How Do You Negotiate Pain and Suffering?

How Do You Negotiate Pain and Suffering?

There are many ways to measure the impact of an injury. It can be in the ever-growing pile of medical bills on your kitchen table, or the number of days you have been out of work. It can also be measured by the pain and suffering that you’ve endured. While yes, pain and suffering is not as easy to quantify, it can still be compensated in a personal injury claim.

Personal injury claims exist to recognize and address the toll an injury can take on someone. 

At Nicolet Law Accident & Injury Attorneys, we have seen how wide-ranging and exhausting that toll can be. It’s just one reason why we take the time to get to know our clients and learn more about how their injury has changed their lives. This is crucial for any lawyer-client relationship, as the more we know about your case, the better equipped we are to take on reluctant insurance adjusters.

Even if insurers start pain and suffering negotiations with an upper hand, compelling evidence can shift the balance. At Nicolet Law, we want to represent your story and pursue compensation for the suffering you have endured. 

What Is "Pain and Suffering"

If the story of your injury was only told through medical bills, it wouldn't come close to reflecting everything you have endured. Economic damages are often front and center in personal injury cases because they come with a definitive price tag. Pain and suffering, however, is a non-economic damage, which means that it does not have a set dollar value. 

Common examples of pain and suffering include: 

• Chronic pain 

• Emotional distress and mental health conditions (anxiety, PTSD, depression) 

• Loss of enjoyment of life 

• Loss of consortium (how your injury affects your marriage, relationship) 

• Disability 

One of the sobering realities about recovering from an injury is that “recovered” may not meet your expectations. You may be silently struggling while others tell you that you are lucky to have survived your accident. At Nicolet Law, we understand that the hardest battles won’t always be visible to those around you. It’s why we take supporting our clients so seriously.  

Why Is Pain and Suffering Hard to Prove

Insurance adjusters often look for any opportunity to dismiss any aspect of a claim, especially with pain and suffering. Emotional distress is a serious matter, but within the bounds of a personal injury case, it resides in a gray area. Insurers are often quick to question anything that falls into a gray area.

At Nicolet Law, we understand how demoralizing it can be to endure pain and then have anyone doubt it.  

Proving pain and suffering often takes sharp legal strategy and powerful evidence. At Nicolet Law, we have extensive experience helping our clients pursue compensation that measures up to what their injury has taken from them.  

Supporting Evidence For Negotiating Pain and Suffering

Detailed evidence that speaks to your pain and suffering is often harder for insurance adjusters to dismiss. The more there is, and the more specific it is, the better. This kind of proof can come in many forms, including:  

• A pain journal 

• Therapist's notes 

• Loved ones' testimonials 

• Multimedia evidence 

• Doctor’s notes 

• Medication receipts 

• Documentation of life changes 

All of these can play a part in showing what you have gone through. Let's go over each one individually. 

Pain Journal

We have previously talked about pain journals on our blog, if you are interested in learning more, click here. To put it simply, a pain journal is a personal, ongoing record of how your injury is affecting you. By writing down your daily experiences with your pain and suffering, you can track the 'what, where, when, and why' of your pain symptoms. While many can achieve a promising start with a pain journal, an experienced personal injury attorney can offer refinements to strengthen the entries. 

Therapist's Notes

Therapists are trained to help you define and express your emotions in a productive and healing way. Even if you are in touch with your emotions, having a licensed therapist provide their observations can validate your claims. Getting help from a mental health professional also shows that you are taking your recovery seriously.  

Statements from loved ones

Your pain is your own experience, but your loved ones can provide an outside perspective, noticing changes in your behavior, mood, or routine. 

Multimedia Evidence

You don’t need a fancy camera to get compelling footage of yourself coping with your injury. A steady smartphone camera and a well-lit room can work wonders. 

Doctor’s Notes 

Doctor visits are a valuable time to ask and answer questions about your physical and mental state. Recovery can be complicated, and getting your doctor’s notes on your initial and (if necessary) follow-up visits can provide a detailed timeline of your recovery. This timeline can help you track your symptoms, diagnosis, and how your treatment(s) may have changed over time.  

Medication receipts

These receipts can show that you have been following your doctor’s treatment plan. If there are any gaps in your medication schedule, it is important to address and document the reasons for said gaps.  

Documentation of life changes

Any way that your life has changed due to your injury, document it. Maybe your living space had to be modified, or you have had to modify or give up hobbies of yours for the time being. Take notes, pictures, or whatever you need to do to put it on record.  

Putting Pain and Suffering in a Demand Letter

A demand letter is a formal request for compensation sent to the insurance company. It outlines the basics of your accident, your request for compensation, and how long the insurance company has to respond. Here's a quick look at what is covered: 

The basics of the accident:

• How it happened: An objective description of the moments leading up to an injury 

• Who is at fault: An explanation of why someone else’s actions led to your injury 

The damages from the accident:

• What the damages are: Whether they are economic (medical bills, lost wages) or non-economic (pain and suffering). 

• The evidence for the damages: Medical records, receipts, photos, videos, anything that supports the damage claims. 

Deadline

Demand letter deadlines can vary based on a case’s circumstances. That deadline serves to put pressure on the insurance company, but the deadline itself is not legally binding. Let’s say you put the deadline at 30 days.

On the 31^st day, your lawyer may follow up with the insurer or may start preparing for a lawsuit. At Nicolet Law, we take the time to craft draft letters to show how our clients have been affected by their injury, physically and mentally. 

How State Laws Can Affect Your Demand Letter And Your Ability To Collect Pain and Suffering Compensation

There’s an aspect of demand letters that we want to address, but to do so, we’ll need to touch specifically on motor vehicle insurance rules surrounding economic damages. We know that’s a bit of a departure from the original topic for this blog. To put it simply: 
Whether you can seek compensation for pain and suffering after a car accident, and how it happens, depends on the state you live in. 

Motor vehicle accidents are notorious for their impact on Midwest families. Many families end up facing uncertainty and stress, and for some, even grief. For injuries caused by a motor vehicle accident, a no-fault or at-fault insurance rule can apply.

Nicolet Law serves clients in four states: Minnesota, Iowa, Wisconsin, and North Dakota. For injuries caused by a motor vehicle accident, a no-fault or at-fault insurance rule can apply. Wisconsin and Iowa follow at-fault insurance rules, while Minnesota and North Dakota follow no-fault insurance rules. Here’s what that means: 

At-fault States (Wisconsin & Iowa)

In at-fault states like Wisconsin and Iowa, the person who caused the car accident (and their insurance) is responsible for covering your losses. So your lawyer will usually send the demand letter to the other person’s insurance company, not your own. Your pain and suffering can be addressed immediately. 

No-Fault States (Minnesota & North Dakota)

If you live in no-fault states like Minnesota and North Dakota, your own insurance company steps in first. This coverage is commonly known as Personal Injury Protection (PIP).

In Minnesota, that coverage is $40,000 in total, with $20,000 set aside for medical expenses, and the other $20,000 for other economic damages like lost wages. While your insurance can provide coverage up to those amounts, you can also seek compensation through the at-fault driver’s insurance if:

• Your medical bills rise above $4,000 
• You are dealing with permanent disfigurement or injury 
• You are disabled for more than 60 days 
• The accident is fatal 

In the event of a death, surviving family members may have the option to pursue a wrongful death claim.  

In North Dakota, drivers are covered by PIP up to $30,000. This number is for any kind of economic loss. To seek compensation from the at-fault party’s insurance, one of these conditions must apply. 

• You experience a disability that lasts longer than 60 days. 
• Your medical expenses exceed $2,500 
• You suffer permanent disfigurement or impairment 

It bears repeating: These rules come into play only during motor vehicle accident claims.

Deadlines For Filing A Claim

Each state has a standard statute of limitations for personal injury cases, providing a cutoff for injured victims to seek compensation.

• Minnesota and North Dakota: 6 years from the date of the injury

• Wisconsin: 3 years from the date of the injury

• Iowa: 2 years from the date of the injury

That being said, those are only standard numbers, and there are exceptions. An experienced personal injury lawyer can inform you of whether your case is an exception. Reaching out to a lawyer soon rather than later is crucial, as evidence fades and memories do too. A generous statute of limitations may sound like a blessing, but the more you wait, the more it can compromise your case.  

The Lowball Settlement Offer

No matter how strong your demand letter may be, the initial offer from your insurance will likely be disappointing. This may be frustrating, but it's also unfortunately very common. Insurance companies are often focused on protecting their bottom line, and often try to downplay claims as much as they can.  

They may claim: 

• You are exaggerating your pain 

• You have a preexisting condition that is causing your pain 

• You don’t have enough documentation to support your claims of pain and suffering, or you neglected follow-up care 

Even if the offer is low, your financial anxiety might tempt you to accept it and sign the settlement agreement. Many have faced this temptation, but be warned: Many underestimate how quickly that initial settlement offer will run out.  

At Nicolet Law, we have extensive experience handling personal injury cases and are ready to help answer questions. We want injured Wisconsin residents to understand what their case can be worth and how insurers try to dismiss their claims. 

How Do Insurance Companies Calculate Pain & Suffering?

When personal injury damages don’t come with a simple price tag, here are two key methods that insurance companies often use. 

1. The multiplier method: 

Your economic damages are evaluated and then multiplied by a number based on how significantly your injury has affected your life. This number is typically between 1.5 and 5. 

2. The “per diem” method 

“Per diem” means per day. The average impact your injury has on your day is assigned a dollar amount. That amount is then multiplied by how many days you have been dealing with your pain and suffering. 

At Nicolet Law, we are ready to advocate for our clients and challenge the numbers the insurance company presents, and the reasoning behind them.  

Why Would I Want An Attorney During This Process? 

At Nicolet Law, we understand the impulse to self-represent. You are the one directly experiencing your pain. You are the one dealing with the immediate stress that comes after an accident. Reaching out to a lawyer can add stress to that too. 

At Nicolet Law, we want to address this because we want you to know that we understand your perspective. However, self-advocacy only goes so far. The insurance company handles many injury claims, but this is (hopefully) your first one. 

Here’s why reaching out to an attorney is beneficial: 

• An attorney’s job is to represent you and make a case for your best interests. 

• An attorney’s job is to handle the insurance company’s tactics. 

• An attorney’s job is to present your case in a compelling way before an audience that doesn’t want to compensate you 

Getting an attorney does not mean you will go to court. Most personal injury cases are settled. 

The insurance company wants to minimize payouts whenever possible. They spend the workweek downplaying claims. You shouldn’t be expected to handle them alone. 

Nicolet Law offers free consultations and operates on contingency, meaning that you can seek legal help no matter what your financial situation is.  

Frequently Asked Questions

So, if I already accepted my insurance company’s initial offer, can I still start a case? 

If you signed a settlement agreement, your case is more than likely finished. Know that you are far from the only person to encounter this situation.  

How much is my pain and suffering worth? 

There are a lot of factors in a personal injury case that can influence how much any of the damages are worth. Talking to a personal injury lawyer about the specifics of your case can give you a more in-depth idea.  

What should I be careful about with the insurance company? 

Never underestimate what an insurance company can do to try to undermine your claim. Even a simple “I’m sorry” in any context can be used against you. If you’re bedridden but upload a photo to social media of yourself smiling, the insurance company can twist the narrative about how bad your pain really is.  

If I can’t always make my medical appointments or I need extra time to get my prescriptions, will that impact my claim? 

If you have difficulty attending medical appointments or picking up your prescriptions, you should be ready to explain why. An experienced personal injury attorney can also help you elaborate on your answer.  

Dealing With Pain and Suffering? Reach Out To A Personal Injury Lawyer Today