Hergott: Negotiating a fair settlement #3

Even medical science has difficulty understanding exactly what it is going on with soft tissue injuries…

Time deadlines and low ball offers were the first two of my series about ICBC negotiation tactics.

Today, I am writing about a less recognizable, insidious tactic.

A personal injury claim is not like the stone chess set I got “high balled” on in Mexico.

With the chess set, I could pick up and examine every stone piece as well as the board, looking for chips or cracks.

I didn’t have to trust anything that came out of the vendor’s mouth about what I was purchasing.

The negotiation was solely about the price of a plainly visible, examinable item. Compare that with the purchase of a used car.

At my level of mechanical expertise, about the only thing that I can independently verify is the depth of tire tread. Is it original paint or has paint been used to cover up Bondo? Might the brakes or transmission be on their last legs? Does the car have a week of life left or another 200,000 kilometres?

With seat belts and air bags, few ICBC claims involve fractures. Most involve injuries to the connective tissues and joints between the vertebrae in the spine that sustain microtears and other invisible damage, known as “soft tissue injuries.”

If you put the stone chess set on one end and a used car on the other end, a soft tissue injury would be way off the charts, beyond the used car end of that spectrum.

Even medical science has difficulty understanding exactly what it is going on with soft tissue injuries, which cannot be seen on X-rays, CT scans or MRIs.

You could hire a mechanic to go over a used car with a fine toothed comb and tell you exactly what condition it is in.

No medical specialist in the land can do the same thing with your soft tissue injury.

The science is “clear” on one thing, the uncertainty of prognosis.

For most people, pain and other symptoms arising from a soft tissue injuries recover 100 per cent. But for many, they don’t.

Some end up with a lifetime of a mild level of pain or discomfort that has a minimal impact on their lives, sort of like a toothache that never goes away.

The really unlucky ones develop chronic pain conditions that require lidocaine infusions, facet joint injections or rhizotomies, narcotic medication and other therapies to manage their unrelenting pain.

The insidious negotiation tactic I am writing about is the sophisticated ICBC adjuster, knowledgeable about the science, encouraging you to settle your claim on the basis of the optimism of your doctor and others on your treatment team without any mention of the possibility that the optimism is misplaced.

The reason why I call this negotiation tactic insidious is because injured victims don’t know this information.

You want so badly to believe your medical team that you are on the road to a full recovery.

A representative of your own insurance company is encouraging you to believe that as well. You have no idea that there is a very real possibility that you might never, ever fully recover and what that might mean for fair compensation.

Fair financial compensation for a temporary soft tissue injury that completely resolves within a short period of time is in a completely different stratosphere from what’s fair to compensate for an injury that never, ever resolves.

I’m talking a minimum of tens of thousands of dollars difference.

Unless you are reading this column, you don’t know that information either.

Optimism is an important form of recovery therapy, by the way. The brain is an incredibly powerful healing tool.

You cannot “think” your way out of the very real damage your soft tissues have sustained, but you will have more energy to follow through with stretching and strengthening therapies, be less likely to develop depression, and the list goes on and on.

My advice is to fully embrace the optimism of your medical team and believe the true science that the odds are in your favour to achieve a complete recovery.

Wait until that beautiful recovery is achieved before entering into a settlement negotiation.

Get legal advice to know what your “limitation period” deadline is (it is typically but not always two years).

If you are still dealing with symptoms as that date approaches, make sure to take the necessary steps to protect your rights because you will be in for the long haul if you want to have a hope of fair compensation, something I’ll be covering in the last column of this series next week.

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