15/09/2022 by Feifel Gualazzi
How Insurance Companies Determine Pain and Suffering
If you’re injured in a car crash, motorcycle, ATV or snowmobile accident, you may be eligible for compensation. When you make a claim, it’ll be up to your insurance company, or the one representing the at-fault party, to calculate a dollar amount to compensate for your ordeal.
Insurance companies use many factors to determine a settlement amount. One is called “pain and suffering,” a nebulous term that can be interpreted in many ways. Here’s an overview.
What Is Pain and Suffering?
Pain and suffering is a difficult concept to quantify as a dollar amount. It’s non-pecuniary damage, which is different than, say, loss of income, wages or the cost of care, injuries whose dollar amounts can be clearly defined.
The concept of “pain and suffering” encompasses all physical, emotional and mental pain from an accident resulting in injuries. Damages may include:
- Physical pain
- Mental anguish
- Emotional distress
- Fear and worry
- Loss of enjoyment of life
- Impairment of family, marital and social relationships
- Post-traumatic stress disorder (PTSD)
- Lack of energy
- Mood swings
- Loss of appetite
Pain and suffering compensation provides financial assistance to the injured person to make their injuries more bearable. It’s intended to compensate for the victim’s negative experiences – and those that may still arise – due to the accident.
Unfortunately, putting a price tag on suffering is a subjective determination, and every case differs. There’s no “pain and suffering calculator,” so no settlement will ever make the injury and its effects disappear. However, recognizing pain and suffering as a real loss can help you fight for financial support to help you and your family as you recover.
Pain and Suffering Factors for Insurance Companies
Getting an insurance company to pay more for pain and suffering than the amount set by the statutory deductible can be a challenge. The company may require you to prove a lasting, serious injury. Insurance companies may offer higher compensation for life-altering injuries if the claim is likely to go to court.
It may be possible for you to increase your compensation if you file against multiple liable parties. In the case of a motor vehicle accident, for example, you might file claims against the at-fault individual, their insurance company and possibly the vehicle manufacturer. But all those claims put an increased burden on you as the injured party.
You may feel tempted to accept the insurance company’s offer. The truth is that many victims are entitled to much more compensation than insurance companies initially propose.
Be aware that the amounts awarded for pain and suffering in Canada aren’t as high as such awards tend to be in the United States. In 1978, the Supreme Court of Canada set a cap of $100,000 for pain and suffering. Ontario courts apply the cap but adjust it for inflation, which in 2022 is just over $400,000.
Specific Documentation for Proving Pain and Suffering in Court
When the victim and the insurance company disagree on a settlement amount, the onus of proving pain and suffering is on the victim, which isn’t a fair fight. Insurance companies have dedicated legal teams, while victims are often unfamiliar with complex accident benefits legislation and regulations. Having a personal injury lawyer acting on your behalf gives you a fighting chance.
There are ways to prove pain and suffering. Courts will consider specific documentation when setting award amounts, such as:
- Proof that you received support from a mental health professional to establish the cognitive and emotional effects the accident’s had on you
- Medical records demonstrating physical injury pain, including doctor’s notes, X-rays, MRIs and other imaging tests
- Photographs showing the progression of the injury
- Written notes in a pain journal documenting daily pain, feelings, experiences and medical appointments
- Testimony from friends and family on your behalf, stating how the accident has affected your life
It’s the court’s duty to set awards based on the victim’s accident-related costs, past and future, and the distress of being injured.
Call A Personal Injury Lawyer in Sault Ste. Marie
The lawyers at Feifel Gualazzi Personal Injury Law Firm will help you handle your insurance claim. And if the insurance company is being unreasonable, we’re ready to take your case to court. You don’t pay a dime until you get a settlement or win your case in court. We’re located in Sault Ste. Marie and serve clients in the District of Algoma and the surrounding areas of northern Ontario.
Not sure if you have a case? Contact us today to schedule a free consultation.