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 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.

Clients diagnosed with fibromyalgia may also develop other conditions such as anxiety disorder, sleep disorder, irritable bowel syndrome, fatigue and/or depression. Psychological disorders are common among individuals suffering from chronic pain and fibromyalgia. Chronic pain sufferers often demonstrate a combination of symptoms including physical, psychiatric and psychological issues. It is important for the lawyer to explore the interaction of these three variables (as well as others) and how each contributes to the particular client’s overall diagnosis as a chronic pain or fibromyalgia sufferer. In chronic pain sufferers there needs to be a determination as to whether a particular psychological feature is in fact causative of the pain or whether it occurs as a consequence. The fact that psychological disorders are frequently encountered in association with chronic pain has not been adequately explained. Therefore, depending on the client, it may be cause, effect or both. As our understanding continues to grow, we have come to appreciate that the relationship is complex but trending more towards chronic pain leading to psychological disorders than psychological problems causing pain. However, there is a widely held belief that has not been refuted, that psychological difficulties may serve to exacerbate chronic pain. The determination of cause and effect with respect to these variables must be explored and reported by the medical experts in each case.

Doctors Best Qualified to Diagnose Chronic Pain and Fibromyalgia Disabilities

When searching for the right doctors to diagnose chronic pain and fibromyalgia, it is important to set up medical and medical/legal assessments with experts who are not only well-respected, but experienced and knowledgeable in the areas of chronic pain and fibromyalgia. As a result of the problems associated with the inability to demonstrate the conditions objectively, there are doctors who will dismiss chronic pain and fibromyalgia as not being “real” problems or conditions at all. If a lawyer is unsure about a particular doctor’s stance on chronic pain, he or she should consider speaking to the doctor prior to an appointment, or inquire with colleagues to determine if the doctor has provided them with useful reports on chronic pain clients in the past. Even a brief conversation with a doctor can provide a lawyer with a good sense of whether it would be useful for the client (and the case) to send the client to that doctor. In LTD cases involving pain-associated disorders such as chronic pain and fibromyalgia, lawyers should hesitate to immediately send their clients to orthopaedic surgeons for medical/legal reports. While their expertise in broken bone cases is invaluable, they will have to overcome the reality that objective findings can be elusive in chronic pain cases. It seems that in a chronic pain case, an orthopaedic surgeon is a doctor who the insurer would want the client to see for an assessment. Another reason to stay clear of orthopaedic surgeons in chronic pain cases is that they rarely treat chronic pain patients in their practice. Most orthopaedic surgeons refer chronic pain sufferers back to their family doctor or other specialists who treat chronic pain.

Clients suffering from chronic pain and/or fibromyalgia should be referred to physiatrists and/or rheumatologists. These types of doctors are best suited to diagnose, evaluate and report on these serious conditions. Their training is geared towards understanding these conditions and their opinions can go a long way to proving the severity of these otherwise ‘invisible’ conditions. A psychologist may assist in tying in the psychological aspect that exists as a result of the chronic pain. A vocational expert should be consulted for his or her opinion on the client’s future employability.

Successful Strategies for Communicating with Medical Experts

It is essential to provide the medical expert with any information which may help them formulate an opinion or diagnosis of a particular client’s disability. While historical medical data of the client may not be necessary to show how a particular accident affected the client, it will certainly give the doctor an important background into the circumstances of the client’s life. Just as a lawyer offering to review a potential case will require as much relevant information as possible in formulating an opinion, a doctor should be equipped with any relevant medical information pertaining to the client, including his or her medical history. No doctor will be able to draft a complete and detailed expert report without being provided with sufficient medical documentation prior to the assessment. The doctor may only spend an hour or two with the client (patient), so providing doctors with the tools to adequately prepare for assessments is vital. Above anything else, a lawyer must make it clear to any medical expert the purpose of the assessment and what the goal of the assessment is. In the third party insurer context, the question is often one of whether the client meets the verbal threshold for a permanent and serious impairment of an important bodily or psychological function. In LTD cases, the doctor should have a clear understanding of what he or she is to report on. Generally, the focus will be on whether the claimant is suffering from a disability and what the impact of that disability is on the claimant’s ability to work.

If a lawyer is sending a client to a vocational expert, the expert should certainly be provided with the client’s complete employment file, including a detailed job description and any other information regarding the work history. As in the case of the medical expert, the vocational expert must be advised of what he or she is to report on for the purpose of the assessment. This may depend on the wording of the particular LTD policy. This is especially important in chronic pain cases.

Duty to Mitigate?

While many LTD policies may be silent with respect to mitigation of damages, Canadian Courts generally impose a common law duty to mitigate for lawsuits involving a breach of contract or tort if the LTD policy is silent in that regard. That is, the aggrieved party must take all reasonable steps to mitigate the loss and cannot claim for avoidable loss. A plaintiff cannot sit back and allow his losses to accumulate and then expect to recover damages for losses he ought to have avoided.

Thus, in a breach of contract claim such as one involving an LTD policy, the damages for breach are reduced by the amount of the loss that should have been avoided if the plaintiff had taken reasonable steps to mitigate. The failure to mitigate is not a bar to recovery, it merely reduces the claim. In the LTD context, a Court may either fix a percentage and reduce the recovery by that percentage or it may rule that payment of benefits should have ceased at the time where the plaintiff was able to mitigate his loss.

The case of Martin v. Mutual of Omaha Ins. Co. presents a similar situation. Here a 46-year old woman labourer was unable to return to work on the production line due to pain and swelling in her legs. She was diagnosed as having soft tissue rheumatism, and she felt that all available treatment was doing her no good. All attempts at rehabilitation had failed, and the prognosis was poor. The Court found the insured to be entitled to continuation of payment of benefits. Although she had a duty to mitigate her damages, the likelihood of success in her rehabilitation was not high and her claim was not reduced by her failure to enter therapy.

A different result occurred in Flewelling v. Blue Cross Life Ins. Co. of Can. where the insured suffered from chronic fatigue syndrome and was found to have been totally disabled as of a certain date. The Court concluded that it was possible that if the claimant had taken the treatment suggested by her physicians, including a course of psychiatric treatment, she would have not become totally disabled. However, the insured did not seek out that form of treatment and allowed herself to be totally disabled. The Court was satisfied that she failed to mitigate her losses by not following the medical recommendations she received. The Court found that she would have been able to return to work approximately three months after her total disability date.

What about the claimant who delays in seeking out medical treatment? Courts have found that claimants who delay or wait years before seeking out medical help have failed to mitigate their damages. And if the claimant’s condition has worsened due to the delay, then the claimant may substantially have reduced his or her claim.

Litigating the Case

While it can be difficult to demonstrate that a client is suffering from chronic pain or fibromyalgia, another challenge is to convince a judge or jury that such pain-associated disorders are disabilities. Before a case goes to trial, the lawyers for both parties know not only the case but also the other side’s position on all the issues. The system is designed to prevent surprises. In the discovery phase, a lawyer will ask questions under oath of the adverse party. This form of oral testimony provides both the plaintiff and defendant with the clearest view of anticipated trial evidence. The views of the deponents become “locked down” and difficult to alter later during trial. Keep in mind that the defence will attempt to use the examination to undermine your client’s credibility by obtaining admissions, which are contrary to your case or commit your client’s evidence so that it can later be contradicted through expert opinions or surveillance. It is vital to any case that the client is fully prepared for the discovery process. A preparation meeting that includes a practice session will give the client an opportunity to experience a simulation of what the actual discovery will be like.

As any case progresses, it is a good strategy for lawyers to develop a theme. The theme is the word or phrase that constantly reappears in the litigation to focus the jury’s attention upon what the case is really about. Possessing a developed theme will not only help a lawyer prepare for trial, but will provide him with a concise overview of the case that can be utilized and referred to at a mediation or pre-trial. Selecting one or more themes is of crucial importance. Themes are like magnets, which constantly attract notice. They must be designed to trigger both rational and emotional responses in jurors. In formulating trial themes, lawyers should focus upon facts, which may be expressed using high impact language, and illustrated by high quality demonstrative evidence. Themes that emphasize “employability” issues would obviously be useful in LTD cases where the burden on plaintiff lawyers is to prove that their client has a disability.

Updated Recent Ontario Case Law

(Below are some brief outlines of recent decisions involving chronic pain and fibromyalgia)

1) Halbot v. Little [2003] O.J. No. 5514

* In this case, the Plaintiff’s credibility was key, and helped the judge reach his decision in light of conflicting evidence from Plaintiff medical experts and defence medical experts.

2) Place v. Ali (2007 CarswellOnt 4134)

Borkovich J. stated:

“With respect to the plaintiff’s physical injuries, I find soft tissue injuries to her neck, shoulder, low back and hip are chronic and permanent. With respect to the psychological injuries, I find that as a result of her other physical injuries she suffered a major depressive illness. Given the chronic physical pain she suffers from, she has become more prone to a re-occurrence of the depressive mental illness.”

3. Abel v. Hamelin 2007 (CarswellOnt 3108)

4. Garratt v. Orillia Power Distribution Corp. (2006 CarswellOnt 2328)


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