Pain And Suffering (Past And Future)

1. Pain & Suffering Awards Require the Attorney To Know The Case

Today, many claims adjusters are offering only the medical bills, with perhaps a few hundred dollars for pain and suffering, even when the medical bills total thousands of dollars. While a minority of adjusters may actually believe that the injury did not result in pain and suffering, most adjusters are following company policy when offering these low sums. The insurer's experience is that many claimants will not want to take the time or spend the money to litigate. This is particularly true for pro se claimants.

The first step in evaluating pain and suffering is to secure a detailed statement of how the collision occurred. Jump start this process by securing and reviewing the police accident report to determine if the client reported injury at the accident scene. Always ask the potential client to describe the mechanism of injury, such as "my head hit the driver's side window." Also always ask what part of the body was injured and when the pain was first felt.

Not every collision will cause sufficient injury to justify legal representation.

Practice Pointer: Many insurers are fighting small claims, which are commonly referred to as MIST claims (minor impact - soft tissue injury) and you can find yourself spending far more hours than you expected on such claims. You may want to increase your attorney fee above the standard one-third to justify the time and effort expended on a small, but otherwise legitimate claim.

2. Argue Pain and Suffering Directly From the Medical Records

Review the medical records for objective findings which are consistent with a painful injury. It is common to find terms such as "spasm", "trigger points" and "limited or restricted range of motion." These findings are reproducible by any provider and are not solely dependent on the word of the patient. Also look for the type and amount of prescription strength medication consumed by the patient. The use of such medication is also consistent with a painful injury. It is common to find references to pain on a scale of 1-10 in the medical records. While the rating is from the patient, a high number that is consistent with other findings in the record can be useful.

3. Seek Facts About Activities of Daily Living (ADL)

It is important to discuss with the client how his daily affairs were affected by the injuries. For example, many clients have small children who require a great expenditure of energy, a serious issue for an injured client who cannot bend or turn his head or sleep. Other activities which are likely to cause pain are household chores, such as cooking, cleaning, vacuuming, laundry and grocery shopping. This author has found that physical therapy notes may be most helpful in identifying activities affected by the injury.

Be sure to ask if the injuries affected any holidays, birthdays, or special events. For example, an injury occurring before Christmas can disrupt long held plans for holiday trips, meals and events. Do not depend on the client to connect the disruption of these events to the injury claim. You must interview the client and ask detailed questions to explore this aspect of the injury claim.

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