"Where does it hurt?" It's a simple question to pose, but for victims of car accidents who suffer from Chronic Pain Syndrome, the changing answer can lead to much frustration when they seek treatment, compensation for their injuries and Accident Benefits.
These patients may report pain in different areas of their bodies and/or different intensities of pain over time. The inconsistency in these reports is often seized upon by defense counsel and insurers in order to argue the victim is either malingering or the pain is not caused by the car accident in question as it was not present in the immediate aftermath of the collision.
Recently HSH lawyer Kaitlyn MacDonell confronted this issue during a case argued before the Financial Securities Commission of Ontario (FSCO). In Pamila Veeran v. State Farm, the applicant (Ms. Veeran) was involved in a motor vehicle accident on May 11, 2011. Following the accident she reported pain in her lower back and neck. As time went on, however, she variously reported pain in her neck, left shoulder, lower back, mid back and right leg. Her reports of the severity of this pain varied over time both increasing and decreasing on different occasions.
State Farm took issue with this inconsistent reporting of pain. Counsel for the company argued that this inconsistency showed Ms. Veeran lacked credibility, that she was able to return to work and, therefore, she was not entitled to an income replacement benefit (IRB). In taking this position State Farm also noted that its own medical examination in May 2013 had recommended a chronic pain assessment in the course of denying a Treatment Plan for a psychiatric assessment. Since Ms. Veeran never submitted a Treatment Plan for a chronic pain assessment, State Farm argued her pain complaints were not serious.
However, the applicant was able to bring forward an expert opinion by Dr. Boucher to counter these arguments. He noted that in response, the applicant relied upon the expert opinion of Dr. Boucher who opined that inconsistency in pain symptoms is an inherent part of Chronic Pain Syndrome. Instead of delegitimizing the diagnosis, it actually helps to confirm it. Ms. Veeran also testified that in the face of relentless denials from State Farm she simply saw no point in submitting a Treatment Plan for a chronic pain assessment and her counsel noted that State Farm also could have arranged the assessment if it saw fit.
The Arbitrator held that "the record of refusals by the Insurer to approve any treatment is very clear and must have been frustrating for the applicant." Therefore, the Arbitrator placed no weight on the applicant's failure to obtain a chronic pain assessment shortly after the May 2013 medical examination that had recommended such an assessment. The Arbitrator also relied heavily upon Dr. Boucher's statements in finding that the applicant's inconsistent pain reports did not undermine the diagnosis of Chronic Pain Syndrome. Ultimately, the Arbitrator held that the applicant was entitled to her past and ongoing IRBs.
As this case demonstrates, it is important for car accident victims to get adequate medical opinions that acknowledge the complexities of chronic pain. Although the inconsistency in a report may appear to undermine an applicant's credibility, when placed in the proper medical context by counsel it may actually bolster their credibility.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
