Elements of Evidence in the Injury Claim


If suit has not been filed, the injury claim documentation will be presented directly to all insurance companies who represent the at-fault driver(s). In hit-and-run accidents and cases involving uninsured drivers, the victim presents the claim directly to their own insurance carrier. Please understand that, in these cases, your insurance carrier will behave as though the uninsured or hit-and-run driver was actually insured by your carrier. Even though you collect under your own policy, the adjuster will oppose and question your claims and will treat you just as though you had no insurance with that company. In fact, if your case cannot be settled and goes to trial, the uninsured motorist coverage under your policy will pay for the lawyer who defends the uninsured driver and who opposes your claims in court.

If you handle your claims without counsel, the insurance adjuster will control the process of injury claim presentation. Adjusters typically demand that the claimant/victim sign a medical authorization. Attorneys typically refuse these authorizations because you are not legally obligated to provide access to your private, unrelated medical information. Nevertheless, if you handle your injury claim without counsel, adjusters typically insist on these authorizations and refuse to consider injury claims or negotiate settlement without direct access to your medical history.

The unrepresented claimant should present his or her claim in the same fashion that an experienced personal injury attorney would. You are working toward a settlement that is a single lump-sum payment, including all past and future medical expenses, all past and future lost wages, all other expenses and financial losses relating to the injury, and payment for past and future pain and suffering. To collect for all damages, the settlement demand brochure must be a carefully organized presentation of all evidence that would be presented at trial to support the highest verdict and award.

The victim has the burden to collect and offer proof of all damages. Insurance adjusters will not help you find valuable evidence, and they will not look for reasons to pay you more money. Thus, you must do the legwork to carefully unearth and properly present all medical evidence and anecdotal evidence to show the severity of your injury, the full cost of medical care, the amount of all lost income and earning ability, and the true impact of injuries on your quality of life.

While some cases call for unique evidentiary presentations, the following elements of proof are typically included in a thorough and properly prepared personal injury demand brochure:

  • Police report and summary of collision evidence — While many parts of the police report are inadmissible in a personal injury trial, every settlement demand presentation should include the investigating officer’s police report and other official reports, such as state patrol motor carrier enforcement reports in truck and commercial vehicle collision cases. In the case presentation, it is wise to highlight and resolve any substantive errors in police records.
  • Collision photos — Whenever possible, secure photos of all vehicles involved in a motor vehicle accident. Also, photos of the accident scene are helpful in serious injury cases. If you do not personally have these photos, law enforcement may be willing to share their internal notes and photographs. If they are not willing to voluntarily produce these, a subpoena will mandate disclosure.
  • Personal and medical background information for victim — To secure the best payment results, it is important to help the insurance adjusters understand the victim’s lifestyle and health status before the accident. If there were prior medical problems, it is often wise to voluntarily disclose this information. The victim should present preexisting conditions as preexisting “frailties.” Since the responsible parties owe for any worsening of a prior medical condition, you should open-handedly share this medical background. Also, share positive points about the family picture, whether the victim is a parent of young children, details about your educational and occupational history, a list of hobbies and activities you enjoy, and a summary of your lifestyle before the subject collision.
  • Past medical records — These records are not provided in every case. However, if you had obvious preexisting conditions that were worsened by the accident, insurance adjusters will ask for past medical records. Providing these with the initial demand enhances credibility, streamlines the claim process, and avoids any accusations that your evidence was intentionally incomplete. In back and spinal injury cases, always provide past medical history in cases where the client/victim had no prior problems with back pain or related difficulties. Back pain is a common medical condition. If you had perfect spinal health with no prior symptoms, such as neck pain, back pain, headaches, or similar difficulties, providing the clean medical history compels the adjuster to understand that all post-accident pain was truly caused by the subject collision.
  • Accident-related medical bills — The insurance carrier will insist that you produce all accident-related medical invoices. They will only consider line-item invoicing with ICD-9 diagnostic codes for each treatment modality. Thus, they will not accept the medical bills that are mailed directly to the patient’s home. If you are represented, your attorney will handle these details for you. If you are unrepresented, the adjuster will insist that you secure thorough and proper medical invoicing. Your physicians should be glad to provide itemized invoices with diagnostic coding upon request.
  • List of all insurance payments made on medical charges — Recent legislative changes have vastly decreased the amount accident victims can collect for medical bills. For accidents on and after October 1, 2011, trial evidence of past medical expenses is limited to the actual amounts paid by health insurance carriers. Unfortunately, this hides the true amount of medical bills from your jury, which, in turn, results in a significant reduction in the amount insurance companies will pay for medical expenses. These recent changes now require victims to provide a list of all payments and credits on all medical accounts.
  • Medical records with research and injury description — You or your attorney should collect and review every page from your medical files with all medical providers. It is essential to produce every medical record relating to your treatment. Also, care should be taken to read and interpret these vitally important records. Adjusters will not comb the records for evidence indicating permanency of injury or higher case value. Rather, they cherry-pick the records only looking for notations that suggest that you are doing well or that the injuries are less severe. Medical records should be presented in a carefully organized fashion. A medical summary highlighting all medical notes, nurses’ notes, radiology and imaging reports, and other elements that confirm the true nature and extent of all injuries should be included. The medical records are the heart of the injury case. Careful analysis, proper interpretation, and thorough presentation will result in much higher settlement offers and trial verdicts.
  • Injury summary with supportive medical research — The medical records presentation should be joined with a medical summary that lists and describes all injuries, which includes photographs and supportive references to the patient’s medical records and describes problems and treatment associated with each and every injury endured in the accident. Where multiple injuries exist, medical research regarding the overlay of all conditions will best show the cumulative effect of the injuries on the victim’s health and mobility.
  • Physicians’ disability orders — If a doctor provides notes ordering the patient to avoid work or to limit work duties, these notes should be included with the settlement demand. These will confirm that missed work occurred for medical reasons and, therefore, all lost wages are legally owed.
  • Physicians’ narratives — Patients should be very cautious when discussing their injury claims and legal matters with their physicians. Your doctors are there to restore your health. They are typically not interested in becoming involved in injury and insurance claims or in litigation or trials. Your sole focus with physicians should be recovering your health. However, in some cases, medical evidence is required to confirm that injuries are indeed related to the accident. Insurance companies challenge the causal relationship between injuries and the accident in almost every case. Medical narratives are commonly needed to show that specific injuries were indeed caused by a collision. Also, whenever an injury produces chronic or permanent symptoms, a qualified medical expert’s testimony is the only way to legally prove that the injury is lasting or permanent. Without this evidence, the insurance carrier will not pay for any future medical expenses or for the victim’s future pain and suffering. Attorneys are best suited to secure effective medical narratives. Lawyers know exactly which questions to ask and they also help the doctor understand that a clear medical opinion letter will promote settlement. If the physician understands that his or her narrative opinion may motivate a private settlement obviating any need for lawsuits or trial, he or she will typically take the time to provide honest evidence to support the full value of your case.
  • Injury photographs and video — Photographs of all visible injuries motivate higher settlement offers and trial verdicts. In cases involving lacerations, sutures, surgery, fractures, or other obvious visible injury, photographs should be taken throughout the healing process. This irrefutable evidence overcomes later adjuster arguments that injuries are less significant than claimed. In cases of catastrophic injury, attorneys commonly use “day-in-the-life” videos to show how injury-related incapacitation has impacted the victim’s quality of life.
  • Life care plan in catastrophic injury cases — If medical care will continue well after the three-year lawsuit filing deadline, the settlement demand or trial evidence presentation must include a life-care plan. This plan is prepared by a team of experts, including a vocational rehabilitation specialist, an economist who can reduce future care cost to present monetary value, and the victim’s team of attending physicians. The life-care plan is the proper way to quantify and claim compensation for all anticipated future medical needs.
  • Employer certification of lost income — The victim is entitled to payment for all lost income and wages for work missed because of injury and medical restriction. While the doctor must confirm that you are medically unable to work, evidence must also show that you indeed missed work following the accident. The employer should only document pay rate and time actually missed from work. If you were paid for sick time or vacation and therefore missed no pay, you are still entitled to full payment of lost wages. Thus, the employer’s certification should not indicate whether the victim received sick pay or other wage benefits. In cases of self-employed individuals, you must carefully document all lost jobs and income opportunities. Insurance carriers will also typically insist on three years of past income tax filings to confirm the history of earnings in the self-employed enterprise.
  • Economic evidence supporting future lost earnings — If your injuries compelled you to change or accept less pay, medical evidence must confirm that injury-related disability prevented you from continuing in your past work capacity. Employment evidence must also show that the employer discontinued your previous role and document the new/current earnings and the anticipated future earning schedule. In a trial setting, lawyers introduce the expert testimony of a vocational rehabilitation specialist. This expert will confirm that the injuries prevented continued employment in the pre-accident capacity.
  • Economist and vocational-rehabilitation expert report — Detailed expert testimony is required in cases involving permanent income loss, and in any claim for lost work life expectancy. In some cases, the victim may be able to return to work full-time now but later be compelled to retire early because of medical restrictions. Vocational rehabilitation specialists are able to prove and quantify these claims. They look to industrial tables that define the level of physical exertion required in your work, compare that to the medical evidence of permanent restriction, and calculate the anticipated early retirement age for the patient.
  • Statement of theory of legal liability — Insurance carriers are more attentive and generous in response to thoroughly prepared legal demands. When you ask for compensation for personal injury, you should include a presentation of all laws that support your claims for compensation. Here, you list all driving errors, all traffic law violations, and all evidence laws that support your injury claims. If the responsible driver was intoxicated or guilty of intentional conduct, you should also present all laws supporting a claim for punitive damages.
  • Summary description of impact of injuries on victim quality of life — When you present your case, adjusters hope you will just drop off the medical records and allow them to evaluate the claim. They will offer pennies on the dollar in these cases. When you ask for tax-free payment for physical pain and emotional suffering, you must be prepared to share the story of how the accident impacted your life. Offer statements and testimony about missed family vacations, missed opportunities, and the effect of symptoms on your sleep, day-to-day life, and relationships. You should not exaggerate your suffering. However, you should not minimize it either. If the accident happened near the holidays, address how your holidays were impacted.
  • Victim’s injury journal — Victims benefit from maintaining a diary to record their experiences and difficulties during the course of treatment and recovery. The journal can be shared in whole or in part and will help to ensure that all difficulties and problems are remembered and shared. If you have a lawyer, begin the journal with the first entry “Dear Attorney.” This converts the journal to a privileged attorney-client communication, which allows your lawyers to use only those parts of the journal that they feel will best support your injury claims.
  • Monetary demand — Your injury claim is worth the amount that a jury would award you at trial. Injury cases are valued for settlement purposes by researching trial verdicts in similar cases. Insurance companies seek to negotiate in every case. Thus, it is wise to begin with a settlement demand that is at the high range of negotiations. This leaves room to negotiate and still reach your settlement objectives. If you have no idea of the value of your case, you should avoid placing any dollar value on your claim. Instead, allow the adjuster to evaluate the case and then seek legal advice after you receive a settlement offer. There are extensive dangers negotiating an injury case without counsel. However, some people prefer to handle their claims without a lawyer. If this is your preference, please be very careful stating and fixing the price on your injury case. If you are too low, you may put a ceiling on what your attorney is able to later accomplish. If you are too high, the adjuster will question the credibility of your entire case.

The elements of evidence listed above are common parts of a proper injury case presentation. However, unique circumstances may require additional considerations. For example, in cases involving drunk driving, the at-fault driver’s criminal record and driving history should be included as part of the initial demand brochure. The primary goal when preparing the settlement demand brochure is to tell the victim’s complete subjective story and medical story through convincing and emotionally compelling evidence.

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