If the pain from your client’s injury is not constant, does that mean those times when the pain is not present don’t count for purposes of assessing damages? Absolutely not! You also have to look at all of the sacrifices made to get a break from the pain. People avoid doing strenuous activities or do them differently to create those spaces where they can get some relief. Regulating activities that trigger pain is a form of pain management. A good way to capture that part of the loss is to frame the injury as one that has taken his/her freedom to live life without having to make all of those forced choices to do or not to do, knowing pain is always looming. The bold phrases can be worked into the following truthful narrative:
Before this injury was thrust into his life unnaturally, Mr. Jones was able to do more strenuous activities without having to suffer through painful flare-ups. For example, he could: twist to look over his shoulder (to change lanes in traffic); lift heavier items (a filled briefcase or boxes); reach out (to pick up his kids); reach over his head (to get things from the top shelf); do repetitive movements (raking the yard); exercise freely (going for long walks at a brisk pace). He could hop out of bed quickly and brush his teeth without risk of causing a crick in his neck.
He used to “do” without having to think about it. He can still do most of those things; the difference is he now knows there is a good chance they will land him on a heating pad or with an extended period of activated pain. The freedom to “do” without having to worry about the fallout has been taken from him. It wears away at the quality of life in small increments that add up to a lot over a lifetime.
In the early stages of this new pain cycle, he would just “do” and suffer. As he has gotten deeper into the pain cycle, he finds himself doing less and less. His mind has learned what’s coming and naturally tries to steer clear of those things that cause pain. It’s the same process where kids learn not to touch a hot stove. The learned behavior that doing certain activities will result in bouts of pain has been called the “looming effect” because pain is always looming. It impacts the natural choice process.
People learn to avoid activities that cause pain. It is part of the fight or flight survival instinct. In its natural state, those triggers are few and far between. This kind of injury changes all of that because routine activities that were not triggers before are now hair-triggers and they’re everywhere.
I’m not suggesting Mr. Jones has stopped doing all of those things that act as pain triggers. Rather, he has to go through a decision-making process of “is it worth it?” before he can override the avoidance reaction that has been hardwired as a result of this injury. It has taken away his freedom to do many activities of his daily life without having to make all those mini choices to do or not do. As a result, he does much less.
The net effect of this injury is it intrudes, one way or the other, most of the time. He is either in pain from doing, or he is not doing because of the threat doing will cause a flare up. Taking a freedom doesn’t only matter when the person tries to exercise it. The loss is just as profound when that person doesn’t try because they have learned there is a barrier to free exercise of those freedoms. Freedoms aren’t supposed to be hit or miss. When they are gone, the loss is a profound presence in that person’s life.