If you sustained injuries in an accident caused by someone else’s careless or reckless conduct, chances are you have legal rights to receive financial compensation from the party at fault.
Most of the time, that entitles you to payment of two kinds of damages: economic and non-economic. Economic damages are what they sound like-the expenses and financial losses caused by your injuries. Non-economic losses are the other ways your injuries negatively affect your life-what lawyers generally refer to as pain and suffering.
But what if, instead of paying your damages out-of-pocket, the at-fault party carries liability insurance that covers the damages that party owes for harming you? Does the insurance company pay for pain and suffering?
The short answer is yes. But that doesn’t mean an insurer wants to pay for your pain and suffering. To give yourself the best chance of forcing an insurance company to pay the full amount of your pain and suffering damages, you’ll need the help of an experienced personal injury attorney.
What do pain and suffering include?
The term pain and suffering serves as a catch-all to refer to many non-economic damages you might suffer in an accident caused by someone else’s harmful conduct.
It takes into account:
- The physical pain and discomfort caused by your injuries, treatments, and the healing process;
- The emotional suffering and mental health challenges (such as depression, anxiety, or PTSD) caused by the trauma of your accident, your injuries, your treatments, and your healing process;
- The inconvenience and frustration of living with your injuries and disabilities related to them;
- Your loss of enjoyment of life flowing from the accident and your injuries, such as when you can no longer participate in favorite activities or pastimes;
- Interference with your personal and intimate relationships, including loss of consortium with a spouse;
- The trauma and challenges of living with scarring and disfigurement due to your injuries.
This is not a complete list. Rather, it can be helpful to think of pain and suffering as making up any damages you suffered that do not directly relate to identifiable financial costs and losses.
How Insurers Calculate Pain and Suffering?
Because your pain and suffering consist of the non-financial harms you’ve suffered, it does not lend itself to easy calculation. What price is it fair to put on chronic aches and pain? What amount of money compensates you for emotional struggles and life challenges?
Liability insurance companies (and personal injury lawyers) confront these questions regularly. And they have developed a variety of techniques to answer them. Perhaps unsurprisingly, insurance companies favor calculation methods that minimize the money they must pay to an accident victim. In contrast, lawyers prefer methods that give their clients the maximum compensation possible.
Key Factors in Weighing Pain and Suffering
All insurers and lawyers, however, begin their analysis in the same place, which involves understanding the full scope of an accident victim’s pain and suffering.
This will commonly account for:
- Injury type and severity. The more debilitating the injury, the greater the pain and suffering.
- Medical treatment timeline and requirements. Injuries that require multiple doctor visits, surgeries, and therapies over many months or years are likely to garner higher pain and suffering awards than injuries that doctors can treat in a relatively short (e.g., six months or less) time.
- Age and prior health of the victim. Pain and suffering may last longer and affect a previously healthy, younger victim more than an older victim who was already in poor health.
- Life impacts. The more significant the inconvenience, disruption, and challenges the victim faces because of an injury, the more the pain and suffering that deserves compensation.
At times, these factors can seem somewhat arbitrary. Insurance companies use them to make an inherently subjective, complicated task-translating pain and suffering into dollars and cents-seem objective and straightforward.
Lawyers for injured victims often need to work hard to counteract insurance companies’ assumptions about these factors. They aim to ensure that pain and suffering damages reflect their clients’ actual circumstances and not merely an insurance adjuster’s generic belief about what specific types of claims are worth.
Using Per Diems to Calculate Pain and Suffering
To simplify calculating pain and suffering, insurance companies frequently turn to seemingly straightforward methods. But these methods tend to hide significant complexity and rely on broad assumptions. If not carefully policed by personal injury lawyers, they can make it easy for an insurer to pay less than the victim deserves.
One such method uses per diem amounts to calculate a victim’s pain and suffering. Simply put, this amounts to assigning a dollar value to a single day’s worth of pain and suffering and then multiplying it by the number of days that pain and suffering will likely last. To determine the per diem and number of days, insurers often rely on broad assumptions about the daily impact of certain injuries and actuarial data to estimate victims’ standard recovery times and life expectancies.
The per diem method is simple, in other words, but also ripe for manipulation. Insurers will generally try to minimize both the per diem amount and the length of time over which it should apply. Per diems can result in low pain and suffering awards for older victims, in particular, if an insurer takes a hard-line stance on a victim’s pre-existing conditions (lowering the per diem amount) and life expectancy (reducing the time), for example.
Personal injury lawyers frequently need to push against insurers’ generalized assumptions and actuarial math to get their clients a fair pain and suffering award based on a per diem. This may involve collecting detailed evidence to differentiate their client’s situation from the insurance company’s broad assumption. Successful lawyers may also point to their track records of securing pain and suffering awards that reflect a higher per diem than insurers initially propose.
Using Multipliers to Calculate Pain and Suffering
The second method frequently used by insurance companies to calculate pain and suffering involves assigning a numerical grade-referred to as a multiplier-to the victim’s pain and suffering, and then multiplying that number by the victim’s economic (financial) damages. The more severe the injury and its impact, the higher the grade, and the larger the amount of pain and suffering damages.
Insurance companies use multipliers because it shortcuts evaluating the subjective nature of pain and suffering. Insurers can simply assume, for example, that a broken arm rates a 1 for a multiplier, whereas a spinal cord injury rates a 5. Then it’s just a matter of adding up economic damages and doing some basic multiplication to arrive at a pain and suffering number.
Personal injury lawyers often have to fight back against the simplistic assumptions of using multipliers.
For one thing, it’s not always accurate to assign the same number grade to all injuries of one type-after all, the negative life impact of a broken arm will depend on the break, the victim’s life circumstances, and a host of other factors. For another, economic damages can vary widely based on arbitrary factors like geography or the effectiveness of a particular treatment.
Using a multiplier amplifies the randomness of economic damages, and can lead to vastly unequal awards for identical degrees of pain and suffering.
Impact of Policy Limits on Pain and Suffering Payments
An insurance company’s obligation to pay for your pain and suffering arises from a contract-a.k.a., an insurance policy-between the company and its policyholder. That contract governs when, how, and how much the company must pay pain and suffering to an accident victim like you. Importantly, every insurance policy sets a maximum amount of money, known as a limit, on the amount the insurer might have to pay.
The size of a policy limit can, and frequently does, impact how the insurance company handles your pain and suffering claim.
On one hand, if the policy has a low limit, the insurance company may agree to pay you the maximum available since any reasonable calculation of your pain and suffering adds up to far more than the policy covers.
On the other hand, if the policy has a high limit, the insurance company may fight tooth-and-nail to limit the size of your claim and minimize the amount it ends up paying you.
Personal injury lawyers who represent injured individuals like you take policy limits into account in advising whether to pursue a claim and/or accept a settlement. A policy limit may also affect your lawyer’s contingency fee (the percentage of any award your lawyer gets to keep), so make sure to discuss limits with your lawyer as soon as possible.
Workers’ Compensation Insurance and Pain and Suffering
There is one type of insurance commonly involved in personal injury cases, however, that does not pay pain and suffering damages. Workers’ compensation insurance covers individuals against injuries and illnesses they suffer in connection with their employment. By law, in most states, employers must purchase workers’ compensation insurance policies covering their employees, and by doing so, they obtain immunity from personal injury lawsuits against them by their employees.
Workers’ comp is a form of no-fault insurance, meaning that it covers workers regardless of how their job-related injuries happened or who was at fault. This benefits workers because it insures them against their own errors. But it also comes with a trade-off: workers’ compensation generally covers only an injured employee’s medical expenses and lost wages-it does not pay for their pain and suffering.
That does not mean, however, that someone who gets hurt or sick on the job can never get pain and suffering damages. Often, the accident or incident leading to injury at work arises out of the wrongful actions of a third-party (someone other than an employer or co-worker_. In those cases, injured workers can often sue the at-fault third party for damages, including pain and suffering.
If you got hurt at work and received workers’ comp benefits, do not give up on the possibility of seeking financial compensation for your pain and suffering. Speak with an experienced personal injury lawyer who can advise you about whether you have a potential third-party claim.
To Get the Most Pain and Suffering, Hire an Experienced Personal Injury Lawyer
The pain and suffering you have endured are real, and you deserve financial compensation for it. If the party at fault for your injuries carries liability insurance, you likely have the right to demand payment not just for your out-of-pocket expenses and lost income, but also for your discomfort, anguish, and inconvenience.
But as we’ve explained, getting the most money possible for your pain and suffering isn’t easy. You need an experienced personal injury on your side-someone who has a demonstrated track record of achieving successful case results for clients like you.
Every insurance company you encounter after getting hurt in an accident will have a legal department working to limit your compensation. You need a lawyer whose skills, resources, and know-how will level the playing field.
To start obtaining financial compensation for your pain and suffering from an insurance company, contact an experienced personal injury lawyer in your area for a free, no-risk case consultation.