Value of Pain and Suffering Damages
As you move closer to complete recovery from your car accident injuries, you begin speculating about your future settlement. Your friends and family do too. They share tales about someone’s cousin Joe and how he received $50,000 for a broken finger. They talk about that person on the news who received a two million dollar judgment for a whiplash injury. While entertaining, these conversations don’t help you get any closer to understanding how much you should recover for your pain and suffering damages, because they’re not about you. Read on to learn what factors really matter and how a car accident attorney can help you determine your claim value.
Unfortunately, that’s the way it goes when you’re ready to settle your injury claim. You get ideas from everyone you know, but there’s one major problem: Your injury claim is unique. Even if you have the same injury the court or your attorney has seen many times before, the individual impact the injury has had on your, your family, and your career will never be identical to someone else’s.
While you understand that your claim is different from someone else’s, often the negligent driver’s liability carrier won’t acknowledge that. They save costs by looking at every injured person from the same perspective. They offer low settlements for pain, suffering, and other non-economic damages because it’s the easiest way to reduce a claim payout. Unless a legal professional is handling your claim negotiations, they often wear you down with consistently low offers until you finally agree.
How Much Can I get for Pain and Suffering?
Your pain and suffering settlement amount remains a question until the liability carrier agrees to pay a reasonable amount and you agree to accept it (or a jury renders a verdict). Pain and suffering damages aren’t one-size-fits-all benefits like Florida worker’s compensation payments. State statutes standardize WC payments. Injured workers determine how much they’ll receive by simply plugging a few numbers into the Division of Worker’ Compensation’s online Benefits Calculators.
A pain and suffering payment doesn’t work that way. Theoretically, it’s based on your injury and your post-accident recovery experience. Realistically, other factors help determine why someone might receive $50,000 while someone else with the same injury, pain, and suffering receives $10,000.
- Investigation: Determines the party or parties with responsibility for your injuries.
- Evidence: Documents liability, your injury, pain, medical, treatment, and other issues.
- Presentation and negotiation skills: A skilled negotiator presents a more convincing case.
- An attorney: Traditionally, injured people with legal representation receive higher settlements.
Your Pain and Suffering Claim Is About You
When someone offers you a settlement for a Florida car accident claim, or a court determines an award, they typically break it down into two components: Economic and Noneconomic damages. The economic losses are a simple math problem. The insurance company adds up your treatment expenses and income losses. These include emergency treatment, doctor bills, hospitalizations, medication, prosthetic equipment, and anything else for which they can easily calculate a cost. Your Florida PIP carrier typically pays up to $10,000 for out-of-pocket costs.
The noneconomic losses are far more difficult to evaluate, because they’re based on your personal feelings and subjective responses. Courts have yet to find a way to measure a person’s genuine pain and suffering. They must accept your word when you talk about how your injury made you suffer, and it is often necessary to rely on expert testimony or evidence to justify subjective consequences.
They also consider other factors:
- How serious was your injury? if you sustained a compound fracture requiring open reduction surgery, pins and plates, and physical therapy, the person evaluating your claim has no problem accepting that it was a long, painful experience. Conversely, appearances are the primary reason why insurance claims people doubt back injury pain. A person with a back injury is often in horrible pain. Claim handlers discount the pain and the injury seriousness as the injuries often start out as simple soft tissue pain and worsen over time. Also, there are no externally visible signs to confirm what a person with a back injury feels.
- How long was your recovery? Not everybody recovers at the same pace. While a compound fracture is serious and painful, when you bounce back in record time it might diminish your pain and suffering claim.
- Did your pain prevent you from doing your normal activities? If you’re back at work, mowing the lawn every Saturday, and playing golf on Sunday, that says something about your pain. If it’s bad, it’s not bad enough to stop you from living a productive life: insurers will use this to reduce claim awards.
- Did your pain affect your relationship with your spouse? The attorney evaluating your claim will want to talk about how pain and suffering affected your spousal relationship. The details help them evaluate your loss of consortium damages. If you choose not to talk about your spousal relationship or provide personal details, you’ll have limited rationale to support a consortium claim. A settlement also considers how injury or pain changed your relationship with your children.
- What’s happening on your social media pages? When a claim investigator wants to know if your pain is truly bothering you, they track you on social media. Injured or not, some people just can’t stop sharing their life on Instagram or Facebook. Others show off their dance moves on Tik Tok. If you’re an avid social poster, you could be demonstrating that your pain isn’t as bad as you say.
- What will your neighbors say? If you think someone has been watching you, it might not just be paranoia. Insurance companies hire investigators who talk to your neighbors, colleagues, and friends. Unfortunately, some parties may talk, even if they don’t know the full story. Investigators also watch you to determine if you’re suffering as much as you say you are. The person watching you might sit in front of your home with a camera to capture you on digital video.
Documenting Your Pain and Suffering
You’re the only one who can accurately explain how your pain suffering affects your life. It’s up to you to document your story to share with the people who evaluate and negotiate your injury claim. Immediately following your accident, the sensations are intrusive and often debilitating. You think you’ll never forget them but, as time passes, the pain subsides and your physical and emotional suffering diminishes.
You’ll need a clear record of those awful days to share with the people who eventually evaluate and settle your injury claim. When you keep a daily journal, a year or two from now you’ll still have first-hand information. A journal reinforces your memories when you must describe your pain and suffering during a consultation, deposition, or hearing.
Your documentation doesn’t have to be formal. Use a journal or a plain spiral-bound notebook to record each day. Include notes about your pain and suffering, your emotional setbacks, and your daily activities and limitations.
Helpful topics include:
- Your pain and suffering immediately after the accident
- Discomfort from treatment and hospitalization, surgeries, procedures, injections, restrictions, etc.
- Your pain’s location and intensity
- Any emotional meltdowns you experience
- Household tasks you can’t do because of pain
- Tasks you try to accomplish but can’t
- How pain and suffering prevents you from preparing or serving meals
- Painful disruptions during special family events and intimate spousal moments
As you recover, a journal provides a running commentary about daily post-accident experiences. If you consult with an attorney, be sure to mention your journal. It assists in evaluating and negotiating your claim.
Your Pain and Suffering: The Perceived Value
When you ask an artist why his not-so-great paintings sell for $10,000 each, he will likely repeat an old artists’ cliche: “It’s not the value, it’s the perceived value.” It’s often that way when attorneys, juries, and claim-handling professionals evaluate injury claims. Jim Taylor, Ph.D. discusses perception in his Psychology Today article “Perception is Not Reality.“
As he explains: “Perception acts as a lens through which we view reality.” It sounds odd, but your pain and suffering’s value is what others perceive it to be—after all, it is others who ultimately determine your compensation.
Each person involved in an evaluation and negotiation process perceives a claim’s value based on their own beliefs, claim handling experience, and personal biases. When two people describe their pain, one person’s pain sometimes seems more intense. Perceptions come into play when two different people describe painful reactions to identical injuries. The claim handler will often see one person as more credible than the other. When it’s time to settle, those perceptions often translate into a bigger or smaller settlement offer.
A claim handler’s personal perceptions usually guide an insurance company’s internal evaluation and negotiation process. When a claim involves catastrophic injuries with values beyond the handler’s authority, they gain authority from higher-ups by convincing them that their perceptions are accurate.
Insurance Company Claim Evaluation Software
Claim evaluation software like DXC’s Colossus hasn’t taken over every insurance company claim department, but it’s a growing trend. The companies that create the software and the insurers that use it insist that it makes evaluations fair and consistent. They stress that it benefits claims handlers, especially those who are inexperienced.
Claim evaluation software certainly makes the process more productive and efficient. The list of benefits stacks up on the insurance company’s side. It does nothing to make the process better for injured plaintiffs. An automated process dismisses the idea of human experience. While the software does factor in conditions and severities, it doesn’t analyze the little human subtleties that make each claim different. Having a computer perform a claim evaluation is on par with multiplying an injured person’s medical bills by a random factor.
Proponents of replacing humans with software say this makes claims more consistent. While this is probably true, consistency is a factor that’s traditionally a non-factor in injury claims. Each injured person is different and no two injuries are exactly the same. Ten people with the same injury heal at different rates and respond differently to the same painful stimuli.
Artificial intelligence and machine learning technology may eventually learn better ways to evaluate claims. Currently, claim evaluation software is just that: cold software.
Online Personal Injury Settlement Calculators
If you’re online and searching for ways to calculate your pain and suffering settlement, you’ll likely find several versions of the Claim Settlement Calculator. These online devices are similar to worker’s compensation benefits calculators. You input your injury information, push “calculate,” and receive a dollar settlement range.
These simple forms are a hybrid of old-school factor evaluations and new-school claim evaluation software. They serve the same purposes. They provide an easy answer for injured people. They give attorneys an efficient way to handle questions about potential settlements. Of course, attorneys caution users that a settlement calculator is not legal advice; don’t put too much stock in these estimates until you actually sit down with an experienced accident injury lawyer.
Court Settlement Statistics
Some attorneys subscribe to publications that provide data on recently tried cases. Attorneys use the information as a reference to help determine a claim’s value and support their negotiation position. These reports don’t include cases settled directly with insurance companies, but they help attorneys define injury claim settlement ranges.
People who have a lengthy history of investigating, negotiating, and litigating injury claims tend to shun formulas and software. They usually handle claims based on experience. After investigating, evaluating, and settling so many claims over the years, they understand values and potential settlement ranges. They use their knowledge to settle cases. The most experienced people also understand that it’s impossible to accurately predict how much it will take to settle a case until they’ve entered the negotiation process.
A Car Accident Lawyer Can Help
If you want to know more about filing a claim for pain and suffering, contact a car accident lawyer. A law firm investigates injury cases, determines claim values, and works to obtain a fair settlement or award. A consultation allows you to share your story with an attorney. You learn more about your legal options without having to commit to making a claim or filing a lawsuit. They deal with insurance companies and their attorneys, while you focus on rest and recovery.
Dolman Law Group
800 N Belcher Rd
Clearwater, FL 33765