Legal Question in Personal Injury in North Carolina

I was involved in a rear end collision. Speed of impact was 55 mph. totaled 2009 payed off car and left me with severe whiplash/headaches. also severe hip back pain. I had a spinal fusion 8 yrs ago (l5-S1) but havd fully recovered. I have been running 3-4 days a week, doing kick boxing at the gym and living a very normal 38yr old life. Question is ..Is the pain and suffering going to be less because of my prior fusion, also I read you only get paid on the contracted price with the insurance company not the totaled bill amount. Do you think I would be entitled to 3x the "discounted" rate for pain and suffering?

Asked on 10/03/12, 3:09 am

2 Answers from Attorneys

John Kirby Law Offices of John M. Kirby
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These are several good questions. As for the effect of the prior fusion, that should not have much effect on your settlement assuming (a) you are not claiming lower back injuries from the recent accident and (b) that prior fusion did not leave you with any significant limitations. If you are claiming lower back injuries from this recent auto accident, then if you can show that you returned to normal activities following the fusion, the prior fusion would not negatively impact your settlement. In fact, sometimes a prior medical problem can enhance a person's claim, because it makes them more susceptible to subsequent injuries; the insurance company should pay for any aggravation or exacerbation of the pre-existing conditions. As for the contracted price, that depends on when your accident occurred, as North Carolina law recently changed on this point. As for the "3x" issue, that is just a rule of thumb that was used more in the past than now, and there is no authority indicating whether that rule would apply to the discounted rate. If one were to try to conduct such an analysis, then it would probably be the discounted rate, if that is the only amount of medical bills that the claimant can recover (depending -- again -- on when the accident occurred). The better approach, however, is probably to do a more thorough analysis of the pain based on the medical records and on any projected future (permanent) pain and suffering. A lawyer with experience valuing these claims, and litigating them, can provide an evaluation of the value of the entire claim, including pain and suffering. Please feel free to contact me if you have other questions about this.

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10/03/12, 5:03 am
Jay Mills Burns Day and Presnell, P.A.
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I agree with Mr. Kirby, and strongly encourage you to speak with a personal injury attorney in your area regarding your claim. Attorneys don't charge for the initial consultations on claims like this, and after you talk with a couple, you can make a determination as to whether this is something you want to resolve yourself, or whether it is worthwhile to have an attorney represent you.

I'm sorry to hear about the accident, but it sounds as if you were fortunate that you were not more severely injured. I would be happy to talk with you about your claim if you would like. Either way, good luck going forward. -Jay Mills

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10/03/12, 8:17 am

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