Many people have asked the question: how can an insurance company put a value on pain and suffering after an accident and injury claim? The first step in the process is presenting a claim to the person that caused your injuries insurance company. To do this you or your personal injury attorney will bring a third-party claim against the negligent party and tangentially their insurance company, this gets the ball rolling. Perhaps most importantly, to actually get compensations, you’ll need to establish that the negligent party is actually liable for your losses as well as provide evidence associated with your injuries and damages. As long as you are able to establish liability on the part of the defendant (negligent party), the insurance company will evaluate your claim and determine if they will compensate you for damages. Such compensations could include property damage, medical bills, lost wages and future lost income, pain and suffering, future medical care, emotional damages, loss of consortium among other claims for damage. Providing evidence for tangible items lost in a personal injury case is usually simple, it is not hard to show that your car has been damaged or you broke your iPhone, and there can be an easily agreed upon value for those pieces of property. However, things get much more complicated when you’re trying to recover damages for less visible damages like pain and suffering.
In evaluating a personal injury claim the insurance company is always incentivized to diminish your pain, the reason is simple, the less they pay you the better their bottom line. A third-party insurance company, even if its the same company you may have for something like auto insurance, has no duty to you – in fact they take an adversarial approach. They want to run your facts through their computer systems, such as colossus, to minimize the value of your claim. For these reasons you should strongly consider retaining a personal injury lawyer to help you get you maximum compensation for damages. An experienced personal injury attorney understands the insurance companies tricks and will fight on your side to get you the most money for your injuries because your interests are 100% aligned.
WHAT IS PAIN AND SUFFERING
While you can possibly point to a scar or wounds as evidence of physical injuries, pain and suffering encompasses not just your physical injuries, but emotional and psychological wounds you may sustain as a result of an accident. Examples of what could be legally seen as “pain and suffering” include fear, insomnia, depression, emotional distress and most importantly the loss of enjoyment of life. Pain and suffering from a plaintiff’s perspective is not simple the loss of doing something, it often times means the cost that you pay for the doing and/or the adjustments you must make in the doing that add up to a large toll over your lifetime. Think of it as when your child asks you to throw them in the air, pre-injury it was no problem, but post accident you know that you will be in a lot of pain after you make them smile – do you do it or not? These types of considerations about your activities of daily life were not their prior to the accident, but now you are left to deal with them for an indeterminate amount of time. The insurance companies do not want to consider these types of damages, it is the job of a skilled personal injury attorney to make them.
There is really no fixed magical method to determine the intensity of your “pain and suffering”. This could bring problems, as there might be a little debate as to what you would get for nonphysical damage claims.
Even though there’s no hard and fast rule for calculating the value of pain and suffering claims, there are two methods that are commonly used when valuing pain and suffering. The first method usually involves multiplying the value of your actual damages like medical bills or lost wages with a number, generally between 1 and 3 times depending on the severity of the injury – this is the preferred method of many insurance companies. They often present low-ball offers in hopes of the plaintiff simply accepting an un-just result and moving on with their lives.
The second method is the per day or per year method, called per diem or per annum in legalese. In this method, a personal injury attorney considers a range of factors and assign a monetary value to be awarded per day and/or per year of your suffering until you achieve maximum recovery. This method takes into account the average life expectancy multiplied by an amount to come up with the amount of your damages over your lifetime. For example, if you were to lose the ability to get promoted at your job as a result of your injuries which cost you $10,000.00 per year, multiplied by the average life span of the individual, will give you the claim for future lost income. This method can provide some enormous and more accurate damages for a jury to consider when determining the amount to compensate you for your pain and suffering damages over your lifetime.
HOW DO INSURANCE COMPANIES CALCULATE PAIN AND SUFFERING DAMAGES
Insurance companies are under no obligation to value your pain and suffering fairly, and in fact they are more than happy to undervalue your claim. They will often plug information into an insurance industry standard computer program which will then spit out an amount that it feels is appropriate – then they will offer a fraction of that amount to begin negotiations. A computer program is useful in valuing ascertainable items like a car bumper, but lacks human insight to value the inability to play with your kids after an accident. It simply cannot factor in the human element and cost that are taken in every single personal injury claim.
Insurance companies are notorious for diminishing the value of pain and suffering. They do this in every single personal injury claim because the money saving to the company over a long period of time can be worth millions and millions of dollars. They will look at the medical treatment, pointing to any missed appointments as ‘gaps in treatment’ regardless of the reason for missing the appointments. Insurance companies will also take into consideration the duration of treatment. If the plaintiff’s unique case required a longer treatment duration, it’s usually an indicator of more serious injuries requiring more value in compensation. If you treat consistently over a long period of time, well they will often assert that your over-treated because you wanted to build up your claim. If your MRI comes back with a positive finding they will say it is likely due to your age, even if your neck or back were never bothering you pre-accident. Treated with a chiropractor, they will diminish the value of your claim because they believe that to be ‘soft tissue’ injuries only. The insurance company will try to get you coming or going, they will use the tried and true method of delay, deny, and defend to wear you down over time so that you settle for a fraction of what your personal injury claim is worth. The reason is simple – the less they pay you, the more money on their bottom line.
But since the insurance company has the leeway of using their own methods, you can guess whether they will provide you with a fair value for your pain, suffering and damages. The bottom line is that insurance companies like State Farm, Progressive, Geico, All State are incentivized to provide you with a low value for your injury claim.
HOW DO YOU KNOW WHAT’S FAIR
Proving you experienced pain and suffering as a result of an accident is hard enough, but knowing what’s fair in something that cannot exactly be calibrated could even be much harder. Fairness in the eyes of the insurance company, who created the program and the variable inputs, will look very different than fairness in the eyes of the injured party.
Computer programs are robot like, if they cannot see the pain and suffering of not being the same person you were pre-accident, then how can they fairly value your injuries? They simply cannot. The valuation methods detailed above can provide you with some guidance as to how to value pain and suffering, but there is a great deal of art involved. A skilled personal injury lawyer can put together a detailed demand packet that can be used as a trial guide if the insurance company undervalues your claim.
Dealing with an insurance company after an accident who is pressuring you to settle your case prematurely is something that many claimants have to deal with. The experience can be almost as terrible as the accident itself. Retaining a personal injury lawyer is most times your very best option after being injured in an accident. A CNN study indicated that personal injury claimants with an attorney generally receive 40% more compensation for their personal injury claim than those without. They will act as a shield from the insurance company, taking over communication and dealing with the claims adjuster. They will also act as a sword when presenting your claim, detailing your pain, suffering and damages in every effort to get you maximum value settlement or verdict at trial.