Car accident pain and suffering has always been difficult to define. Wisconsin jury instructions state: Pain, suffering, disability, and disfigurement includes any physical pain, worry, distress, embarrassment, and humiliation which the plaintiff has suffered in the past and is reasonably certain to suffer in the future. To what extent the injuries have impaired and will impair his or her ability to enjoy the normal activities, pleasures, and benefits of life. Finally, consider the nature of plaintiff’s injuries, the effect produced by plaintiff’s injuries in the past, and the effect the injuries are reasonably certain to produce in the future bearing in mind plaintiff’s age, prior mental and physical condition, and the probable duration of his or her life.
Wisconsin courts recognize the existence of mental pain and suffering accompanying physical injury and presumed that such mental consequences follow from the physical injury itself. McCoy v. Milwaukee St. Ry., 88 Wis. 56 (1894). The mental pain and suffering that attends physical harm is a compensable element of damages whether the harm was intentionally or negligently inflicted. Vinicky v. Midland Mut. Cas. Ins. Co., 35 Wis. 2d 246 (1967).
Mental pain and suffering sustained in the absence of physical injury may also be compensable. Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250 (1998).
Proof of past and present pain and suffering does not require medical testimony but may be based on the plaintiff’s subjective testimony. Ballard v. Lumbermens Mut. Cas. Co., 33 Wis. 2d 601 (1967).
Proof of future pain and suffering does not require expert medical opinion if the injury is objective in nature. Bach v. Liberty Mut. Fire Ins. Co., 36 Wis. 2d 72 (1967). But when the injury is subjective, based on the injured person’s complaints only, expert testimony is essential to any recovery for future pain and suffering. Diemel v. Weirich, 264 Wis. 265 (1953).
We object to any insurance company psychological examination attempting to assess mental suffering, in the absence of a related specific diagnosis or treatment. The plaintiff should be able to testify or have others testify about her anxiety and feelings of depression as a result of a back injury preventing her from working or doing her hobbies. However, if she alleges an actual psychological diagnosis (or even meds or counseling prescribed by a PCP?) due to the collision, that would be an independent element of damages triggering a defense psychological IME.
McCormick Law Office in Milwaukee, Wisconsin attorneys get the best results for pain and suffering when there is objective proof of injury corroborated by circumstantial evidence and testimony of injury effects.
