How does an insurer, judge or jury assess one’s pain level? If their pain is not showing up on any x-ray, scan, or test result, then how does a Court truly know that the claimant is in pain; and in fact telling the truth?
What’s stopping somebody from simply making a claim that they’re disabled, and lying to their doctor and to the Court alike?
How do we know that somebody is telling the truth about their subjective pain, fatigue or other cognitive difficulties (loss of memory, sadness, fatigue, loss of concentration etc.)?
These are all very good questions. Believe it or not, our the way that personal injury claims and long term disability claims work in Ontario make it pretty clear who’s faking, and who’s not.
First, we have to draw a distinction between an objective injury vs a subjective injury. An objective injury is one that will show up on an xray, scan or test. A factured ankle. A broken femur. A cranial facture. A hematoma on the brain. All of these are injuries which will show up on a test, which any doctor, or non-medical person can likely see. It’s pretty hard for an insurer to refute an ankle fracture injury when the x-ray clearly shows that the ankle is fractured.
A subjective injury is different. These are injuries which will not show up on any test, xrays or scans. Many concussions or minor head injuries will NOT show up on CT Scans. Soft tissue injuries to one’s back will not show up on an x-ray; and may not even show up on an MRI.
Anxiety, depression, fatigue, memory loss, loss of concentration, fibromyalgia, chronic pain: these sort of injuries might show up following a battery of psychological tests undertaken by a psychologist or a neuropsychologist. BUT, they won’t show up on an x-ray.
Because of this, insurers, judges and juries want EVIDENCE that these subjective injuries that you’re claiming for are in fact real and legitimate injuries. Simply saying that you’re in pain, depressed, anxious or tired isn’t good enough.
Some evidence whih has been used to influence judges and juries in Ontario to proove that the subjective injury is in fact real, includes but is not limited to:
– MEDICATION: what are you taking, what dosage, what frequency, who prescribed it, and how long have you been taking it. Is it heavy duty medication, or does your doctor not even thing think that your injuries are serious enough for prescription medication? Now, we appreciate that some clients are adverse to taking medication to manage their pain, so this might not be the best indicator. But, it’s one on a lengthy list.
– MEDICAL TREATMENT: Have you been seeing a doctor for your injuries? What has your doctor reported in his/her notes? If there’s nothing in their records about pain or your injuries, and all that’s contained in the records is information about a sore throat or a nose bleed, then it’s clear that your injuries either aren’t being reported by your doctor, or you aren’t reporting the injuries to your doctor because they’re not serious. Has your doctor referred you to any analysts for your injuries (psychiatrist, physiatrist, ortho surgeon, rheumatologist). What’s the frequecy of your doctor visits? We appreciate that some claimants don’t have a family doctor on account of a lack of resources in their area. Still: if you’re in serious pain, then you should be seeing a medical professional
– REHABILITATION THERAPY: Are you going for physiotherapy, chiropractic care, psychological counselling, naturopathy or massage for you pain. Are you paying for this treatment out of your own pocket in order to get better? If so, this is a good indicator that you’re in pain and that the problem is a serious one. Afterall, what person would pay for treatment out of their own pocket (when money is tight), when they’re NOT in pain. I can think of a million and one better ways to spend money other than on unecessary treatment.
– EMPLOYMENT: Is your disability preventing you from working, or are you still able to work? Have you tried returning to work, but couldn’t do it because the pain was too much to handle? These are important factors which the Court will want to examine in order to understand your pain
– RECREATIONAL ACTIVITIES : What sort of recreational activities did you participate in before your pain/disability. Are you still participating in this activities or not? If not, then why not? Is it because of the pain, or is it because of another reason. Many of our chronic pain clients used to be very active; be it in sports, fund raising, dancing etc. After their disability, we see that thye cease participating in these programs, and become more socially withdrawn.
– WHAT YOUR FRIENDS/WITNESSES SAY: One of the best ways for a Court to understand your pain, isn’t to hear it from you. It’s to hear how you’re coping from your friends, family and other community members who may not have the same vested interest in the case as you do. Some of the best testimony I’ve heard has been from random acquaintances who happen to see the claimant on a regular basis; but their contact isn’t a close one. Perhaps it’s on a regular bus route, or at a local market. In the past, they report that the person walked fluidly and didn’t require any walking devices. After the disability, they report that the disabled person may need a walking aid, and didn’t come by as frequently. It’s these little things which make great indicators for one’s pain and how it impacts the quality of one’s life
–SURVEILLANCE: Has the defendant insurer undertaken any surveillance of you? If so, what does it show? Does it show you going to doctor’s appointments? Does it show you working or doing heavy lifting? Does it show you going to an amusement park and having a great time? Either way, surveillance has a tendency to sway a Judge and Jury’s opinion and is a common trick for insurers in chronic pain cases. They want to get images or videos or you doing something that you said you cannot do; or that you ought NOT be doing.
–YOUR DAILY ROUTINE: What are you doing with your life since becoming disabled? How are you spending your day? What time do you wake up? What time do you go to sleep? Do you have problems falling asleep or are you constantly fatigued? Believe it or not, Courts and insurers want to know this information so that they can assess you level of pain, disability and your case.
–YOUR PRE-DISABILITY HISTORY: What was your health like before you became injured or disabled? Were you perfectly healthy? Were you already on disability for another health reason? This is significant because it will help the lawyers involved in your case understand your baseline of health prior to the disability so that we know how far you’ve dropped off.
-ACCIDENTS BEFORE OR AFTER THE DISABILITY: Were you involved in an accident before you became disabled, or AFTER you claimed disability? Both are very relevant to your claim, and towards assessing your level of pain and suffering. One accident will always try to pin the blame on the other accident and vice versa; which has a tendency to complicate many personal injury claims.
Enough Law Blog Talk? Sure. Congrats to the Cavs on acquiring yet another 1st overall pick in the NBA draft. Talk about LUCKY! And this is the very same franchise that had the priviledge to draft LeBron James. All of those 1st overall picks, PLUS Lebron James? That’s one lucky franchise. Or unlucky. Just ask Craig Ehlo, Mark Price and Brad Daugherty. And now you know why we put a picture of Craig Ehlo in the Toronto Injury Lawyer Blog. I thought it was a pretty neat addition.