A Legal Perspective On Chronic Pain

By Albert Conforzi | January 7, 2013

Toronto Personal Injury Lawyer Albert Conforzi: The greatest challenge in the personal injury field regarding the resolution of chronic pain cases is that most of them fall under the heading of a subjective complaint. That is, the client is telling you about the pain they are experiencing, but there is no clear cut medical evidence – an X-ray or MRI scan, for instance – to objectively support the claim.

It is rare for there to be an “objective” topology for reported pain and limitation of function. In those rare cases where objective evidence is present, the resolution of compensation issues isn’t usually a problem.

The challenge in chronic pain cases stems, in large part, from the inherent skepticism of the insurance industry. Insurance personnel are institutionally-motivated and rewarded for their skepticism. Their primary focus is to limit claim amounts, as opposed to separating meritorious claims from frivolous ones.

We also have a legal system which is oriented to “cause and effect” questions. While chronic pain has been recognized at the highest court levels as a legitimate claim for damages, claimants face the hurdle that self reporting is the only way to know if they are suffering from chronic pain.

Insurance adjusters and insurers’ counsel pore over every word of
medical documentation for the slightest hint of skepticism about the
veracity of the complaint. The goal is to undermine the credibility the
claimant.

Despite significant advances in diagnostic technologies, it is presumptuous and naive to assume that diagnosis has achieved a level of certainty from which flows the legitimate conclusion that an absence of “objective” findings means that either the pain is not “real” or  is purely psychosomatic in origin.

Dry, “observational” language in recording self-reported symptoms for assessments and treatment recommendations can have a powerful impact on legal outcomes. While it is essential for assessors to maintain their professional integrity by objectively assessing and reporting on chronic pain scenarios, it is equally important for them to avoid relegating the self-report aspects of a case to “second class” evidentiary status.

Insurance adjusters and insurers’ counsel pore over every word of medical documentation for the slightest hint of skepticism about the veracity of the complaint. The goal is to undermine the credibility the claimant, thereby limiting their exposure or forcing a minimal settlement. A medical assessor, concerned primarily with the therapeutic welfare of the patient, might well be unaware that their words, if poorly chosen, can seriously impair the patient’s efforts for legitimate legal recovery.

Individuals experiencing chronic pain typically have been subjected to multiple diagnoses, various unsuccessful therapeutic interventions, and overt skepticism. They can understandably feel demoralized and frustrated. Nonetheless, unless there are clear reasons for discounting their self reported symptoms, it is essential that medical assessors be alert to the wider implications of their reports so as to avoid victimizing the chronic pain victim a second time.

Albert Conforzi is a personal injury lawyer in Toronto. He has been fighting for accident victims’ rights for over 30 years.