By Jamal F. Allen | Allen Law Firm, Arizona’s Big Crash Lawyers
For years I defended insurance companies before I ever represented an injured person.
That background taught me something uncomfortable. When the injured person is older, the arguments change. They don’t get louder or meaner. They get quieter, and they all run in one direction: this isn’t as bad as it looks, or the crash didn’t cause it.
There are three of these arguments. They come up in nearly every file I see. Here they are, and here is why each one is weaker than it sounds.
Argument one: “The MRI shows degeneration. That’s arthritis, not a car accident.”
Your scan comes back. The radiologist notes disc degeneration, some bulging discs, maybe narrowing in the spine. An adjuster reads that report and draws the obvious conclusion. Wear and tear. Age. Not our driver’s fault.
Now here is what that reasoning misses.
In 2015, a team of researchers led by Dr. Waleed Brinjikji published a study in the American Journal of Neuroradiology. They gathered spine imaging from more than three thousand people who had no pain at all. No back trouble, no complaints. Then they counted how often degenerative findings showed up anyway.
The answer was: almost always, and more often with age.
Among people with no symptoms whatsoever, disc degeneration appeared in 37% of 20-year-olds and in 96% of 80-year-olds. Bulging discs followed the same pattern. The authors concluded that many of these findings are simply part of normal aging, are not associated with pain, and have to be read alongside what is actually going on with the patient.
Think about what that does to the adjuster’s argument. If nearly every pain-free person your age has degeneration on a scan, then finding it on your scan doesn’t tell us much about why you hurt today. On its own, it tells you about as much as gray hair does.
Two honest caveats, because I would rather you hear them from me than from a defense expert.
Scans are not worthless. A companion study by some researchers found that several imaging findings do show up more often in adults under 50 who have back pain than in those who don’t. Imaging matters. It just cannot answer the causation question by itself.
And you don’t get paid for the arthritis. Arizona is careful here. You are not entitled to compensation for a condition you already had. What you are entitled to is compensation for the “worsening”. If a collision makes an existing condition worse, the driver who caused it answers for that, and it doesn’t matter that a younger person might have walked away. Arizona’s Court of Appeals said so in a case called Gasiorowski v. Hose, and Arizona juries hear a standard instruction on exactly this point.
But someone has to prove it. That takes your records and your doctors, describing what changed.
Which brings me to the part only you can supply. The question was never what your spine looks like. The question is what changed. You played nine holes on Tuesday and couldn’t get out of a chair on Thursday. You have lived in that body for seven decades and you know precisely what is different now.
Tell your doctors that, in those words, and make sure it goes in the chart.
Argument two: “She’s retired. There’s no wage loss.”
This one isn’t really an argument. It’s an omission, and it is usually the expensive one.
Injury claims get valued around lost income out of habit. No paycheck, no wage claim, thinner file. What that habit misses is that a retired person’s losses can be larger than a working person’s, because what the injury takes is expensive to replace.
Look at what is actually on the ledger.
The work you did yourself. Yard work, housekeeping, driving, cooking, laundry. Arizona treats the value of household services you can no longer perform as an economic loss. If you are paying someone now, that cost belongs in the claim.
The care you need. Help three days a week after surgery, then every day. Home health has a price and it is not small.
Where you live. This is the one left out of nearly every file I review. You were living independently. Now you aren’t. Moving from an independent apartment into assisted living, or up a level of care in the same community, carries a monthly difference you can calculate to the dollar. Carried out over time, it can come to more than a working person’s entire wage claim.
None of those numbers appear on their own. Someone has to sit down and build them. The carrier will not do it for you.
There is one more loss that doesn’t fit on a ledger and matters just as much. If the crash cost you the ability to drive, it didn’t cost you a car. It cost you the ability to see your grandchildren without arranging it through somebody else. To get to your own doctor. To leave the house when you decide to leave the house. Arizona law allows compensation for that kind of loss.
Write down what you can no longer do, week by week, in plain specifics. Vague loss gets valued at nothing.
Argument three: “It was a five mile-per-hour impact. Nobody gets hurt at five miles per hour.”
This argument rests on a photograph of an undamaged bumper.
Consider what the medical evidence says about a broken hip in an older adult. One-year mortality after a hip fracture is consistently reported between 15 and 30 percent. Fewer than half the people who survive one ever get back to how they were before it.
So, a slow-speed collision in a parking lot off Baseline Road, the kind that generates a $900 estimate and a shrug, can begin a sequence that runs through a fracture, a surgery, a rehab stay, a walker, and a permanent change in where and how someone lives.
The bumper photograph measures none of that.
The same pattern shows up elsewhere. Many people over 70 take blood thinners, and a knock to the head that would leave a younger person with a headache can cause bleeding around the brain that doesn’t announce itself for days. Thinner bones mean a spinal compression fracture can come from forces that wouldn’t have marked you at fifty. Someone recovering from shoulder surgery may not be able to use a walker properly, which turns a shoulder injury into a fall risk, which becomes the next injury.
None of this is exotic. It is ordinary geriatric medicine. It just takes somebody willing to explain the sequence to an adjuster who is looking at a picture of a car.
Get checked after any collision, however minor it looked, and go back if something changes in the days after.
Two practical notes
Not every injury happens on a road. Shuttle vans, community parking lots, contractors working on the property, and delivery drivers all carry their own coverage, and those claims work differently. If you signed a long residency or admission agreement somewhere, it is worth reading what it says about how disputes get handled. Do that on a calm afternoon, not a bad one.
The deadlines are shorter than almost anyone expects, and one of them is a trap.
Most Arizona injury claims allow two years to file suit, under A.R.S. § 12-542.
But if your claim is against a city, county, public school, or state agency, and that includes a city bus, a police vehicle, or a road maintained by a public agency, two shorter rules take over:
Under A.R.S. § 12-821.01, you have 180 days from when the claim arises to serve a formal written notice of claim. It has to contain specific facts, a stated dollar amount, and go to the right person. Arizona courts have thrown out notices that fell short. Under A.R.S.§ 12-821, the lawsuit itself must be filed within “one year”, not two.
Miss the 180 days and the claim is gone, no matter what any other deadline says. If a government vehicle or public property was involved in any way, that is a reason to make a call this week rather than next month.
On who the client is
One more thing, and I will say it plainly, because it matters more than anything above.
When someone over 70 is badly hurt, the call to my office usually comes from a son or a daughter. That is love, it is often necessary, and I am glad when a family closes ranks around someone who has been injured.
But if we take the case, you are the client. The law presumes an adult can direct their own affairs, and I start in the same place. You give the direction. You get my actual opinion, not the version that is easiest for everyone else in the room. If you want your daughter on every call, she is on every call, because you decide that.
Families should be involved. Involved is different from in charge.
That is also why this firm is small on purpose. We take a limited number of cases so that the person whose case it is gets the lawyer, not a file number and a case manager they have never met. It makes us selective. It also means we will tell you in the first conversation if we are not the right fit and point you toward someone who is.
An offer
I will come give a free 45-minute talk called “What the Insurance Company Does When You’re Over 70″to any independent living community, senior center, church group, or club in the East Valley that wants one. No charge, nothing sold, and I will take questions until people run out of them. If you help plan programming somewhere and you want it on the calendar, call the office.
And if you or someone in your family has been hurt in a collision, call before you give a recorded statement to any insurance company. The conversation costs nothing and it is usually short.
Allen Law Firm | Arizona’s Big Crash Lawyers
1660 S. Alma School Rd., Suite 207, Mesa, AZ 85210
480-899-1025
Bad crash. Good lawyers. goodazlawyers.com
Sources: Brinjikji W, et al., “Systematic Literature Review of Imaging Features of Spinal Degeneration in Asymptomatic Populations,” American Journal of Neuroradiology 36(4):811, 816 (April 2015). Hip fracture outcome figures reflect ranges reported across current published research. Gasiorowski v. Hose, 182 Ariz. 376, 897 P.2d 678 (Ct. App. 1994).
This article is general information about the insurance claims process. It is not legal advice, not medical advice, and not a substitute for either. How a deadline applies depends on the facts of your situation. If a deadline may be running, speak with a lawyer instead of relying on this article. Examples are illustrative and do not describe any specific client’s case. No particular result is promised or implied, and every case turns on its own facts. Reading this does not create an attorney-client relationship.