“So it should heal in no time. Besides, your client has degenerative disc disease and that wasn’t caused by the accident.” I hear this sort of thing a lot from insurance adjusters in back injury claims as they try to keep their claim payments low. I don’t blame them for serving their employer’s interest. Their employer, frequently a multi-billion dollar insurance company, has only one interest, and that is to make a profit. But the unfortunate reality of profitability in the insurance world is that profits come at the expense of inadequately compensated, or often uncompensated victims of injury. But the stock ticker has no conscious, and the insurance company has no concern or care for the injured. The almighty dollar rules. And contrary to catchy advertising, the insurance mega-corps are not our good neighbors, do not hold us in good hands, and the only personal responsibility known to the mega-corp is to be responsible to its profit motive. So I don’t blame the adjuster. She’s just doing her job.
But I won’t tolerate disingenuous medical arguments. Let me explain about “soft tissue injury” and “degenerative disc disease.” These phrases are commonly tossed around by the intellectually lazy as half-hearted bases for inadequate payments to the injured. Inflamed and injured intervertebral discs are soft tissue. They are not bone. And to be sure, injury to an intervertebral disc can be and frequently is very painful and debilitating, and at the core of chronic, life-long back pain, a leading cause of missed work in the United States. Injured discs often necessitate surgery on the back, and anyone remotely familiar with surgery of the back knows that it is never a good thing and always marks the beginning of a new stage of life for the patient – a stage of life where common ordinary physical tasks are difficult or impossible. So, “No, Ms. Insurance Lady, it won’t heal in time. It is here to stay.”
But as we age, we degenerate. Every body system begins the slow process of aging. There is nothing about a 40 year old body that is better than a 30 year old body. This is a simple truth. And to some extent or another, our intervertebral discs have begun the slow process of degeneration – of aging – at some point perhaps younger than 30. For others, maybe 40. But to be sure, as we get older, our discs become more dried out (medically known as dessicated) and fragile. And yet, most of us are walking around at 40 or 50 without any debilitating back symptoms or injury even though we may have some degree of degenerative disc disease. But, that same person, when involved in what may otherwise seem to be a relatively minor rear-ender car wreck, may then suffer very severe, even profound symptoms in the lower back or neck. What was symptom-free and, for all practical purposes, harmless degenerative disc disease before the wreck, has become a debilitating life-changing injury because of a wreck.
There is a time honored and universally accepted concept in law commonly known as “take your victim as you find him.” This legal doctrine means that a wrongdoer – whether a careless and negligent person or an intentional wrongdoer – is responsible for the injury and resulting harms he causes even if the injured person was predisposed to injury before the wrongdoing. If I were to carelessly knock down a weak and frail elderly person, causing him to fall down and break a hip – even when a younger and healthier person would not have been hurt - would any reasonable person say that I am not responsible for his broken hip and the related harms and losses he suffered? Of course not. No reasonable person would say, “well, he wouldn’t have broken his hip if he weren’t old and fragile, so you’re not responsible for his broken hip even though you carelessly knocked him to the ground.” Yet that is the equivalent of what the insurance adjuster is saying when she attempts to minimize a claim by reference to degenerative disc disease, which has no significance without consideration of when symptoms first began. So, the adjuster is either intentionally disingenuous – cruelly attempting to deny a portion of a legitimate claim – or she is intellectually lazy, fundamentally unscientific, and just offering nonsensical gibberish hoping it will stick like spaghetti thrown against the wall.
But, as I’ve said, the adjuster is just doing a job, I suppose. Well, I’m not just doing a job. I’m pursuing justice. I’m advocating for reasonable solutions for my clients. I’m working within the framework of the law to right wrongs. Fortunately, the ultimate decision maker on this sort of thing is not an adjuster, but a jury of ordinary and unbiased people.