What Kinds of Pain and Suffering Damages are Recoverable in a Personal Injury Claim?
If you or a loved one is injured because of someone else’s carelessness, and you decide to pursue a claim, the question then becomes what is the value of your claim? Several elements of damage can be recovered in a personal injury claim including:
- Medical expenses, past and likely to be incurred in the future
- Physical pain and suffering and mental anguish, past and likely to be incurred in the future
- Lost wages, past and likely to be incurred in the future
- Reduction of earning capacity
- Loss of enjoyment of life
- Loss of consortium by a spouse
- Loss of services, if injury is to a child
In this post, we will examine what factors go into determining pain and suffering damages.
What is Pain and Suffering?
Pain can be a physical sensation ranging from burning, stinging, throbbing, sharp, nagging and annoying physical pain, with the level of the sensation causing a complete or partial disruption of the sufferer’s ability to function. Pain can also be mental or emotional anguish suffered as a result of your injury, such as anxiety, fear, or anguish, with an equal degree of disruption to the sufferer’s level of function.
Proving physical and emotional pain and suffering can be difficult since it is so subjective, and is specific to the person experiencing it. The level and severity varies from person to person, and can change from the acute or short-term phase of an injury into a chronic or long-term condition.
The simplest way to illustrate pain and suffering is to compare the injured person’s lifestyle before and after the injury. What did the person physically and emotionally do at work, home, and play before the injury? Once injured, how did those physical and emotional abilities change? For how long have the changes occurred? Will the changes continue into the future? Does the person have a short-term injury or a long-term injury?
One objective way to demonstrate pain and suffering is to create a daily calendar of all activities in your life including work, play and home activities, and evaluate how those activities of daily living have or have not changed since the injury. Examine your calendar before and after your injury. How many activities have you continued, or discontinued, since your injury? Are you continuing to do things but now with pain, or choosing not to do things you normally did before your injury?
Physically, how active were you before your injury? For example, did you
- Play sports?
- Go hunting, fishing, hiking, or participate in another outdoor activity?
- Do your own yard work or gardening?
- Work around the house?
- Pursue artistic hobbies like painting, crafting, or scrapbooking?
- What hobbies did you have?
- Were you involved in your church?
- Like to travel?
- Spend time with friends?
- Go to the movies, theatre, or ballgames?
- Do you eat out less frequently since your injury?
These are just some examples of the types of life activities that may be negatively affected by an injury.
Regarding work, are you able to perform the same physical work duties of lifting, carrying, pushing, pulling, working with your arms and hands, sitting or standing for long periods?
- Are you operating under work restrictions since your injury?
- Has your employer temporarily accommodated your injury by reducing work duties, travel, or responsibilities?
- Are you working fewer hours because of your injury?
- Do you have to get up and move around frequently, or have you changed your workstation?
- Have you lost your job because you can no longer perform the necessary work duties?
- Have you lost your opportunity for overtime work and the additional compensation that comes with it?
Emotionally speaking, do you
- Suffer from depression, anxiety, or some other form of emotional distress since your injury?
- Have trouble sleeping now?
- Suffer from PTSD?
- Choose not to participate in things you used to enjoy because of anxiety or stress?
- Is your injury negatively affecting your marriage, your friendships, or other personal relationships?
The more that a person can independently verify these differences, the more receptive the insurance company will be to claims for pain and suffering damages. If your doctor supports your long-term injury claim, your doctor needs to put that medical opinion in writing with details of your permanent physical restrictions and future medical needs.
Insurance companies evaluate claims based on whether your damages are short-term or long-term. Creating a daily calendar can objectively demonstrate how the injury has affected your life, and how your life will continue to be affected in the future. The more details you can provide as to the difference in your ability to function in all these areas of your life to your doctors, your lawyer, to the insurance claims adjuster, or ultimately to a judge and jury, can make a substantial difference in what is a fair amount in a claim for monetary damages for physical and emotional pain and suffering.