Insurer tries to avoid conclusions of independent neurologist's report. Judge rules in victim's favor.
Whiplash, personal injury and medical examination
On May 29, 2009, a man was hit from behind while his car was stopped. The car that caused the collision was insured with ASR Schadeverzekering NV. ASR acknowledged liability. The man sustained neck injuries (whiplash) in the accident.
In preparation for the settlement of the man's personal injury claim, an independent medical examination proved necessary – as is so often the case. Following consultation between the parties, an independent neurologist issued a medical report on July 5, 2012.
Personal injury and medical expertise
Such a medical report is prepared based on a predetermined set of questions. The report is normally binding between the parties.
After all, it was a joint decision to conduct the research, the choice of the doctor in question was made and a joint approach was taken to formulate questions that were acceptable to both parties.
Before the neurologist issues the report, the victim has the right to inspect it and to block it. It is customary for the report to then be reviewed by the medical advisor of the liable party and the victim's advocate. Both parties can then also submit comments or ask questions to the neurologist.
If agreement is reached on the consequences of the medical report, the victim's personal injury can be (finally) determined.
ASR initially accepts the report, but later refuses
ASR's medical advisor initially approved the report. He accepted the neurologist's findings (3% permanent disability and limitations in heavy neck-straining activities).
Based on these conclusions, a meeting between a representative of ASR and the man's advocate even took place in May 2013.
And then, suddenly, a different medical advisor joins ASR. He bluntly concludes that the report cannot serve as a basis for settling the man's personal injury claim. According to medical advisor II, the report "lacks sufficient depth and lacks critical judgment on several essential points.".
After renewed discussions between ASR and the man's representative did not result in a suitable financial settlement, ASR was taken to court.
Judge rules in favor of victim
The judge is very clear: ASR is bound by the neurologist's report and the conclusions of its own medical advisor.
The judge indicates, among other things, that:
- the neurologist was appointed jointly by both parties
- ASR has not provided any comments on the draft report
- ASR's medical advisor has stated in writing and explicitly that he agrees with the report
- on the other hand, there were no signals from ASR that made it impossible to accept the report
- ASR's claims adjuster also expressed no doubts about the conclusions of the neurologist's report.
The judge: “Under these circumstances, the man could reasonably trust that ASR had no objection to the neurologist's report and that it was mutually agreed that this report would be the starting point for further negotiations.”.
AND
Given the course of events outlined above, it must be concluded that ASR adopted the advice of its (first) medical advisor and made it its own. There is no longer any room to assess ASR's substantive criticism of the neurologist's report.
In other words, the neurologist's report should serve as the basis for the financial settlement of the man's injuries. A logical, fair, and above all, justified conclusion.
(This blog is based on the decision of the Midden-Nederland District Court dated 9 July 2014: C116/365053 / HA RK 14-51. Read the full decision here .)
If you would like to know more about whiplash injuries and the financial settlement thereof, read on here .
What customers ask
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When can I claim personal injury damages?
You can claim damages for personal injury if you have suffered an injury (been injured) due to the fault of another person
Personal injury can be caused by, for example:
In addition, you may think of injuries sustained during:
- organized trip
- unsafe product or
- fall at someone else's home, in a shop or on the street
It's best not to wait too long to file a personal injury claim. It's best to do so immediately after the accident.
Even if it is not yet clear at that time what your injury and its financial consequences consist of.
However, someone else must liable and must have taken out liability insurance for this (AVP/AVB/WA).
However, even if you caused the accident yourself, you can sometimes still claim compensation for personal injury. For example, if you SVI (Passenger Injury Insurance) or SVO (Opzittende Inschadende).
Are you unsure whether and when you are entitled to personal injury compensation?
Don't hesitate to contact us now for a free, no-obligation consultation. It's free , and you'll know exactly where you stand. Afterward, you can decide for yourself what to do with our advice.
What injuries do you treat?
We can actually help you with all types of personal injury
Van der Toorn Personal Injury can help you with all types of injuries. We specialize in handling "serious personal injuries," such as:
- brain injury (ABI)
- spinal cord injury
- burns
- dystrophy
- bone fractures and
- cosmetic injury.
But of course, we are also very happy to be there for you if someone else has sustained an injury. Such as neck injuries, whiplash, back injuries, bruises, sprains, dog bites, temporary injuries, and you name it.
We cannot help with all types of personal injury
The only thing we cannot help you with is personal injury caused by:
- violence
- medical errors and/or
- situations of abuse.
In that situation, we will of course refer you to a party that is specialized in this.
Always request free, no-obligation advice on personal injury claims
Do you have questions about your personal injury? Or are you unsure if we're the right place for you?
Please do not hesitate to ask us for a complete and free, no-obligation personal injury claim consultation.
When should I contact you?
You don't have to! But it's in your best interest to contact us as soon as possible
Only then can you be certain that there is someone who thinks solely of your interests . Because that is our job: thinking of *your* interests.
But what is: as quickly as possible?
Sometimes an insurance company will contact you very shortly after the accident. They'll ask how you're doing and also ask for all sorts of other information.
You cannot know whether that insurer is asking “too many questions” from a legal perspective. About your health before the accident and which doctors you visited. You would rather avoid that, wouldn't you? So never wait too long to engage a personal injury firm.
It's also likely that you'll quickly incur significant expenses . Or your incomemay disappear. We'll handle the initial damage payments from the other party. Then you can focus on your recovery.
Would you like to know what's best for you? Don't hesitate to contact us , without obligation
We'll give you clear advice right away . Then you can decide for yourself what to do with it.
If we think we can help you, we will let you know right away.
At the same time, we guarantee that our legal assistance completely free of charge .
To learn more about our FREE personal injury assistance services, click here.
What personal injury compensation amounts am I entitled to?
The personal injury compensation amounts you are entitled to are:
Allowances for additional assistance, such as:
- household help, shopping, taking children to school, etc.
- help in the garden and
- help with the maintenance and painting of your home.
In addition, your personal injury may have consequences for your income, such as:
- income that is not fully paid (self-employed person, temporary worker, zero-hour contract, etc.)
- no more irregular hours allowance
- no longer being able to work overtime
- missed promotions and
- missed pension accrual
Finally, you can consider other equally important personal injury compensation amounts, such as:
- Study delay
- Reintegration costs for guidance to other work
- Costs associated with admission to a hospital or rehabilitation center
- Travel expenses
- Medical expenses
- Non-pecuniary damages
- Economic vulnerability
- Statutory interest
- Furthermore, all costs that you would not have incurred without the accident…
- For example, the wages you did not receive because you could not go to work.
- Gasoline because you had to go to the hospital or the physiotherapist.
- Medicines that were covered by your deductible.
In addition, you are always entitled to compensation for pain and suffering, also known as non-material damages.
This is compensation for "loss of enjoyment of life." Your damages should compensate you for your grief, pain, and anything else that might have made you less happy than before the accident.
Unfortunately, Dutch law is not generous in awarding damages for pain and suffering. Therefore, the amounts awarded in the Netherlands are not considered "fair enough.".
If you'd like to learn more about non-pecuniary damages, click here. If you'd like to learn more about personal injury damages, click here.
Calculating non-pecuniary damages
Calculating non-pecuniary damages:
You are always entitled to compensation for pain and suffering. This is the "non-pecuniary component" of your personal injury compensation.
What is non-pecuniary damages?
Pain and suffering compensation is not in itself a “hard legal term”. It is compensation for damage that cannot be expressed in monetary terms.
So, everything that doesn't fall under additional costs or lost income. It's essentially compensation for your "mental damage.".
How to calculate non-pecuniary damages
People often ask us at the very beginning of their personal injury case how much compensation they are entitled to.
That question is actually impossible to answer. And any personal injury lawyer who claims otherwise is mistaken.
When can you calculate my non-pecuniary damages?
Your compensation for pain and suffering can only be definitively determined at the end of your personal injury case.
Only then will it be known what psychological consequences your injury has had and/or will have for you.
Because it is the psychological consequences that largely determine your compensation for non-pecuniary damages.
Important factors in calculating non-pecuniary damages
Important factors for calculating your non-pecuniary damages include:
- the nature of your injury
- the severity of your injury
- your age
- your gender
- your level of consciousness
- whether you will have permanent scars and where those scars are located
- whether you have physical limitations that affect your quality of life
- how much pain have you suffered and continue to suffer
- how long your recovery period was and
- whether you have recovered at all or whether there is permanent damage.
Indication calculation of non-pecuniary damages:
We cannot predict exactly how much your compensation for non-pecuniary damages will be.
What we can do is give you a general indication of the amount of your compensation for pain and suffering.
If this sounds appealing, contact us today for a free, honest consultation. Afterward, you can decide for yourself what to do with it.
We are happy to help you calculate and claim your compensation for pain and suffering and other personal injury damages, such as your additional costs and lost income.
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Calculating non-pecuniary damages? Ask for advice! We're happy to help. Want to know more about calculating non-pecuniary damages? Click here.
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