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What are you negotiating?

Updated: Aug 8

One of the most common mistakes made in negotiating claims involving personal injuries is not properly defining what is being negotiated. In most cases, adjusters speak in general terms about the types of treatment used, whether they think there are "issues" with the injuries or treatment and then what they believe the case is worth. It is never really clear, though, whether a point is being made about the injury, medical costs, wages or something else. Even liability does not have a standalone value and tends to be mixed in as an arguing point. Throw considerations for venue, DUI or other non-tort factors into the mix and the whole basis for valuing and negotiating a case becomes a blur.

The steep annual increases in average personal injury settlements (see below) demonstrates that this approach to negotiating is not working. In fact, it seems to be achieving worse and worse results.

The plaintiff's bar and medical providers have been very astute in understanding how to manipulate adjuster evaluations and negotiations by using medical treatment to sensationalize key parts of the case and create a sense of risk. They avoid clarification of the injury but heavily rely on the amount of medical treatment to imply it is serious. They skillfully challenge any discussion of things like medical necessity by attacking adjuster credentials and noting "I can board all the meds." When the adjuster takes the lead in summarizing the case, the adjuster, not the plaintiff, now owns the burden. All the plaintiff attorney has to do is sit back and reject the summary and the critiques that go with it. This works well for the plaintiff attorney.

So what do you do? How do you change this situation?

The first step in getting control of the resolution process is to clearly define what the claims are. When the case is a mixture of medical bills, treatment and vague references to injury, there is no way to get a handle on it. A "case" has a value that is the sum of the value of its components adjusted for liability. Pain and suffering, for example is not just part of a case, it has a distinct value. That value is not set by the amount of treatment the claimant received, but rather the ability to prove claims about the level of impairment the claimant suffered, the amount of pain they experienced, and the degree to which the accident caused the injury. Medical bills are not proof.

Clarifying these claims is not a matter of a yes or no response. These claims come in degrees. It is not a question, for instance of whether you can prove someone was not impaired in their ability to do things. It is a question of how much impairment the plaintiff is claiming and whether the evidence supports this claim. Plaintiff attorneys focus on the medical billing to imply that the injury must be serious. The adjuster's job is to take this one step further. Ask the plaintiff attorney what degree of impairment the plaintiff is claiming. Don't allow medical bills, which are so easily inflated, to control the impression of injury severity. Get the plaintiff to state what their claims clearly.

You are likely thinking "There are too many potential claims. This will make the negotiation too confusing!" Actually, with respect to the injury itself, there are only 4 types of claims made. They deal with causation for the injury, the severity of impairment, the severity of pain and the emotional distress that follows. Unless you know them and specifically hold these claims to the evidence, you will not be able to effectively use the burden of proof. Burden of proof is your leverage. You will also not be able to clearly state what the evidence DOES prove.

Similarly, there are only three claims about each medical provider's billing - the treatment is related, it is justified, and the charges are reasonable. Ask the plaintiff attorney to confirm that these are the claims.

When you have clarification, you can then test the validity of these claims against the medical records. Do medical records, for example, confirm an inability to lift things? To walk or sit for extended periods? If they don't, how will the medical providers now support these claims? The point is that offers should be based on evidence-supported positions that are clear about the claims, not innuendo-supported positions that obscure the claims. This also distinguishes the injury from the treatment. This is critical. For instance, Casentric's analysis shows that there is generally no difference in the severity of injury between cases in which spinal injections occur and those that do not. The objective severity of injury is the same. Put differently, most claimants who receive spinal injections do not have a serious enough objective injury to warrant getting them. Once you can demonstrate this, you can better control not just the pain and suffering, but the medical as well.

At Casentric, we refer to this as "position analysis". Position analysis tells you how to leverage information to reach a fair and reasonable settlement. This requires methodology and knowledge that most adjusters do not have. It is, however, required to achieve a settlement that is driven by the proven severity of the injury.

Casentric organizes our analysis to address these claims. We have studied what types of claims are made and have developed methodology for systematically reviewing records to determine whether they are proven. This is not a gimmick or trick, but a change to the way you assess and resolve claims. We back it with negotiation training that provides a process and techniques to make it successful. Our client's results prove that with reduction in settlement values of 25% or more on average.

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