Toronto Injury Lawyer Blog
Chronic Pain is a real thing.
But just because it’s real, doesn’t mean it’s easy to prove in a personal injury case.
In fact, chronic pain cases are probably the most difficult types of injuries which personal injury lawyers have to prove on behalf of their clients.
But, why are chronic pain cases so difficult?
That’s an easy answer once you know how personal injury cases work.
Most people who are unfamiliar with the Courts, and how personal injury cases work would believe that chronic pain cases are easy. It would entail having a Plaintiff take the stand, and s/he can explain the the Judge and Jury that they are in extreme pain and cannot function. Taking things one step further, the Plaintiff would then have the power to take the Judge and Jury home with them, to see how difficult it is for them to manage their daily activities. The Judge and Jury would sleep over, and watch how hard it is for the Plaintiff to fall asleep, get out of bed in the morning, shower, get dressed, brush their teeth, prepare meals, wash the dishes, take out the trash, clean the house etc.
This is not how Courts work. You cannot bring the Judge and Jury home with you to see how hard life has become since the accident.
The Plaintiff gets one shot on the stand. When they take the stand, they have to articulate their pain in such a way to convince a Judge and Jury to accept their story such that they ultimately make a ruling in their favour. If a Plaintiff does not present as credible, reliable or likeable, chances are that the Judge and Jury will not accept their story (even if that story is the truth!). Not only that, if a Plaintiff is not able to properly explain their pain, suffering and the difficulties that they have with their day to day activities (even if this is completely legitimate), a Judge and Jury might still have a hard time finding in their favour. That means that it’s not always about what’s being said, but sometimes it’s also about how it’s being said, and how that message if being received by a Judge and Jury.
Chronic Pain is Invisible
A Plaintiff’s degree of pain will not show up on any x-ray, CT Scan, MRI or other diagnostic test. There is no objective pain test which has been accepted by a Court.
There are pain scales which are referenced by personal injury lawyers and doctors. Pain scales rate between 0-10. A score of zero reflects no pain at all while a pain scale of 10 reflects excruciating pain.
The problem with these pain scales is that they are only as good at the subject which provides the answers. If the subject is lying or exaggerating his/her pain, then they are of limited value. The other problem is that everyone’s pain tolerance is different. Somebody’s experience of Level 3 pain, will be different than another person’s experience. This means that somebody’s Level 9 pain might feel like a Level 3 pain for another person.
The pain scale is an example of a subjective pain test, or subjective pain measurement. Because it’s subjective, the results are not as reliable as objective testing results and are only as good/reliable as the person who relies on that evidence. If the person leading the evidence is seen as credible and reliable, then the more likely that the pain scale test results will be accepted and relied upon. But if the person is seen as an unreliable narrator, or lacks credibility, then the pain scale test results which lack reliability and credibility as well.
Consistent Notations of Pain in Records is Important
If a Plaintiff is complaining of chronic pain, that needs to be reflected in the medical records.
A successful chronic pain case will have notations in the treating doctor or treating health care professional’s record which reflect chronic pain, or issues with managing their usual activities of daily living which they were previously able to do without issue.
Regular visits to the doctor or a treating health care professional such as a physiotherapist, occupational therapist, massage therapist etc. are important. They show that the Plaintiff is in pain, and trying to do something about it. The insurer, Judge and Jury will draw a negative inference if the Plaintiff is not making regular visits to a doctor or a clinic to address their pain complaints. Infrequent visits will mean that the pain either isn’t’ real, or isn’t a big deal. If a Judge or Jury draws one of these conclusions, it would be detrimental to a Plaintiff’s personal injury case.
Doing Something About the Pain is Important
Sitting at home and doing nothing about the chronic pain isn’t enough for a great case.
Taking medication shows the Court that the Plaintiff is in pain and that they are doing their best to manage it. Refusing to take medication, even trying the medication to see if it provides any sort of pain relief is not a good look. It shows that the Plaintiff isn’t even trying. This sort of effort is important in a personal injury case. The concept is called mitigation. If a Plaintiff doesn’t mitigate their damages or losses, then a Court does not have to award any damages. That’s not to say that a Plaintiff is not allowed to refuse medication if it doesn’t accord with their body or upsets their stomach. But the fact that a Plaintiff didn’t even try is a bad look.
The same line of thinking applies to rehabilitation treatment, or even pain injections. If any sort of treatment is recommended, it needs to be tried at the very least. You never know. It might help. If it does help, then that’s wonderful. But if it doesn’t, then at the very least the Plaintiff has peace of mind knowing that they gave it a try. And they can tell the Court that they have clean hands having given it a go. A Court will NOT fault somebody for trying to get better following a serious accident. However, they will fault a Plaintiff for not trying to do so. Better to be damned if you do in these cases.
