Whiplash injuries are short, rapid accelerations of the neck that result in injury to the cervical (neck) tissues and will result in pain and discomfort. When our body is accelerated, and because our head has significant weight compared to our neck, this creates the momentum to come forward and “whip” the head forward or to the side, thereby injuring the neck. The quick motion of accelerating and deceleration and subsequent stopping causes micro-tears inside the muscular tissue and tendons. This can result in swelling, inflammation, muscle tightness, tenderness, decreased range of motion, and headaches. There are a wide variety of causes of whiplash injuries they can include: car accidents, contact sports, workers comp accidents, slip and falls, or other physical trauma.
In a car accident, depending on where you are hit, there is rapid acceleration and deceleration that is caused by the impact of the two cars or the car and some obstacle. Since most people thankfully wear their seatbelts, there has been an increased number of whiplash injuries reported after a car accident. Seatbelts will impede the body from accelerating around the car, which is a good thing since this was the primary cause of injury for people during car accidents. However, since seatbelt technology means that your body is strapped down to the seat, your head is free to roam. Having your head be free will mean that it can accelerate at a high rate of speed (almost equal to the speed of the car). However, since the ligaments and musculature of the neck are quite strong, there is a rapid deceleration that will happen in tandem with this acceleration. This is what causes whiplash injuries and the strain and sprains of the soft tissues. The muscles, tendons, ligaments, and other tissue will be stretched, stressed and sometimes torn during this motion, causing the injury.
Other actions that can cause whiplash injuries include physical assault. If a person experiences a physical trauma such as a tackle or punch, the same mechanism as a car accident will cause the head to experience whiplash. Although the force of a tackle or physical assault is less than a car accident, it can still generate enough force to cause an injury. The sports that are most common with whiplash injuries are those sports called collision sports. This can include, football, rugby, hockey, lacrosse, and wrestling. Along with the initial force of a tackle or punch, there is the rebound effect that a person will have when his or her head hits the ground.
In addition to physical assault, fall can cause whiplash injuries as well. Slipping and falling on ice or a wet surface, common workplace injuries can cause a jolting or sudden change in motion of the neck. In older adults, whiplash injuries can be further compounded due to compromised musculature or joints.
If you have been experienced a whiplash injury, the first thing that you should do is visit a healthcare professional. You can visit your primary physician, or a specialist, either way, you need to get to a doctor or as soon as you can following your injury. This is extremely important because most don’t realize the extent of their injuries following whiplash. On numerous occasions, the symptoms of a whiplash injury don’t present themselves until hours, days or even weeks after the initial impact. However, the sooner you can get professional care following your injury, the better your recovery will be, and the sooner you will be able to get back to life as normal.
After you have been hurt and visit the doctor, your health care provider will do an examination to determine what type of injuries you may have sustained and whether or not you are dealing with your injury. Your whiplash injury doctor will take down your medical history, including asking you a number of questions about your symptoms and the event that caused the injury, and then take your vitals.
Most doctors will do an exam that will test your reflexes, strength, and range of motion in your head, neck, and arms. If you are suffering from neck pain, your doctor may take diagnostic tests to rule out other issues or to see what may be making your neck pain worse. These imaging tests include X-rays, CT scans or MRIs to look for other injuries. Together with all of this information, your whiplash injury doctor will be able to diagnose whether or not you are suffering from a severe injury.
Often after an accident or other physical trauma, our adrenaline and endorphins can decrease the immediate pain and discomfort of an injury. Generally, after about 4-12 hours, those effects will wear off, and we will start to feel the pain associated with the injury. There are a variety of treatment options that are available to patients who experience whiplash injuries and need relief. They can include
As stated before, inflammation caused by whiplash injuries can result in a stiff and sore neck. Some medications that would be most effective would be brand names like Tylenol® (generic: acetaminophen), Motrin® (generic: ibuprofen), and Aleve® (generic: naproxen). All of these medications are over the counter (OTC) and generally can be taken 2-3 per day. However, some higher doses of these medications may need to be taken. This will mean that you have to see a healthcare provider (Medical Doctor, Nurse Practitioner or Physician Assistant) write a prescription. In addition to anti-inflammatory medication, muscle relaxers can be an effective medication to take to calm down muscle spasms. All muscle relaxers must be prescribed by a medical professional. In addition to oral medication, lidocaine patches can be beneficial to patients who have whiplash injuries. Lidocaine patches work by the transmission of medicine that is applied to a patch through the skin; this is known as transdermal administration of medication. For stronger doses of lidocaine patches, you will have to get a prescription from a healthcare provider.
Physical therapy is a specialty healthcare profession that involves treating the soft tissues, osseous (bony) and neurological structures, ligaments/tendons, and postural/ergonomic deficits. If you want your care to be covered by your insurance, you will need a prescription for physical therapy assessment and follow-up. However, many physical therapy clinics will also offer private pay options so that you do not have to go through insurance. Physical therapy is done in an outpatient clinic where you will see a therapist for 6-8 weeks. After an initial assessment, therapy can include modalities, postural re-training, ergonomic adjustment and modifications, stretching, and manual therapy for soft tissue and joint issues that a patient is experiencing.
Chiropractic physicians are licensed healthcare professionals that are trained to use the body’s own natural mechanisms to treat the diseases of the spine including trauma sustained to the neck and back. Chiropractic therapy usually involves spinal manipulation techniques (adjustments) to correct spinal alignment and alleviate pain to the neck following a whiplash injury instead of using medications or surgical intervention. When it comes to injuries sustained during workplace accidents, some states may require additional requirements for healthcare professionals in order to treat injured workers. In New York State, for example, chiropractors and other medical providers have to be authorized by the NYS Workers’ Compensation Board (NYS WCB) to treat work-related injuries.
An additional adjunct to physical therapy is massage therapy. Generally, massage therapy is performed by a certified massage therapist. This moderate friction rubbing and soothing can help to reduce pain and reduce the swelling in the neck.
Acupuncture is a type of alternative medicine, based on traditional Oriental medicine, where thin needles are inserted in specific points in person to facilitate the flow of energy in relieving pain. Research shows that acupuncture can be effective for the treatment of whiplash injuries for some patients. Acupuncturists are healthcare professionals that are licensed by the NYS Education Department and have to be authorized by the NYS WCB in order to treat injuries sustained in work-related accidents.
Sometimes the pain from a whiplash injury can be intense and prolonged that it requires a more direct medical intervention. An epidural injection is a more direct anti-inflammatory method rather than taking a pill or with oral medicine. You will have to go to a doctor or healthcare provider’s office. Epidural steroid injections, or “epidurals” are usually performed by an anesthesiologist (pain management specialist) but can also be administered by a trained physiatrist, neurologist or a spine surgeon. The doctor will apply a cold spray to de-sensitize the skin for an injection. Next, the clinical will inject an anti-inflammatory medication, such as a corticosteroid, that will help to alleviate the inflammation or swelling around the nerve that is injured. For most injuries, it will only take one injection to lessen the pain. In addition to an epidural, the clinical can inject an anti-inflammatory medication into musculature that is sore or injured. This also takes usually takes one injection.
While treatment can be effective for whiplash injuries, and most symptoms can resolve themselves, there can be some long term effects of whiplash injuries. These problems can show up many years later.
The mechanism of injuries that are involved with whiplash can also produce concussion or neurological symptoms as well. As stated before, after a car accident, a significant amount of force is transferred to the head and neck. This injury can also cause your brain to experience a cue and contra-cue injury inside your skull. Essentially, this means that your brain “rattles” inside your head, thus, producing a concussion or brain injury. It is vital that you notify your healthcare professionals about any symptoms of confusion including dizziness, slow processing time, decreased memory, balance deficits, fogginess, and nausea/vomiting. Some therapies can help to deal with the deficits from concussions. This can include balance training, cognitive training, and speech pathology. Mostly, your brain needs to rest and heal after a concussion.
Anytime you file a personal injury claim against someone who has injured you (provided that person has some type of insurance), both you and the other person’s insurance company may prefer to settle the case outside of court. Nobody wants to go to court and risk the unknown of how much (or how little) a jury might award.
But, in order to settle your personal injury claim, you and the other party must agree on a settlement amount. You, the plaintiff, must decide the minimum you will accept and the insurance company must decide the most it will pay. If these amounts coincide, your whiplash injury claim can settle.
To get a better idea of what kind of settlement you can expect from a whiplash injury after a car accident in New York, have a look at the range of jury verdicts and settlements obtained in these notable New York whiplash injury cases:
Settling a personal injury claim can be extremely challenging and must take into consideration many different factors. Both you and the insurance company must estimate how much compensation a jury might award if the case were to go to trial—based factors such as:
Each side must also take into account the cost of going to trial in terms of court fees, legal fees, time, and other expenses. Only an experienced personal injury attorney will be able to assess and account for these variables accurately.
Another important consideration is how strongly you can prove your damages. In other words, is it clear how severe your whiplash injury is and is it also clear that your whiplash injury was caused by the accident? The clearer the damages and the clearer the connection between your whiplash injury and the accident, the easier it is to prove the case to a jury.
Another factor that must be considered when evaluating the settlement value of your case is whether you were partly at fault for the accident. New York follows the rule of contributory negligence with regards to a personal injury plaintiff’s own partial fault in an accident. NY CPLR § 1411 (2012)
The contributory negligence rule basically holds that the amount of compensation that the jury awards you will be reduced by your own percentage of fault. This means that, the jury must decide how much, if any, the defendant was to blame for your injuries and how much, if any, you were to blame for your own injuries. Then, the judge will reduce the amount of compensation that the jury has awarded you by an amount equal to your own percentage of fault.
New York follows a version of contributory negligence called “pure comparative fault”. This means, it does not matter whether you are 1 percent at fault for your own injuries or 99 percent at fault, the defendant still has to pay, but in an amount reduced by your own level of fault. So, even if you are 99 percent at fault for your own injuries—which the jury determines are $100,000—you may still collect that 1 percent or $1,000 from the defendant.
Because New York is a contributory negligence state, your attorney must consider the extent to which your own negligence may cause the jury’s verdict to be reduced and factor that into your settlement demand.
The most important factors your attorney has to consider when determining a settlement value is the amount and nature of the damages you have suffered as a result of your whiplash injury.
There are many kinds of damages that an injured party can claim in a typical personal injury lawsuit. These can all be separated into two main categories:
Economic damages (also called special damages) are losses related to your injury that can be expressed in precise dollar values, such as:
Non-economic damages often referred to as “general” damages, are more difficult to quantify than economic damages, because there is no particular formula that you can be used to calculate them. Their values are determined almost exclusively by the opinion of the jury.
Non-economic damages are things like:
The jury cannot rely on any specific formula or calculation to put a value on how much compensation they should award you for things like the pain and suffering you have endured as a result of an accident. Only the collective opinions, personal experiences, instincts, and conclusions of the jury members will assist them in placing a value on these types of damages.
Traditionally, personal injury lawsuits are centered around the question of who was at fault for an accident. Some states have modified this system in some circumstances so that liability becomes more about insurance and less about fault.
What these systems usually do is categorize personal injuries from car accidents by levels of severity. If the injuries are below a certain level of severity, then each person’s own insurance pays for their medical bills and lost wages and, usually, there is no payment at all for pain and suffering.
However, if the injuries breach a certain threshold level of severity, then the traditional fault system kicks in and a lawsuit can be filed for additional medical bills and pain and suffering that exceed the threshold.
In New York, every motorist is required to purchase $50,000 in no-fault insurance coverage, called Personal Injury Protection or PIP. This coverage will pay for your medical bills and lost wages (and those of your passengers or someone driving your car with permission) up to $50,000 when caused by an accident. 11 CRR-NY 65-1.1
As such, you can never collect the first $50,000 of medical bills and lost wages from the at-fault party to an accident in a lawsuit. In addition, you may only sue an at-fault party to an accident if you sustained what New York calls a “serious injury.”
However, if you sustain a “serious injury”—such as a ruptured disk in your back or a broken leg—you can sue the person at fault; but the first $50,000 in medical bills and lost wages awarded by the jury will be deducted from the total verdict amount because those expenses were paid or will be paid by your own insurance.
So, if your medical bills and lost wages are less than $50,000 but you have a serious injury, you can only be awarded damages for pain and suffering.
New York Insurance Law Section 5102 (d) defines a “serious injury” as any of the following:
New York’s definition of “serious injury” does not include, cuts, scrapes, bruises, or temporary pain and discomfort. Furthermore, muscle strains and soft tissue injuries will generally only breach the serious injury threshold if they meet at least one of the requirements above, particularly: (7) limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) an inability to perform your daily activities for not less than ninety days immediately following the occurrence of the injury or impairment. (See Oberly v. Bangs Ambulance for example)
Number (9) above, also referred to as the 90/180 test, was previously regarded as an easy way for whiplash victims to breach the serious injury threshold. All the plaintiff needed to show was that he or she was off work for 90 days or more (or unable to perform other routine daily activities for 90 days or more) in order for damages to be recovered. However, it is by no means that simple (nor has it ever been).
Judges are requiring increasingly more evidence from plaintiffs who are attempting to meet the 90/180 test. In fact, in every one of the following New York injury cases, the court ruled that the plaintiff failed to satisfy the requirements necessary to breach the serious injury threshold under the 90/180 test and, in most cases, this was due to a lack of objective evidence:
In New York, the levels of injury required in order to go beyond the no-fault system and into the traditional fault system depend on the number of your medical bills as well as the severity of the injuries. But, as mentioned above, judges are demanding increasingly more evidence in support of the extent of whiplash injury claims (such as a range of motion test).
Unlike fractures and broken bones, soft tissue injuries like whiplash are difficult to accurately assess, even with more rigorous medical testing. Furthermore, presenting evidence to a judge or jury regarding pain and suffering is inherently difficult. This is because you cannot take an x-ray of pain or hook someone up to a machine that measures pain.
Thus, in many cases, the only way to show the extent of your injuries and how much pain you have suffered is for you to describe them to the judge or jury. You can talk about your inability to perform certain activities, the medications that you have to take, or anything else that can help the judge or jury visualize the extent of your injuries.
These descriptions, along with your doctor’s assessment of your injuries, may or may not give the judge or jury an idea of what you are going through. Accordingly, many whiplash lawsuits are dismissed simply because the judge or jury does not believe that the plaintiffs’ injuries breached the serious injury threshold.
To receive a fair settlement after sustaining a whiplash injury in a car accident, you will need to provide the insurance company with some type of concrete evidence of your injury. The simplest way to do this is to seek immediate and continuous medical treatment for your whiplash injury until you have recovered.
Each time you visit a doctor, a chiropractor, or a therapist, the record of that treatment may include important comments and observations regarding your whiplash injury, such as evidence of muscle spasms or a decreased range of movement.
When these objective comments and observations are taken alongside your own honest reports of injury and pain, they can grow to be the most important evidence in your whiplash claim.
For that reason, it is essential that you get checked out by a doctor immediately after being injured in an accident. Then, as often as necessary until you reach maximum medical improvement (MMI).
MMI refers to the point in time when the doctor indicates that your injury has healed as much as it ever will. You might still be in some discomfort or pain when you have reached MMI, but further medical treatment won’t be able to improve your condition.
MMI is also the point where there should be no more significant changes in your long-term prognosis and you should have all the information you need to negotiate a fair settlement with the liable insurance company.
Whiplash injuries can develop through high impact collisions such as motor vehicle accidents, physical assault, workplace accidents, or slip and falls. Each of these methods of injury can come with different problems and concerns. There are a wide variety of treatment methods that can help a patient who is experiencing whiplash; however, there may be some long term effects that linger for most people who experience whiplash. It is essential that you immediately address whiplash injuries after a fall or accident by visiting a doctor that is experienced in diagnosing and treatment of whiplash injuries. No two whiplash cases are alike, and the settlement you can expect from a whiplash injury after a car accident will depend on a variety of variables that are difficult to estimate in advance. If the liable insurance company is offering you a low amount of compensation to settle your case, you should employ the services of a qualified and experienced personal injury attorney to protect your rights and ensure that you receive the amount of compensation you are entitled to receive.
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