Whiplash Injury Compensation

Demystifying Whiplash Injury Compensation: What You Need to Know

Tarun Sridharan Legal Editor & Attorney Contributor Read Time: 9 minutes

Demystifying Whiplash Injury Compensation: What You Need to Know

If you’ve suffered a whiplash injury in a car accident, then chances are that you’re considering whether to pursue whiplash injury compensation through a whiplash claim, lawsuit, or insurance claim.

The legal process surrounding a whiplash incident can be confusing and overwhelming for a first-time claimant, however. Consulting with an experienced personal injury attorney can help you navigate the complexities of securing fair settlements and maximizing your recovery. For the sake of clarification, and to encourage you to explore your legal options, let’s go through some of the basics.

What is a whiplash injury?

Whiplash is a neck injury that occurs when an impact force causes the victim to sustain rapid back-and-forth movements affecting the neck. The motion is said to be reminiscent of the “cracking of a whip.”

Whiplash can occur in many car accident scenarios. The force of impact — whether from a rear-end collision, front-end collision, or sideswipe — can put serious strain on the neck and its supporting structures.

Fortunately, whiplash is recoverable in most cases. The severity of a whiplash injury can vary quite a bit, however — in some cases, recovery from a whiplash injury may only require a few weeks of rest, while in other cases, recovery may require surgery and years of rehabilitation. Severe whiplash injuries can significantly impact an individual’s ability to return to work, and perform job duties, and lead to financial challenges due to missed work hours and decreased income. In addition to lost wages, victims often face significant medical expenses, including emergency room treatment, diagnostic tests, and ongoing physical therapy.

What are the typical symptoms of whiplash?

Symptoms of whiplash may include:

  • Default neck pain
  • Movement-related neck pain
  • Neck stiffness
  • Neck mobility issues
  • Severe headaches
  • Tenderness/pain in the shoulders, upper back, and arms
  • Tingling/numbness in the shoulders, upper back, and arms
  • Fatigue
  • Dizziness
  • And more

Symptoms can vary from case to case, and may not be obvious at first. Don’t make assumptions about your health status until you’ve actually gone to a physician and run some diagnostic tests. Physical therapy is often recommended as a treatment for whiplash injuries.

In fact, even minor whiplash injuries can develop into more serious, life-altering conditions over time — for example, a low-speed accident can lead to spinal degeneration after a whiplash injury. This spinal degeneration might not present until years later. Make sure to regularly consult with physicians over time to ensure that your condition has not worsened or developed into something new.

Is it worth suing for a whiplash injury claim?

Whether it’s worth suing for a whiplash injury will largely depend on the losses that you sustained as a result. If your whiplash injury and its consequences are minor, then it may not be worth suing. If they are major, then the potential compensation could be rather significant.

That being said, it’s always worth discussing your personal injury case with an experienced accident attorney to figure out whether your claims are strategically viable. Consultation with a plaintiffs’-side personal injury attorney is typically free, so it’s a sensible choice to call in and talk about your case to learn more.

Damages in a Whiplash Injury Dispute

Damages are meant to account for the losses that you sustained as a result of the accident and your injuries. Claimable losses include, but are not limited to:

  • Lost wages
  • Loss of earning capacity
  • Medical expenses (such as medical bills)
  • Property loss
  • Pain and suffering
  • Loss of enjoyment of life
  • Loss of companionship
  • And more

Worth noting: damages vary from case to case, and depend on the unique circumstances of the individual affected by the accident. For example, an unemployed injury victim will have zero lost wages, while an employed injury victim may have to take substantial time off from work to recover, thus leading to a large lost wages payout.

How is a whiplash settlement calculated?

Whiplash settlements are best understood as a means for the opposing parties to navigate the uncertainty and negative costs of trial litigation. As such, calculating the settlement is rather simple — a fair settlement amount is a representation of your damages total multiplied by the likelihood that you will actually receive that amount from the court should the case proceed to trial.

The insurance company plays a crucial role in negotiating settlements, often employing tactics to minimize payout amounts. Hiring an experienced attorney can help counter these tactics and fight for a fair settlement.

For example, suppose that you sustain a whiplash injury in a car accident, and the total damages you’re claiming are $100,000. After some initial back-and-forth with the defense counsel, it appears that the evidence is strongly in your favor and that the defense agrees with that characterization of the dispute. You and the defense estimate that you have a 75% chance of succeeding should the case proceed to trial. Thus, a fair settlement amount would likely hover around $75,000.

This number can shift based on a few other factors. For example, if you’re a particularly unsympathetic injury victim, then that can “lower your chances of success” should the case proceed to trial — thus reducing the negotiated settlement amount.

What if you’re partially at-fault for your whiplash injury?

Many accident disputes do not involve faultless injury victims. Depending on the state’s jurisdiction, fault, and liability change case outcomes in different ways.

In some states, a doctrine known as “pure comparative fault” applies. Under pure comparative fault, the injury victim can be up to 99 percent at-fault for the accident and injury and still sue for compensation. Notably, however, their compensation amount will be reduced by their percent fault contribution. So if an injury victim is 60 percent at-fault for their own injuries, and sustained $100,000 in damages, they could sue for $40,000.

In other states, a doctrine known as “modified comparative fault” applies. It works the same way as pure comparative fault, except that you — the injured plaintiff — are prohibited from recovering any compensation if you are 51 percent at-fault (i.e., more responsible for your own injuries than anyone else).

In a few states, a doctrine known as “contributory fault” applies. It’s quite strict and prevents the injured plaintiff from recovering compensation if they are even one percent at-fault. Fortunately, there are ways to navigate this limitation — for example, if you weren’t wearing a seatbelt, your attorney might try and argue that the lack of a seatbelt did not actually contribute to the injuries at all.

You don’t have an unlimited time to sue for your whiplash injury

Every claim — including a whiplash injury claim — has a time limit known as the statute of limitations. This statute of limitations period works as a deadline for your whiplash claims, with rather strict consequences for failure to abide by the deadline.

If you do not file the relevant injury claim before the deadline passes, then you will be unable to sue and recover damages under the law. Courts will automatically dismiss the relevant claim on the basis that the statute of limitations for that claim has passed already. You could be left without a legal path to compensation.

That’s why it’s so important to consult an attorney before it’s too late. The stakes are high in injury litigation, and messing up various procedural aspects of your case (i.e., the deadlines and other basics) can lead to negative outcomes.

In California, for example, you have two years (from the date of injury) to bring a negligence-based injury claim. If you’ve waited too long, however, do bear in mind that there may be certain exceptions to the statute of limitations that apply. Consider the “Discovery Rule,” which suspends the statute of limitations countdown until you’ve actually discovered the injury (or should have discovered the injury) — this exception exists for cases in which the injury does not present symptoms (or is difficult to identify/diagnose) until years later.

How much does it cost to litigate my claim using a car accident attorney?

Most plaintiffs’-side personal injury lawyers work on a contingency basis, so they don’t get paid until (and unless) you get paid compensation. Contingency fee arrangements don’t require any upfront or out-of-pocket fees. Instead, the attorney takes a percentage cut of the compensation they secure on your behalf — this can range anywhere from 25 percent at the low end to 40 percent or more at the high end.

Contingency fee arrangements create a favorable dynamic for injury victims. First, it allows injury victims to pursue their claims without any financial resources to start with. Second, it incentivizes attorneys to work efficiently and effectively to maximize compensation for the injured client — that’s because they get paid more when you get paid more. If you have suffered whiplash, it is crucial to seek legal assistance to determine the correct compensation.

It’s really a win-win dynamic for all involved.

If you’ve suffered a whiplash injury in a car accident, then you could be entitled to sue for damages under the law. Navigating the litigation process isn’t always straightforward or simple, however, which is why you’ll want the assistance of an experienced car accident lawyer. That’s where we come in. Severe injuries, such as chronic symptoms of whiplash, require professional help to ensure you receive the compensation you deserve.

Contact 1-800-THE-LAW2 for a free legal consultation with a skilled local attorney in our network. During this initial consultation, you’ll have the opportunity to discuss your case in detail and get professional guidance on how best to proceed. Experienced attorneys can identify your strategic options and help you understand how to navigate these options in your best interest. If you decide you’d rather not continue with the attorney after the initial consultation, you’re under no obligation — so there’s really no downside to picking up the phone and getting started.

We look forward to assisting you.

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