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12 what is pain and suffering and how do you prove it

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Pain and suffering are often the most difficult aspects of a personal injury case to prove. There are some ways you can help your attorney calculate your pain and suffering, and prove its existence to a jury. Here are just a few ways: Record the day-to-day events of your convalescence and recovery in a daily diary. Record the day-to-day events of your convalescence and recovery in a daily diary. You want to show the full impact your injury has had on your ability to enjoy and live your life. Did you used to regularly participate in a sport or some other type of physical recreational activity? The lost ability to perform these activities can negatively impact both your emotional and physical health.

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12 what is pain and suffering and how do you prove it

  1. 1. ng yi if st PAIN AND Te MS T OU PTO AB YM RS THE O © James Publishing
  2. 2. 1 Symptoms are how you feel No one knows how you feel better than you. You know where you hurt and when you hurt. You know when you get short of breath or dizzy or fatigued. So it’s up to you to describe those symptoms to the judge in as much detail and as vividly as possible. After all, it’s these symptoms that keep you from working. It’s not because you have some particular disease like arthritis or a heart condition. You cannot work because of how you feel.
  3. 3. 2 If the judge asks, “Why can’t you work?” Lots of people with the same impairment that you have can and do work. So telling the judge the name of your health problem really tells the judge nothing. “Don’t say, “It’s because I have arthritis/heart disease/diabetes or whatever your diagnosis is.” What the judge needs to know is the severity of your pain and other symptoms.
  4. 4. 3 Be Specific Don’t just say, “It hurts.” Describe what your symptoms feel like, the same way you have probably described your symptoms to members of your family. ––Describe the nature, intensity, and location of pain. ––Explain whether it travels to different parts of your body ––How often you have pain and how long it lasts. ––Explain if you feel different from day to day. ––Explain what starts up your pain or other symptoms ––What makes your symptoms worse, and what helps relieve them.
  5. 5. 4 Don’t Exaggerate Describe your symptoms to the judge the very best you can. Be precise and truthful. But don’t exaggerate. If you testify about constant excruciating pain but your medical records don’t back up what you say, the judge will not believe you. The judge is also going to wonder how you made it to the hearing if your pain is so bad. Be careful when you use words such as “extreme” or “excruciating” to describe pain; and don’t say that you “always” or “constantly” hurt or that you “never” get any relief from pain if what you mean is something less.
  6. 6. 5 But don’t minimize If you minimize your symptoms by saying they’re not so bad (and a lot of people do), the judge is not going to find you disabled because you will convince the judge that you have few limitations. This is not the time to be brave.
  7. 7. 6 Describing the frequency of your symptoms If your symptoms come and go, be prepared to explain how often this happens. Some people don’t give enough information, especially when the frequency of symptoms varies a lot.
  8. 8. 7 AVOID “sometimes” “occasionally” “once in a while” If you use these words, the judge won’t know if you have the problem once a day, once a week, or once a year. The judge could conclude that your symptoms occur only a few times per year, which is not enough to be disabling. When the frequency of symptoms varies greatly, a lot of explanation and examples are necessary. For example, tell how often symptoms occur in a usual week. If you have weeks with no symptoms, estimate how many weeks out of a month or year are like that. The more information you give about how often you have symptoms, the better understanding the judge will have about why your symptoms keep you from working.
  9. 9. 8 Describing the duration of your symptoms Sometimes For symptoms that come and go, be prepared to explain how long they last. Try to explain this without using the word “sometimes.” Instead, try to estimate how long your symptoms usually last, then estimate how often the symptoms last longer and how often the symptoms are shorter.
  10. 10. 9 Describing the intensity 1 of your symptoms 10 You may be asked if your pain and other symptoms vary in intensity. If so, do your best to describe how your pain and other symptoms vary in intensity during a usual day or over a usual week. Often it is best to use the 1 to 10 scale sometimes used by therapists and doctors. On this scale, 1 is essentially no pain and 10 is the worst pain you’ve ever had. Be sure you understand this scale and use it correctly without exaggerating.
  11. 11. 10 What a “10” means Think about the worst pain you ever had. Did it cause you to go to the emergency room? Did you lie in your bed writhing in pain, finding it difficult to get up even to go to the bathroom? Did it cause you to roll up into a fetal position? These are the images that the judge will have about what it means to have pain at a 10 level. Some people with disability claims have pain that gets to this level once in a while. Most do not. People who testify that their pain is frequently at the 10 level do not understand the scale. Most judges will conclude that someone who testifies during a hearing that his or her pain is at a 10 level during a hearing is not to be believed—because judges think there is no way a person could be at a hearing with pain that bad.
  12. 12. To recap ◊ on’t answer with your diagnosis when the D judge asks why you can’t work. ◊ hen the judge asks about your pain and W symptoms –– Be specific and describe them they way you would to family and friends. –– Don’t exaggerate or minimize. –– When describing how often you experience them, don’t say “sometimes” or “occasionally” or “once in a while.” Answer in terms of times per day, or days per week or per month. –– Use a 10 point scale to describe the intensity of your pain. But understand that “10” means the worst pain imaginable, which is rare.

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