wages from time you could not work. These are fairly simple to calculate because you will probably have paystubs, bills and invoices for exactly what you spent or how much income was lost based on how long you could not work.
Beyond economic damages, many people also have non-economic damages, like pain and suffering, or permanent injuries. Although you may have continued economic damages associated with a permanent injury, you will also have a separate claim for its impact on your life, or your non-economic damages. In many cases, permanent injuries lead to chronic pain and/or the loss of ability to return to some of your normal activities.
How is Permanence of Injury Defined?
In a legal sense, permanence of an injury refers to your state of health and fitness when you have suffered an injury, received treatment, and reached something called “Maximum Medical Improvement,” or “MMI” for short. You are considered to have achieved MMI when your medical team believes you have recovered as much as you ever will and you will not get any better than you are at MMI.
Just because your doctors determine you are at MMI, that does not necessarily mean that the insurance company will be satisfied and willing to pay the damages you and your lawyer have agreed is fair and have demanded. An experienced Virginia permanent injury lawyer for your permanent injury claim is essential because the insurance adjuster may believe that you are as healthy as you ever were. Your lawyer will gather and use evidence including medical records and testimony from your doctors or other health experts to convince the insurance adjuster that this is not the case. If the insurance company remains unconvinced, you may have to pursue the case in court by filing a lawsuit.
When discussing your permanent injury, it is helpful to think about how the injury has changed your life and how you do things. Try to be as specific as possible. For many people it ishelpful to write down your reflections:
- Make a list of any activities you are no longer able to do.
- If you are not able to return to work, to work as many hours as you did before, or to do the exact same job as you had before, write that down as well.
- If there are some activities you can still do, but they take longer or cause you pain, describe the issue.
Always use as much detail as possible in describing changes. For example, you might say something like, “It takes me ten minutes to get the laundry basket to the laundry room due to my back pain, and then I can barely move for the rest of the day. Most of the time, I end up having to wait until a friend or relative can help me, and sometimes that means I do not have clean clothes. Or I have to make ten trips carrying a few pieces of clothing each time instead of the whole basket.”
How Will You Know When You Have Reached MMI?
The best person to know whether you have reached MMI is your doctor(s). Often the answer your doctor may be will be along the lines of: “After X sessions of physical therapy,” or “After you have this surgery, then two months of rehabilitation”. When you reach the end of the procedures or expected recovery time the doctor estimated, be sure to check back with your doctor to ask if you have reached MMI. If you have not, check to seeif there is anything else that can be done about any lingering symptoms, pain, or disability.
What Qualifies as a Permanent Injury?
While the insurance company may very well argue this point, in general there are some commonly accepted situations where an injury is usually or always found to be permanent:
Head and Brain Injuries, Including Traumatic Brain Injury (TBI) and Concussions
Unfortunately, head and brain injuries can result in serious, permanent difficulties, because the brain controls your entire body. Depending on what kind of brain injury you had, you may suffer a wide variety of symptoms, including:
- Chronic headaches.
- Vision or hearing loss, or tinnitus.
- Neurological issues, including difficulty speaking (aphasia), seizures, memory loss, personality changes, or trouble with cognition or making decisions.
- Difficulty walking or weakness on one side of the body.
What if these symptoms remain after treatment? Check with your medical team to ensure there are no further treatment options. Depending on what kind of challenges you have, they may prescribe occupational or speech therapy, medication, physical therapy, and other interventions to improve your condition. If have done all the recommended therapies and your symptoms persist after more than a year, you probably have a permanent injury.
Scarring from burns, or any other injury from burns is considered permanent. Scars do not disappear on their own, although in some cases a plastic surgeon may be able to improve their appearance. Often you will not be able to get your scars evaluated by a plastic surgeon until several months have passed. If you have had plastic surgery and still have significant and visible scarring, this is a significant permanent injury. Remember that scarring can also be internal, and if you have burn scars on your lungs from breathing overheated air in a fire, this type of lung damage is also considered permanent.
Back, Neck, and Spinal Cord Damage
Damage to the spinal cord often results in paralysis, but you can have a permanent injury even if you do not need to use a wheelchair. Any loss of function can be considered as a permanent injury. Some people may also lose function due to chronic pain in their back and neck that prevents them from doing typical activities.
When your injuries lead to a loss of vision, hearing, or sense of taste, these injuries can also become permanent. If you have had any available treatment to recover your sensory capabilities but they have not improved or returned after a year, this is considered a permanent injury.
When you have lost a limb, even a finger or toe, it is considered a permanent injury. Although prosthetics are available, you still deserve to be compensated for the permanent loss of a limb. You are also entitled to damages for the continued economic loss of paying for prosthetics (which regularly need to be replaced throughout your life).
Soft Tissue Injuries
You and your attorney may need to fight your insurance company on this one, but soft tissue injuries like whiplash can be permanent. Soft tissue injuries, like traumatic brain injuries, can occur without any contact. In other words, you do not need to be hit in the neck to suffer an injury to the head. Instead, in many cases, the driver of the car slams on the brakes to avoid or mitigate an accident. The driver and any passengers are often thrown forward violently, causing the tissues in the neck to stretch and become strained. Although these tissues can repair themselves with time and rest, in some cases, the soft tissues are never the same. In fact, one study found that five years after a soft tissue injury, 57 percent of patients had no symptoms of their injury, while 43 percent continued to suffer pain and other symptoms.
Do You Need to Seek a Disability Rating from Your Doctor?
Seeking a disability rating is only necessary if your permanent injury is part of a workers’ compensation claim. Most auto accident permanent injury cases do not involve workers’ compensation (unless you were driving for work at the time of the accident). You can still seek a disability rating, but this may not be advantageous to your case. It is best to speak with your attorney and ask what kind of paperwork you might need from your doctors. In many cases, your attorney will prefer to take testimony from your medical team, asking them how and why your injuries are permanent, and what long-term effects they will have on your life and activities.
You and your attorney will talk about specific strategies for your situation, but in general, most personal injury claims are based on proving the following:
- The defendant (the person or entity you are making a claim against) had a duty of care. With car accidents, this usually means that another driver had a duty to behave safely behind the wheel and to avoid reckless actions that could put others on the road in danger. In less common cases, the argument might be that a car part manufacturer or other third-party had a duty to make safe components that would not cause an accident.
- The defendant failed to meet this duty of care. In other words, they drove in an unsafe manner or created a situation that led to your accident. This is the part where your attorney will probably present evidence showing how and why the crash occurred.
- You were injured as the result of this accident. At this point, your lawyer will likely go over your medical records and may talk with your doctor or other medical experts.
- You suffered damages as the result of these injuries. For this part, your lawyer will establish that your injuries were definitely caused by the accident, then they will discuss your recovery, and finally they will ask the medical experts to explain the permanent damage you have sustained. They will also go over all your damages, including both economic and non-economic ones.
What Permanent Injury Settlement Amount Should You Ask for?
There is no one right answer to the amount to demand and the settlement you accept, and you should discuss your individual needs with your attorney. The attorney will first consider all your damages, both economic and non-economic. Here are some of the damages you will need to think about:
- First, you will want to recover all economic damages you have had so far, then you will want to estimate what future costs you might have, such as continuing medical care, physical therapy, replacement prosthetics, hearing aids, mobility aids, etc.
- Determine how much money you have lost in missed days at work. Again, if you are permanently unable to work, or unable to work as much as you did before, you should receive compensation for future lost income as well.
- You should also ask for compensation for your pain and suffering, including mental and emotional suffering as well as physical.
- You should receive additional compensation for any permanent injury you have. You may also have a related claim for loss of enjoyment or reduced quality of life if your permanent injury has seriously impacted your life and ability to do the things you love.
Auto Insurance Permanent Injury Protection
Whether or not the other driver’s insurance will cover your damages varies depending on their insurance coverage. As of January of 2022, Virginia only requires $30,000 per person in bodily injury liability insurance for drivers. Most permanent injuries are going to result in a higher amount of damages than that. $30,000 is just a minimum requirement required by the State. If the person who hit you has a larger amount of coverage, you can receive up to the policy limit, whatever that amount is.
In Virginia, the maximum policy amount is $1 million per accident, but few people buy that much coverage. Truck drivers or their employers usually carry policies around $750,000 to $1 million in liability coverage, so if you were injured in an accident with a semi-truck, there is a better chance that more of your damages will be covered.
What if your damages do exceed the negligent driver’s insurance coverage? We will look for other options to recover the rest of your damages. One possibility is to sue the other driver directly. If they were at fault, you can take them to court and ask that they be held personally responsible for whatever amount their insurance does not cover. But this is not always productive – if the other driver does not have much money, you may not be able to collect on a judgment in your favor. Since trials take a lot of time and money and are very stressful for the plaintiff, we generally do not advise suing someone who will not be able to pay.
Another alternative would be to seek coverage from your own uninsured/underinsured motorist coverage. Some policies may pay up to their own limit after the at-fault driver’s insurance has been exhausted.
In a few cases, we may also consider a lawsuit against a third party whose actions somehow contributed to the crash. For example, if your car had a manufacturing defect that made it prone to bursting into flames after any minor collision, and this led to you suffering severe burns, you might have a claim against the car maker.
If you have questions about auto accident injury cases in Roanoke, Virginia or the surrounding area, or want to learn more about permanent injury examples and settlements, please contact an attorney at Lugar Law right away for a free consultation.