For more than 41 years, all of our personal injury clients have had one thing in common. When they come to us, they suffer pain. The degree or intensity of pain, and its duration, form very important elements in calculating the compensation or damages, which our injured clients receive. The compensation may be from a court, or from a defence insurance company, if the case is settled through negotiation, or with the assistance of a third party mediator.
When clients come to us with very severe injuries, involving fractured bones, or severely-injured joints, the task of illustrating and obtaining compensation for the pain and suffering, as part of their claim, is a relatively simple process. For many years, it has been generally accepted by courts and insurance companies that serious physical injury usually entails intense pain, which will last for the duration of the healing period of the injury, and often for an extended period thereafter.
It has been more problematic to obtain proper compensation and damages from courts and defence insurance companies for clients who suffer what is termed “soft-tissue injuries,” which are injuries to muscles, ligaments, and associated nerves. These are often associated with whiplash-type injuries or contusions suffered in motor vehicle accident collisions.
Until very recently, it has been accepted medical science that soft-tissue injuries should heal, and the injured party should have fully recovered within three to six months after his or her injury. For many years, those who complained of prolonged pain symptoms, for months, or even years after their physical recovery, were looked at with great suspicion by courts and insurance companies defending claims. They were accused of being “malingerers,” and consciously exaggerating their pain and symptoms solely for the purpose of monetary gain.
Fortunately, over the last 15 to 20 years, medical science has progressed greatly in recognizing pain as a genuine element of an injury, which can take on a “life of its own,” which can last for many years after a physical injury has healed.
Over the last decade, more and more of our clients seem to suffer from lasting and disabling pain. One often wonders whether this is related to the intense financial, personal and social stressors, which are encountered in modern life. We have noticed that people who are living on the razor edge of their finances and their emotional capabilities before an injury, often have great difficulty in recovering from even relatively minor physical injuries, and suffer very prolonged pain.
Pain disorder has been recognized for some time by the psychologists. This is defined as being the predominant focus of a clinical presentation that is sufficiently severe to warrant treatment. This pain causes significant distress or impairment in social, occupational and other normal areas of lifetime functioning. Psychological factors and medical factors are both found to play a significant role in the onset, severity, and maintenance of the pain. Psychologists have recognized that this pain is not produced falsely or intentionally, or for gain. This pain can be so severe that it prevents injured parties from continuing to attend school, or to work. They become frequent users of the healthcare system, and pain becomes a major focus in an individual’s life. This often leads to substantial use of medications, marital discord and disruption of a family’s lifestyle. If the pain lasts for more than six months post-injury, it is “chronic” and can be permanent.
It is challenging for a personal injury lawyer to be able to present the case of these individuals in a way which a jury in a court, or a defence insurer, will find credible. Often, defence attorneys attempt to destroy the credibility of these injured parties by highlighting discrepancies in their narrative of events, using extensive secret surveillance of the activities of injured parties, and highlighting inconsistencies in their memory of previous medical treatment. These cases must be handled carefully. Gathering case-building evidence must start even before litigation, and must continue through until the conclusion of the judgment or settlement.
We lawyers rely very heavily on trusted, highly-expert professional psychologists, and highly-specialized physicians to provide certified independent reports to the court. Highly-qualified professionals can generally express, in reasonably simple terms, the reason why troubling and disabling pain symptoms can continue for many years. If defence insurers and courts can understand that there are valid psychological and physical reasons for the continuation of pain, then proper compensation and damages can often be achieved. If the pain is so severe that individuals cannot continue with their educational or work careers, there can be very substantial compensation for their lost opportunities and loss of past and future income. General damages in Canada are subject to a cap, set by the Supreme Court of Canada, for the most severe and catastrophic cases. Compensation for less severe cases is set on a descending scale, based upon precedent-making decisions of our courts. There is no cap on economic damages for lost income and opportunities, so that this portion of damage awards can greatly exceed the awards for pain and suffering, which are termed “general damages.”
Within the last decade, medical science and medical specialists, highly skilled in the area of treating pain, as a separate phenomenon, have been able to establish that injured parties may develop central sensitization, which is related to post-injury changes in the nerve tissue in the spinal cord, brain stem, or higher centres of the brain. Central sensitization causes these areas generate pain on their own, without any physical input from the periphery of the body, such as being pushed or hit in a sensitive area. Chronic pain is defined as pain, which has a duration of more than six months, after physical healing has taken place. If this is the case, we have found that many of our clients never recover fully from their pain. Physicians and psychologists agree that chronic pain is a very complex entity, which has a “life of its own,” separate from the injury, which may have initially caused it. Chronic pain involves many physical factors, including motor, sensory, autonomic, neuroendocrine, as well as psychological affective and cognitive factors.
Many of our clients come to us in a highly-distressed and frustrated state, if their pain has not cleared up, or substantially resolved, within a year of their injury. It takes patience and understanding, on the part of trained professionals, to try to guide them through the process of recognizing and learning to cope and live with chronic pain. Here in Ontario, our compensation scheme, as described in the Insurance Act, dictates that motor vehicle accident victims are not to be compensated, unless their injuries are severe, permanent and disabling. In addition, they face ever-increasing deductibles to try to discourage what the insurers like to call “minor claims.” As explained above, we have found that often relatively-minor physical injuries may lead to long-lasting, and disabling pain symptoms, which can be devastating to the accident victim. Chronic pain, in and of itself, can qualify a party, injured in a motor vehicle accident in Ontario, to substantial compensation, which can make a lawsuit against the at-fault party worthwhile, despite the escalating deductible, which applies to these claims. At present, the deductible is $36,540.00 per individual collision or accident, in which a person is injured.
Fortunately, we have been able to help the ever-increasing number of our clients to obtain proper compensation for their chronic pain and the devastating effects on their lives and careers, which it has caused.