How Can I Prove My Pain and Suffering?

How Can I Prove My Pain and Suffering?

Before you sustain injuries in a car accident, you have only a vague idea of what a settlement involves. People talk about how much money they received for their injuries, but they don't usually talk about why.

It’s no big secret. Pain and suffering are significant elements of many personal injury settlements. As an injured person, you are the only person who understands how they directly affect your life. It makes sense that the burden of proving your pain and suffering rests largely on your shoulders.

The Elements of a Settlement or Award

The insurers, attorneys, judges, and juries who negotiate or award injury compensation examine the same categories of damages. Unfortunately, they often arrive at vastly different proposed settlement amounts. That’s the primary reason why claim negotiations stall.

Settlement talks often become an examination and reexamination of these damages.

  • Out-of-pocket costs: Depending on your jurisdiction, claim departments, attorneys, and courts call them non-economic or special damages. These include medical and wage losses you incur while recovering from your injuries.
  • General damages: These damages consider how your injuries change your life and lifestyle during treatment and recovery. They also demonstrate how your injuries still affect you. This often-disputed damage category includes pain and suffering. Everyone looks for proof of your pain and suffering. You provide this by documenting your post-accident life and lifestyle.

Documenting Your Pain and Suffering

Two people who have the same injury endure different impairments and have different limitations. No two injured people experience pain and suffering in the same way. As you heal from your injuries, you notice how personal your injuries are to you.

Your age, physical condition, health, and other factors often influence how you heal and work through your recovery. You are the only person with a point of view that lets you explain your pain and suffering in a way that others understand.

Write It Down

By the time you discuss your settlement or give a deposition, you will have lost touch with your early post-accident experiences. As time passes, you remember that you had pain, suffering, and emotional distress, but you don’t necessarily remember the intensity. You remember that the pain prevented you from interacting with your family. You forget that you couldn’t dance at your cousin’s wedding or carry the holiday turkey.

To accurately document your pain, you must pay attention to what’s going on with your body and your life. Document each day as though you’re writing in a journal.

Track your issues beginning on Day one.

If you can’t write about them immediately, describe them as soon as possible.

  • The pain and suffering you experience immediately after your accident
  • Pain during ER treatment, surgery, examinations, therapy, etc.
  • How pain restricts your daily activities and job duties
  • Your pain intensity and frequency
  • Family events you can’t share
  • Household tasks you need (possibly paid) others to do
  • Pain management problems
  • Pain on the job, while relaxing, during recreation
  • How pain disrupted spousal intimacy and parental responsibilities
  • Whatever you think is important in helping others understand your pain.

Insurance Investigators Are Watching You

If pain and suffering prevent you from getting back into your pre-accident routine, don’t try to work through it. It’s not just about following your doctor’s advice, so you get better. Whatever you do or say, you must consider that an insurance investigator is sometimes watching you.

Insurance companies don’t simply accept your documentation and wait to hear from you. They want first-hand proof of your impairments, even if you have legal representation. If you’re still recovering months or years after your accident, they confirm your condition no matter what it takes.

Activities Checks

You’ve probably heard stories about investigators sitting in front of an injured person’s house. Those stories are true. When an insurer wants to know more about you, a staff claim representative or an independent investigator finds out whatever they can.

They conduct activities checks, which often involve clandestine tasks.

  • Sitting in front of your home and watching as you come and go
  • Videotaping you just in case you do something that doesn’t match your claimed injuries and impairments
  • Walking through your neighborhood and asking your neighbors questions about you and your injuries

Social Media Investigations

Pew Research Center’s most recent social media use report confirms that most adults use social media. Sites like Facebook, TikTok, and Instagram provide platforms where people share scenes from their private lives. Claim investigators find social media habits helpful in evaluating injury claims.

Despite genuine pain and suffering, some injured people post information they shouldn't share. Posted photos and videos of dancing, exercising, cheering, and interacting with friends often make them appear healthy, pain-free, and not as seriously injured as they say.

If you enjoy social media, you don't have to give up your online life. Until you resolve your injury claim, consider changing your posting habits.

  • If your claim involves pain and suffering, don't post anything that conveys otherwise.
  • Don’t talk about your activities or post photos or videos of anything you do.
  • Be careful how you phrase your comments or replies to other people’s posts.
  • Don’t accept friend requests from people you don’t know.
  • Tighten your privacy settings to prevent strangers from seeing your activities.
  • If you join an online group, understand that you can’t control who sees what you post.

Credit Checks

You might never know when a liability insurer does a soft pull of your credit history. If they do, they usually use the information for evaluating your financial status. If you’re behind on your bills, they recognize your financial situation as a low-ball settlement opportunity. Credit reports also show your employment status. That’s important when an insurer wants to know if you’re temporarily or permanently disabled.

Follow Your Doctor’s Orders

When you don’t do what your doctor tells you to do, your behavior doesn’t support what you say about pain and suffering. If you’re not keeping your appointments, filling your pain medication prescriptions, resting, or going to physical therapy, your actions tell a different story about your recovery.

If you have a history of ignoring your doctor’s orders, insurance representatives, juries, and judges reasonably assume that you’re not in as much pain as you say.

Do You Need An Attorney To Handle Your Injury Claim?

When you sustain injuries in an accident, personal injury attorneys protect your legal rights. You must still supply first-hand information that helps your attorney prove your pain and suffering.

Your documentation provides critical injury information that’s not available in a doctor’s report. Attorneys use your daily narratives when evaluating your claim, negotiating your settlement, or presenting your case during Alternative Dispute Resolution or trial.

When you schedule a free consultation, a legal representative listens to your story and answers your questions. When you’re ready, you decide whether you pursue a claim or file a lawsuit.

William B. Kilduff


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