You have neck pain from a whiplash injury. Your doctor tells you to have massage therapy. The insurance company agrees to pay for the massage therapy treatments and you follow your doctor’s advice.
Eight weeks of therapy sessions later, the insurance adjuster tells you that funding for massage therapy will be cut off. So, you stop having the therapy.
Three years later, after negotiations fail to result in a settlement offer you consider fair, there is a trial. The person who should be on trial is the person who caused the crash. Instead, you are the one on trial. One of the main attacks against you has to do with your decision to stop going to massage therapy.
The insurance company’s lawyer will argue your pain must have ended after the eight weeks of therapy because if it hadn’t, you would have continued with the therapy. The specialist doctor hired by the insurance company will say that you would never have developed a chronic neck pain condition if only you had continued with the doctor-recommended massage therapy.
Alternatively, the specialist will say that some more massage therapy is a “magic” pill that will cure you if you have another course of massage therapy now.
Your lawyer’s ability to prove the truth, that you still have pain today and have had pain since the crash, will be compromised because the massage therapist’s notes recording inflamed and ropy tissues ended after the eighth week following the crash. Will it be a sufficient answer for you to tell the jury the insurance company stopped paying for the treatments?
Only in the very rarest of situations will a failure to attend medically recommended treatments be excused because of a lack of insurance company funding. The rare situations are when the injured person cannot find any other way to get the treatment, i.e. there is no ability to finance the treatments by way of a bank, credit card or family loan and you’ve begged every massage therapist in town to treat you on the basis that the therapist will be paid on resolution of your claim.
Even if you had absolutely no way to finance the treatments yourself, and simply could not continue with the medically recommended treatment, you will not be protected from the “magic pill” defence or the lack of evidence.
A competent personal injury lawyer will make sure to advise crash victims that they must get clear advice of what therapies are required and then they must follow that advice without any regard whatsoever for how long the insurance company will pay for it. The insurance company is not your doctor, and has no role in determining what medical care you need.
That advice, if followed, will do two things— it will put you in the best situation possible if you end up in a trial and, most importantly, following medical advice will maximize your recovery.
Published May 30, 2010 in Kelowna Capital News