For many years, plaintiffs suffering from chronic pain and/or fibromyalgia have been subject to ridicule by insurers as well as the Courts. Some of the skepticism towards such plaintiffs was alleviated by the Supreme Court of Canada’s decision in Martin v. Nova Scotia (Workers’ Compensation Board, The Court stated:
“There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real… 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.”
Personal injury lawyers for plaintiffs who suffer from chronic pain or fibromyalgia have been forced to develop and implement legal strategies to tackle the challenge of representing men and women who experience pain, often extreme pain, when the basis for their pain experience cannot be proven by an objective test such as an x-ray. Whether in the context of a lawsuit involving a third party insurer, or a long term disability (“LTD”) policy with a first party insurer, lawyers depend on the use of experts to assist in demonstrating that their client is suffering from a serious condition, or disability, that is impairing their ability to work and live their lives without constant pain. It is important for lawyers to understand the difference between strategies for proving disability in the LTD context from those cases involving third party insurers. In either context, choosing the best medical experts to evaluate the client and knowing how to use them to most effectively advance the client’s case are essential components of any personal injury law practice. Since every client is unique and because chronic pain and fibromyalgia are essentially subjective medical conditions, each case will require its own strategy based on the unique circumstances of the particular client. In order to provide their clients with superior legal representation, lawyers handling LTD cases must have a firm understanding of the definitions of both chronic pain and fibromyalgia, the knowledge of what it means to be suffering from these conditions and how to treat them, the ability to consult the medical experts best suited to evaluate and report on chronic pain and fibromyalgia and the skill and expertise to successfully represent their client suffering from chronic pain and/or fibromyalgia through the litigation.
The Difference between LTD and Third Party Insurer Cases
It is important to note that a significant difference exists between a lawsuit involving a third party insurer and an LTD case. Where the former involves an action arising out of a specific event such as a motor vehicle collision or a slip and fall accident, an LTD case is less focused on a “before and after” analysis. In non-LTD actions involving pain-associated disorders, lawyers litigating these cases must possess a complete picture of the plaintiff’s pre-accident history. Acontrast must be drawn between the plaintiff’s life prior to the accident and the significant changes that have occurred since the accident in areas such as physical and mental health, employment, recreational and social activities and personal relationships. For the lawyer to gain an understanding of what the plaintiff’s life was like prior to the accident, he or she must obtain and review the client’s pre-accident clinical notes and records from their family doctor(s) and the client’s decoded OHIP summary. In the non-LTD context, some of the most challenging cases to prove causation are those where the plaintiff already had a history of medical complaints prior to the accident giving rise to the lawsuit.
In LTD cases, a claimant’s medical history is much less of an issue, unless of course a policy is being denied due to misrepresentation(s) on the application for LTD benefits. In LTD cases, the issue is often whether or not the claimant meets the definition of “disability” in order to qualify for benefits under the policy. For lawyers, much time and Buy Neurontin energy can be saved because medical histories do not have to be extensively reviewed in preparation of Discovery, Mediation or Trial. In LTD cases, the emphasis for lawyers is on how, with the right evidence, one can prove that their client should qualify for benefits under the specific policy. The focus is more geared towards the present and future, with less of a concern for the past. This is why lawyers must know which medial experts are most suitable to provide evidence to demonstrate why their client is entitled to benefits under an LTD policy.
Understanding the Medical Terminology
Pain is defined by the International Association of the Study of Pain as “an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage” (Merskey and Bogduk 1994). Chronic pain is a serious health care problem in North America. Chronic pain is often associated with soft tissue musculoskeletal pain disorders such as whiplash, low back pain and repetitive strain injuries that have not and may never subside over a person’s life. Fibromyalgia can be thought of as a form of chronic pain. The majority of fibromyalgia sufferers are permanently injured and many never return to work. Most fibromyalgia sufferers are not able to enjoy the same quality of life as before they began suffering from the condition.
It has long been understood that chronic pain cannot be proven by objective evidence. Therefore, the evidence that has been relied upon by the Courts is subjective evidence, which is a combination of the plaintiffs’ verbal description of their pain and their doctors’ description of the pain. The inability to provide objective evidence to demonstrate chronic pain and fibromyalgia emphasizes the need to retain doctors experienced in diagnosing and treating these conditions to provide the reports for the clients. What distinguishes a condition like cancer from chronic soft tissue pain disorders is the ability to turn to radiographical structural abnormalities accounting for the pain. As technology continues to advance and the search for objective evidence of pain becomes more possible, the use of CAT scans and MRIs in advancing chronic pain cases may become more common. However, the usefulness of these diagnostic tests to prove chronic pain and fibromyalgia at this time is uncertain. Part of the problem is that when scanning the cervical and lumbosacral spine, CAT scans and MRIs frequently demonstrate structural abnormalities in asymptomatic individuals and yield normal results in symptomatic individuals.