Suffering is different than pain and the two are distinct general damages. Disability is a third distinct general damage. The Americans with Disabilities Act defines disability as a physical or mental impairment that substantially eliminates one or more major activity. 42 USC sec 12101-17 (1992). Recovery for disability compensates for the inability to lead a normal life. Kirk v. WSU, 109 Wn.2d 448, 461, 746 P.2d 285, 292 (1987

When we ask the jury for disability compensation we have a physician rate plaintiff under the AMA Guidelines for impairment. According to the AMA Guidelines a ratable disability results from an  impairment that impacts an activity of daily living (ADL). ADL’s include self care, communication, physical activity, travel, sexual function, and sleep.  Impairment in doing ADL’s  involves most of the waking hours.

When plaintiff’s physician testifies the injury results in a ratable impairment which effects ADL’s, the disability instruction must be given. Martin v. Foss Launch & Tug Co., 59 Wn.2d 302, 307, 367 P.2d 981, 984 (1962). In Washington, when  plaintiff’s physician testifies to plaintiff being partially disabled because of permanent back stiffness it is proper for the jury to decide disability. Id.

A permanent injury is seen when the impairment continues at the point of Maximum Medical Improvement (MMI). MMI occurs when the condition is unlikely to change in the next year.  Moreover, the jury can consider future disability damages when the physician testifies plaintiff more probably than not will have continuing medical problems. Martin v. Foss Launch & Tug Co., 59 Wn.2d 302, 307, 367 P.2d 981, 984 (1962).

To prove disability, in opening discuss the facts of the injury and how plaintiff’s physical limitations caused by the injury impact specific activities of daily living. During the case in chief lay witnesses testify to observations of plaintiff’s limitations. Ideally the witness is able to offer observations of plaintiff before the injury where plaintiff has no limitations. After the lay testimony follow with the MD who describes the injury, the impairment, and rates plaintiff pursuant to the AMA Guidelines.

In closing when discussing general damages take time to segregate disability. Discuss the lay and expert testimony going to disability. Reiterate the ADL limitations. Be fair in the separate disability ask. If the ask is a lump sum make sure the jury understands the disability component.

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