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Five Things To Know About Proving Chronic Pain In Personal Injury Cases

Kelly + Singh Lawyers LLP > Personal Injury  > Five Things To Know About Proving Chronic Pain In Personal Injury Cases

Five Things To Know About Proving Chronic Pain In Personal Injury Cases

Chronic Pain

1) Chronic Pain Is A Long Term Pain Disorder That Can Arise After A Car Accident Or Personal Injury

In many cases involving personal injury – whether it be a motor vehicle accident, a work accident or an insurance claim – the diagnosis of chronic pain syndrome or fibromyalgia may come up.  Generally, we are talking about an individual who suffers significant and disabling pain, yet the test reports (MRIs, CT scans etc.) don’t reveal a cause for the pain. While chronic pain syndrome typically refers to a localized pain in particular areas of the body, such as one’s neck, back or shoulders, for an extended period of time – usually a benchmark of about six months, fibromyalgia typically refers to widespread pain throughout the body for a similarly extended period of time.

Particularly in cases of “whiplash” or “soft tissue” injury (an injury where the muscles and ligaments that can be stretched, torn and inflamed), people often go on to suffer permanent difficulty with pain for many years. While a car accident or personal injury can often result in a chronic pain syndrome or fibromyalgia diagnosis, these pain syndromes can also be linked to a variety of medical conditions, like arthritis. In essence, any part of the body that becomes a source of pain for any reason, can result in a diagnosis in one of these conditions, if it persists.

2) Chronic Pain In Personal Injury Cases Is Often Attacked As Being Faked or Exaggerated By The Accident Victim

Chronic pain syndrome and fibromyalgia, because of the complicated root causes, are often treated as similar to psychological conditions when it comes to compensation in law. As far as diagnostic tests go, the current reality is that our technology is limited in terms of what tests can or cannot detect.  These limitations often lead insurance doctors to deny the legitimacy of an injury because they can’t identify it on “objective testing”.  They may use faulty logic in asserting that because “most” soft tissue injuries resolve within a few months, it is not possible that a person’s pain is related to the accident or injury, or worse accuse the accident victim of feigning or exaggerating their psychological response to an injury.

3) Canada’s Top Court Has Recognized The Unique Plight of Chronic Pain Injury Claimants

The general consensus is that these conditions are not only real but also profoundly impact on the lives of the affected person and their families. These are myths that should long ago have been discarded before reaching the courtroom door, yet we still see them constantly in insurance medical reporting. Such views were endorsed as a reason to deny compensation for injuries that have no supportive objective findings by the Insurance Bureau of Canada as intervener in the recent Supreme Court of Canada ruling in Sadaati v. Moorhead.[1] In Sadaati the Supreme Court of Canada affirmed that psychological injuries stand on equal footing to physical injuries where compensation and the law are concerned, rejecting the Insurance Bureau of Canada’s submissions that the law should not compensate illnesses that are easily “feigned or exaggerated”[2] . Check out our blog on the groundbreaking Sadaati case.

The unfortunate reality remains that persons suffering from chronic pain syndrome face major hurdles in pursuing a case for reasonable compensation and often face attacks on their credibility and honesty. This makes the legal process in these types of cases far more stressful and protracted than it should be.  The Supreme Court of Canada recognized this reality several years ago in Martin v. Worker’s Compensation Board of Nova Scotia, in which the Honourable Justice Gonthier wrote on behalf of a unanimous Supreme Court bench:

… there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.[3]

4) Chronic Pain Claimants Need Expert Doctors And Lots Of Family Support

Because personal injury cases that involve pain disorders face these unique challenges, there are special considerations that should be taken into account in proving these types of claims. Credibility becomes a critical aspect of the injured person’s case. Honesty, consistency, and accuracy are essential. It is critical in these types of cases to ensure accident victims are receiving treatment from providers who have a reputable and comprehensive understanding of these types of pain disorders. Medical specialists who are familiar with the challenges that chronic pain poses, such as rheumatologists, and physiatrists with a special emphasis in their practice on pain disorders should be selected to provide an expert report for trial. Supporting evidence from family, friends and coworkers is also critical to a chronic pain case. It is usually the people you know, family, friends, co-workers, bosses – who have witnessed changes the accident and the disorder have caused – that will persuade a judge and jury about the impact of the disorder on the accident victim’s life.

5) A Deeper Medical Understanding Will Help In The Fight To Prove Chronic Pain Injury Claims In Court

Thankfully the WSIB long ago adopted a specific policy recognizing chronic pain as a real injury related disorder deserving of compensation.  There are also many court decisions that have acknowledged the reality of chronic pain disability arising from car accidents, although that has not stopped efforts by insurers to use the invisible nature of these injuries to persuade juries to award little or no compensation for deserving innocent victims. Let’s hope the tide will turn as advances in medical technology pave the way to a deeper understandings of these complex pain disorders.

 

 

[1] Saadati v. Moorhead, 2017 SCC 28, (S.C.C.), at para 21.

[2] Ibid., at para 21.

[3] Martin v. Worker’s Compensation Board of Nova Scotia, 2003 SCC 54, [2003] 2.S.C.R. 504, (S.C.C.), at para 1.

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