Loss of Enjoyment of Life is a unique term used within insurance company bodily injury software used to evaluate personal injury claims. The original programmers of Colossus, and later Liability Navigator, used the term "Loss of Enjoyment of Life" as a replacement for the change in quality of life part of non-economic damages. While each state's definition of change in quality of life provides no delineation of how that is to be evaluated, these software programs provide value to over 100 different types of changes in a client's function.
Based upon Aaron DeShaw's authoritative text on bodily injury software Colossus: What Every Trial Lawyer Needs to Know, Loss of Enjoyment of Life is most the Fourth most valuable factor in bodily injury claims.
DeShaw notes that based upon non-protected software manuals and original programming notes, all "loss of enjoyment of life" for a claim is valued based upon six categories of Duties Under Duress, and over 100 sub-factors in those six categories. Each of these has monetary value. DeShaw created forms (published by Trial Guides as the Colossus: Legal Forms) to collect information on these factors and sub-factors that must be used in personal injury claims in order to get the insurance software to provide an evaluation of the claim most likely to provide a better settlement offer in the client's case. This information is trademark protected by Trial Guides and Aaron DeShaw, so Settlement Intelligence has exclusively licensed this intellectual property and as such, no competing demand letter software will be able to provide these 100+ value drivers within their software. All of the Loss of Enjoyment of Life factors and sub-factors are contained within the Settlement Intelligence algorithm to help you generate demand letters most likely to maximize settlement offers. But, the forms are necessary for you and/or a doctor to collect this information in order for it to be usable in a claim. As discussed below, you cannot simply enter information without proof of the loss from the client and their doctor.
If a client has a loss of enjoyment of life, the physician should note that in the chart note, and the narrative report. They should include what activity was affected, why it was affected by the injuries sustained, and how long the client had their ability to participate in those activities impacted.
Adjustors are instructed that three things must occur in order to enter “Loss of Enjoyment of Life” in the claim software:
- The injured party must have had an impact to one of the evaluated activities provided value within the software;
- The physician must appropriately chart the injured party’s change in ability to participate in these activities; and
- The lawyer must specifically make the claim for the Loss of Enjoyment of Life.
If any one of the three is not applicable, the adjustor doesn’t enter the Loss of Enjoyment of Life. So, even if the client has pain while working, and the doctor notes it appropriately, the client is given no monetary value in the settlement evaluation, unless a claim for Loss of Enjoyment of Life is in your demand letter. This is a reason why 3/4 page demand letters or medical timeline demands don’t result in full value for a claim that will be primarily analyzed by an insurance claim software program. You miss things like Loss of Enjoyment of Life that could significantly boost the value of the claim. As DeShaw discusses, failing to make a Loss of Enjoyment of Life claim could result in a significantly decreased settlement offer.
Some of the past non-protected claims manuals have suggested a claim for Loss of Enjoyment of Life can only be considered if there is an AMA Whole Person permanent impairment rating. Former adjustors have noted that the permanent impairment must be greater than 2-3% (dependent upon the insurer) before the screens for Loss of Enjoyment of Life will pop up for the adjustor. If the impairment is less than that, the “Loss of Enjoyment of Life” screens will not pop up in Colossus. That said, a lack of an AMA impairment does not mean that the client didn't have a loss of quality of life during the injury (or permanently).
[As a side note: If you make a loss of enjoyment claim within your demand and no value is provided by the insurer for the client's losses, it would constitute a bad faith claim evaluation by the insurer for failing to including any value for something supported by the statutes, case law, and pattern jury instructions of your state for the value of non-economic damages. If you want to settle the case it is best to get an AMA impairment rating (where one exists) even if the percentage will be low (for something like a loss of range of motion), because this may be required to enter the Loss of Enjoyment of Life factors. If you are open to filing litigation and going to trial on the case, the low settlement offer provided due to a lack of AMA impairment rating may leave the insurer subject to an insurance bad faith claim, because the failure to provide any value for the claimant's change in quality of life will open the door to the issue of systemic underpayment of claims evaluated by the insurer's software, potentially making the case worth significantly more.]
If your firm is producing short demand letters that do little beyond a vague summary of the injuries and a monetary demand, you are settling your clients cases for less than they are worth in the insurance company's software. At the same time, if you are producing 50 page medical timeline or narrative demand letters that ramble on and on, never discussing issues like Duties Under Duress or Loss of Enjoyment of Life with the specificity required by the insurance company software), you still don’t get the maximum settlement offer for the client.
The Settlement Intelligence platform creates demand letters based upon what the insurance software is evaluating, and in the order that adjustors are asked to enter the information. These programs are used in over 90% of all auto cases in the United States (as well as a high percentage in Canada, the UK, Australia, as well as other countries in Europe and Asia.) Loss of Enjoyment of Life, is a Top 5 value driver in these programs and one that is almost never addressed by lawyers who write traditional demand letters. Failing to use Settlement Intelligence in your cases results in your clients obtaining thousands or tens of thousands of dollars less per case than they deserve for their injuries. By consistently using Settlement Intelligence for your demand letters, your firm will obtain higher settlement outcomes for your clients, giving your law firm an advantage over competitors.