Chronic Pain – Proving the invisible injury in personal injury claims
Pain, long after its cause is gone is called “chronic pain.” The pain itself ranges between mild to unbearable, intermittent to continuous. It is a serious health condition which can manifest anywhere in the body and often leads to complications beyond physical symptoms. Many people suffer from depression, anxiety and sleep difficulties as a result of chronic pain. The symptomology has debilitating effects on those affected, making it difficult to keep up at work, manage household tasks, attend social gatherings and engage in recreational activities. This in turn can result in challenges in one’s mental health, relationships and finances.
The most common causes of this pain in the personal injury realm are car accidents, slip and fall, and trip and fall accidents. Admittedly, chronic pain is very real and a significantly disabling condition to many people. In the scope of personal injury law, claims can be challenging when it comes to successfully proving the injury, the extent of the injury and its short and long-term effects. It is an invisible injury not caught in positive imaging and the symptoms are therefore subjective. However, the facts remain undeniable; about 25% of the people with chronic pain will go on to have chronic pain syndrome and that chronic pain syndrome is hard to treat. The treatment process is often complicated and unique to each person, with many people requiring lifelong, costly treatment.
Although it is more difficult to prove chronic pain in personal injury cases, recent trends in case law display an increasing acceptance of this very disabling condition by courts and Tribunals in Ontario and generally across Canada. The Supreme Court of Canada, in its landmark decision of Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54 (CanLII), [2003] 2 SCR 504 acknowledged that “despite the lack of objective findings, there is no doubt that patients suffer and are in distress and that the disability they experience is real.”
Regardless, defence lawyers tend to downplay the injuries and struggles of the injured. This stems from pre-conceived notions that plaintiffs are “faking” or “malingering” in order to get money. To circumvent this, it is important that positive steps are taken to increase the chances of making a successful personal injury claim for chronic pain. Some of those steps include:
Consulting experts in the field of chronic pain syndrome to evaluate and assess those injured and testifying to the validity of the condition;
Following the treating doctors’ recommendations and consistently treating the condition to mitigate losses;
Gathering evidence on the impact of the accident and its co-relation to the injury;
Employing rehabilitation experts who can assess the injured person’s expected recovery process and estimating their losses i.e. in future earnings, pain and suffering, medical and rehabilitation expenses, attendant care and housekeeping needs, amongst others; and
Documenting the severity, frequency and effects of the pain immediately following or as soon as possible after the accident to maintain consistency.
Chronic pain cases can be challenging to prove. However, where the plaintiff is credible, where the medical-legal evidence is strong, chronic pain cases can result in significant awards for damages. At Singer Kwinter, we have helped many of our clients suffering from chronic pain get the compensation they deserve, with the firm boasting the highest award in Canada for chronic pain.
Sources:
https://www.mayoclinic.org/chronic-pain-medication-decisions/art-20360371
https://www.webmd.com/pain-management/chronic-pain-syndrome-overview#1
https://canlii.org/en/ca/scc/doc/2003/2003scc54/2003scc54.html
