It is a sad fact that no matter how careful we are, traffic accidents can and do occur.  In this column I will look at what you should do if you find yourself in the unfortunate circumstance of suffering an injury in a traffic accident in Japan that leaves you with a residual disability.

“After-Effects” does not equal “Residual Disability”

Generally speaking, an after-effect refers to “pain or disability that has not healed even after treatment, due to an injury suffered in a traffic accident”. For example, pain or numbness that remains half a year later in the case of a whiplash injury.  But it does not mean that it will fall within the definition of a “residual injury” for which compensation can be claimed. For the purposes of compensation after a traffic accident, residual disability means “a traffic accident injury supported medical evidence that causes a loss in the ability to work, and which falls within the mandatory vehicle liability insurance injury levels”.

In other words, no matter what pain is suffered due to a traffic accident injury, if it does not fall within one of the insurance injury levels, it will not be a “residual injury” for the purpose of compensation.

When does an injury become a residual injury?

In the case of an injury such as a broken bone, in principle healing is completed when the fracture has adhered, and if there is still pain due to the bone not aligning properly, then this can be called an after-effect. The problem is that for injuries such as whiplash, there is no visible injury even if an MRI scan is taken, which means there is no objective evidence of whether healing has completed. If the pain from whiplash does not go away, it is difficult to say how long treatment should continue, and from what point it should be deemed as an after-effect.

Generally, a doctor would say that an injury has become stable “at the point in time where the symptoms will neither improve nor worsen with further treatment”, and it is at that point that healing has ended and any residing pain is an “after-effect”. However, this is not a medical theory but a legal fiction that has been born from legal practice.  A further explanation of this concept of “stable injury” is contained in this column <<INSERT LINK TO COLUMN NO. 25>>.

A “stable injury” is determined by obtaining the opinion of the treating doctor, as well as taking into consideration the condition of the injury, the average treatment time, and the position of the insurance company of the opposing party.

The meaning of the opposing party’s insurance company discontinuing payment of medical costs

Although some people think that an injury is “stable” when “the opposing party’s insurance company discontinues payment of medical costs”, this is not the case. After all, an insurance company is not a doctor, so they are unable to decide the time that an injury has become stable.

Upfront medical costs are generally first paid by the victim and then claimed from the opposing party, but as the costs increase there is a risk that the victim will not be able to afford the full amount of upfront costs, so the opposing party’s insurance company bears the costs as a “service”. Therefore, the insurance company discontinuing the payment of medical costs only means that they have ceased providing the “service”. Generally, the opposing party’s insurance company discontinues payment when “the type of injury suffered has usually healed after this period of time”, which does not mean there is any clear evidence of healing. Therefore, even if the payment of medical costs is discontinued, it is not a “stable injury” as long as the treating doctor determines that further treatment is required.

However, if the opposing party’s insurance company discontinues the payment of medical costs, it will be necessary to consider at this time whether to continue treatment, since the costs will need to be paid upfront.

Will a treating doctor prepare a residual disability medical certificate?

At the time that an injury has become “stable”, a “residual disability medical certificate” should be received from the treating doctor. A “residual disability medical certificate” is a “medical certificate prepared by a doctor from a medical point of view that diagnoses conditions that remain at the time an injury has become stable” and is the most important document in the residual disability level certification process. If the treating doctor is asked to prepare a residual disability medical certificate they will do so, but sometimes they do not include sufficient details. This is perhaps a matter of course, since a “residual disability level” is a legal concept that is defined for the purpose of processing compensation for traffic accidents, and it is difficult to expect a doctor to fully understand it when preparing a certificate. Therefore, to receive a residual disability medical certificate that contains the appropriate details in order to fall within a residual disability level, it is necessary to identify what contents and what examinations are necessary, and to also consider whether to ask the treating doctor.

Pre-Certification and the Victim’s Claim

The two options for obtaining residual disability level certification are “pre-certification” and “victim’s claim”.

The first option, “pre-certification”, can only be used when the other party’s insurance company is bearing the full amount of the medical costs. If the victim continues to pay for treatment after the insurance company has stopped paying, or if the victim was paying the medical costs from the beginning, then this option cannot be used. Pre-certification is where, if the other party’s insurance company is bearing responsibility including the payment of compensation to the victim from the mandatory vehicle liability insurance, the insurance company will perform the residual disability level certification process on behalf of the victim as part of the claim for compensation against the mandatory vehicle liability insurance. This may be confusing, so to put it simply, it is a process where the other party’s insurance company will collect all of the documents required for the residual disability level certification process instead of the victim and make the claim for certification to the mandatory vehicle liability insurance. This process can be called easy because, if the residual disability medical certificate is sent to the other party’s insurance company, then in principle the insurance company will perform all of the processing. However, there is the disadvantage that, because it is the insurance company of the party that caused the accident which is performing this very important process of residual disability level certification, they will not be proactive towards receiving certification of a residual disability, and the process will not be completely transparent.

On the other hand, a “victim’s claim” is, as the wording suggests, is where the victim collects all of the medical records and data from the medical institutions and submits them together with the residual disability medical certificate to the mandatory vehicle liability insurance and makes a claim for certification. Although the collection of documents is very time consuming, the victim is able to control the process, and it is sometimes possible to add extra information that cannot be gleaned from the medical records alone.

So which is better – pre-certification or a victim’s claim?

It is plausibly said that it is difficult to receive certification of a residual disability using pre-certification and easy with a victim’s claim, but normally if the same documents are submitted, then the result should not change. When it comes to deciding whether to use pre-certification or a victim’s claim, if there is information to be added that is not apparent in the medical records, if there are certain contents in important medical records that you want to emphasise in the application, or if it is a borderline case where certification of a residual disability may or may not be granted, then it would be better to also consider using the victim’s claim option.