Whiplash Is Real: Proving Soft-Tissue Injuries to a Skeptical Adjuster

Published August 7, 2012 · Injury Law Basics

Someone ran into the back of your car at a stop on Wilmington Pike. The bumper is scuffed, you drove home, and the next morning you could not turn your head. Two weeks later the other driver's adjuster tells you that "minor impact" crashes "do not cause injury" and offers a few hundred dollars to close the file. That is a soft-tissue claim, and it is one of the most mishandled claims in Ohio.

What "soft tissue" means and why insurers discount it

Soft-tissue injury is the medical term for damage to muscles, tendons, ligaments, and the discs and joints they support, as opposed to broken bones. "Whiplash" is the common name for a cervical strain or sprain, the neck injury that happens when the head snaps backward and forward in a rear-end collision. The same forces injure the upper back, the low back, and the shoulders.

These injuries are real, they are painful, and they can last for months or become permanent. The problem for an injured person is that they are invisible on the tests people expect. An X-ray shows bone. A strained ligament or an inflamed facet joint does not appear on it, and often does not appear on an MRI either.

Insurance companies know this, and they have built claim-handling systems around it. Many carriers run soft-tissue claims through software that scores the claim based on diagnosis codes, the type of treatment, and the amount of vehicle damage. A claim with no fracture, no surgery, and low repair costs gets a low score and a low offer, no matter how much pain the person is in. The adjuster's job is to settle at or below that number. Your job is to prove the injury so thoroughly that the formula does not apply.

Over more than 1,000 cases, we have seen the same handful of things separate the soft-tissue claims that are paid fairly from the ones that are not.

Get examined right away

The single most damaging fact in a soft-tissue case is a gap between the crash and the first medical visit. If you are seen in the emergency room, at an urgent care, or by your family doctor within a day or two, the record ties your symptoms to the collision. If the first visit is three weeks later, the adjuster will argue that something else caused the pain. We explained the medical reasons in Why You Should See a Doctor After a Crash Even If You "Feel Fine"; the legal reasons are just as strong.

Objective findings beat adjectives

"Patient complains of neck pain" is a subjective statement. "Palpable paraspinal muscle spasm at C5-C7; cervical rotation limited to 40 degrees bilaterally" is an objective finding a doctor observed and measured. Objective findings are what persuade adjusters, defense doctors, and juries that an injury exists.

Ask your doctor or physical therapist to document:

• muscle spasm and tenderness on examination;
• range-of-motion measurements, in degrees, at each visit;
• positive orthopedic or neurological tests;
• any findings on imaging, including straightening of the normal neck curve, which often accompanies spasm;
• a specific diagnosis (cervical strain, lumbar sprain, thoracic strain) rather than a vague "pain" entry.

You do not need to coach anyone. Most providers will record these findings if you describe your symptoms specifically and attend every appointment.

Treat consistently and follow the plan

Soft-tissue injuries usually improve with conservative care: physical therapy, home exercises, medication, sometimes chiropractic treatment or injections. The records of that care are the backbone of the claim. Consistent attendance shows the injury was serious enough to require treatment; discharge notes show when you reached maximum improvement and whether anything is permanent.

Gaps in treatment are used against you. If you stop going to therapy for a month, the adjuster will say you were healed and that whatever happened later is unrelated. If you cannot continue treatment because of cost, transportation, or work, tell your doctor and your lawyer so the reason is documented rather than guessed at.

Tell the story of how it affects your life

Pain and suffering damages are measured by how the injury changed your life, and that is something only you can describe. Keep a simple daily log: pain levels, sleep, missed work, activities you could not do, help you needed from family. A note that reads "Could not pick up my daughter; could not sit through church; slept three hours" is far more persuasive months later than a general memory of "it hurt a lot."

Lost wages, missed overtime, and the cost of hiring someone to mow the lawn or do what you could not are all part of the claim. Keep pay stubs and receipts.

Do not give the adjuster the tools to deny you

Two mistakes hand the insurance company its defense. The first is giving a recorded statement to the other driver's insurer before you have talked to a lawyer. The questions are designed to lock you into "I'm fine" and "the impact was light." We explained why in Should You Give a Recorded Statement to the Other Driver's Insurer?

The second is accepting the quick, low offer. Soft-tissue symptoms often worsen over the first several weeks. An offer made in week two cannot account for the therapy you need in month three, and once you sign a release, the claim is over for good.

Liability is usually clear; damages are the fight

In most whiplash cases the other driver's fault is not seriously disputed. Ohio's assured-clear-distance rule makes a following driver who rear-ends a stopped or slowing car responsible in nearly every case, as we discussed in Rear-End Collisions and Ohio's Assured-Clear-Distance Rule. That is why the insurer concentrates its effort on the value of the injury rather than who caused it. Knowing that in advance lets you put your effort where it matters: on documentation.

What this means for you

• Soft-tissue injuries are compensable in Ohio like any other injury. The challenge is proof, not law.
• See a doctor immediately, keep every appointment, and make sure objective findings are recorded.
• Keep a daily record of how the injury affects your work and life.
• Do not give a recorded statement or accept an early offer without advice.
• Low vehicle damage does not mean low injury, and an adjuster's formula is not a medical opinion.

For more on how these collisions are handled, see our page on rear-end collisions in Dayton and our overview of car accident claims.