Do you need a lawyer for chronic pain following an injury in a car accident, slip and fall, or other event?

Chronic pain injuries, such as injuries to soft tissues, can be difficult to detect by X-ray or MRI. This makes them hard to diagnose and treat, but also quite hard to litigate. Even the definition of chronic pain can be in dispute:

Chronic pain is defined as pain that has lasted longer than three to six months, though some theorists and researchers have placed the transition from acute to chronic pain at 12 months. Others apply acute to pain that lasts less than 30 days, chronic to pain of more than six months duration, and subacute to pain that lasts from one to six months. A popular alternative definition of chronic pain, involving no arbitrarily fixed duration, is “pain that extends beyond the expected period of healing”.

Toronto lawyer Albert Conforzi discusses the complexities of chronic pain cases in this interview with Rod West from 97.7 FM in Collingwood:RW: So today we’re going to be discussing the issues involved in chronic pain cases and what victims of chronic pain can do to get help. Well let’s start off with a definition. What is the definition of chronic pain?

AC: Chronic pain is pain that doesn’t go away. Typically, in the types of cases that we deal with, it’s pain that lasts longer than six months and has no real sign of letting up, quite simply.

RW: Okay. But in the article about chronic pain I was reading here, you say that the greatest challenge is that chronic pain cases come under the label of subjective complaint. How would you define that? Subjective?

AC: Well subjective is, again, quite simply when someone says, “I hurt.”

RW: Right.

Subjective complaints

AC: And the question is whether or not you believe them or you don’t believe them. And typically in the work that I do, we’re dealing with situations where insurance companies, for the most part, are the ones that are saying we don’t believe that you’re in pain. And you turn around as a victim and say, “But I am in pain.” So how do you resolve that kind of a dispute? That becomes the issue for chronic pain cases. Those typically then go on to deal with issues of credibility and whether or not you can be believed because chronic pain cases don’t have objective findings. When you have a broken bone, you can get an x-ray. You know that it’s objective because you can see it on the x-ray. When you have pain arising from a soft tissue injury, for example, a whiplash in a motor vehicle case, those are things that don’t show up objectively on x-rays or CT scans or MRIs, so that as a result, someone is left to complain and the only basis for accepting that they do have pain is whether or not you believe them.RW: Okay, if there are no x-rays or MRI scans that can definitely prove that the person is suffering from chronic pain, how do you prove to insurance companies and judges that this person really is in pain?

Proving Chronic Pain

AC: I think the way that we typically go about doing it is by chronicling their changes in function post-accident. When someone has a good work history, for example, and they’ve worked at a factory job for example, something with a repetitive type of… Packaging job on an assembly line in a factory, for example. And then post-accident, they’re having difficulty functioning in a job that they did well beforehand. It may cost them income. It may cost them overtime. It may cost them job opportunities that typically and historically that they’ve taken advantage of in the past. That’s one of the ways that we look at changes in function. We also look at changes in function when an individual has things that they’ve enjoyed doing in their life. Perhaps a sport, perhaps a recreational activity that they’ve partaken in, but they’re unable to do that. So they report to their family doctor or they report to their physiotherapist that they’re having difficulties doing various things. We pull together the diverse threads of their life and we try to create the picture for the insurance company to look at as to the changes in their overall function.RW: So what changes, the rules of diagnosing chronic pain, do you think would help accident victims, if you change it a bit?

Diagnotic Tests For Chronic Pain

AC: Well, it would be wonderful if we could develop a diagnostic testing that could provide some objectivity. But I’m not sure that that is anywhere close on the horizon but at the same time, when I look back at my own career which spans about 30 years doing personal injury litigation, we’ve seen changes from x-rays, CT scans, MRIs, each one becoming more sophisticated. So I think that in the future, what I’m hoping will become more of the case is some type of objective testing perhaps in greater degrees of electromyography, EMG testing, which can help measure the ways in which current is travelling through different types of tissue to become testing that could be looked at by medical practitioners with a greater sense of objectivity as opposed to simply accepting someone’s complaints.RW: Someone’s word, yeah. Because the picture with the x-ray, there it is. You see the broken bone. It’s evidenced right there.AC: It’s easy.RW: But a pulled muscle or soft tissue damage, you can’t really take a snapshot at. You might see a dark spot, but that could be interpreted any way.

AC: Any number of ways, absolutely.

RW: And a doctor’s opinion can say or can be credible for so much, but not without actually having proof of, “Well, it hurts here.”

AC: That’s right. The doctor does the same thing as the insurance adjuster does. You go and you say it hurts. The doctor says, “Patient says it hurts.”

RW: Yeah. “Doctor, it hurts when I do this.” “So don’t do that.”

Working Through Chronic Pain

AC: You have to be able to take it one step further. But you know, when you think about someone who isn’t able to work because they’ve got pain, when they’ve spent their whole life working, when they’ve spent their whole life paying off their mortgage or paying their mortgage down, when they’ve spent their whole life planning for their kids to go to college or university and all of a sudden because of the pain, they stop working or they limit the amount of work that they do. And they go on disability or LTD, long-term disability benefits, and they get 66% of their income. What person in their right mind would accept 66% of their income when they’ve worked all their lives to create a good work history if they weren’t in pain? What person would see their kids not go to college when they’ve worked their whole life to be able to give their kids better opportunities?RW: Exactly.AC: These are the types of diverse threads that we try to pull together to create the image of what the person is really going through on a day-to-day way. Ultimately, if the insurance company representative was living with the victim, they might be able to see it on a day-to-day basis.RW: Right, but they’re not.

AC: But these people are doing their jobs at an insurance company, but they do it with a degree of scepticism of the veracity of the complaints that are being made.

RW: You mentioned in your article that a victim could actually be victimized a second time by people trying to diagnose their chronic pain. Does that mean they can get hurt the second time or how does that work?

Victimized A Second Time

AC: Well it’s really a case of the person endures the pain of the original injury. The further injury is more in the nature of the insult to their overall wellbeing caused by the scepticism that they’re being treated with. They’re being treated as though they’re lying. They’re being treated as though they’re trying to put one over on somebody.RW: Okay.AC: And that is the second type of injury that takes place and that can sometimes take a huge emotional toll on an individual.RW: Oh, big time, yes. Yeah.

AC: And as a result of that, that emotional toll can cause a person to spiral even further down the drain in terms of their overall function of life. And that’s I think what I mean when I’m talking about a second injury being put upon the person as a result of the way in which the system treats that person.

RW: Exactly. So if I come to you, I had a car accidents… Say I have whiplash, what is the best way to begin this process?

How To Begin The Process

08:47 AC: Well the best way to begin the process is by following your doctor’s advice first of all. You need to pay attention to what your body is telling you. You’ve been hurt. Your body is telling you that you’re in pain. So you need to find ways in which to respond to that call and that’s usually with forms of therapy. Now, the insurance system in Ontario has been modified as of September of 2010 to minimize the amount of therapy that you have access to. It’s somewhat counterintuitive because your body is telling you you need assistance, your doctors are telling you, you need assistance, but the source of funding for that kind of assistance has gone the other way. That is it’s been minimized down to a rather small amount. So at that point when the insurance company says, “No more funding,” the challenge is how do you get more assistance when you need it? And that’s usually going to be something that your legal representation is going to be able to help you with.RW: I understand.AC: That’s what we do.RW: If people have more questions to find out more, how can they contact you?

AC: They can contact us through our website They can call us on the telephone at 1-877-236-3060. And they can access legal representation through those avenues principally.

RW: Albert Conforzi, Pace Law Firm. Thanks for coming in today.

AC: Thanks very much.

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