On June 7, 2009, Marie Giordano was the victim of a motor vehicle accident that left her with physical injuries and ongoing pain. The physician who examined Ms. Giordano over the course of four to five years after the incident diagnosed her with chronic cervical pain, chronic lumbosacral strain and a left shoulder girdle strain. Essentially, Ms. Giordano developed chronic pain syndrome as a result of the motor vehicle accident.
While the defendants Cheng and Fang Zhi Li were willing to admit liability for the accident, they challenged the severity of Ms. Giordano’s injury claims and filed a threshold motion under the Insurance Act. However, the judge ruled in Ms. Giordano’s favor, stating that she met the threshold provided under the Insurance Act by proving she had suffered permanent serious impairment due to the accident. At the conclusion of the jury trial, Ms. Giordano was awarded more than $500,000 in damages.
This case is a typical example of a personal injury claim involving the issue of chronic pain, with respect to the skepticism and threshold challenge from the defense that frequently accompanies these types of injury suits. The reason for this is that chronic pain syndrome is sometimes difficult to accurately and definitively prove.
What is Chronic Pain Syndrome?
So what exactly is chronic pain syndrome? According to substantive literature on the topic, it is essentially pain that lasts for an extremely long time. The pain can be mild to unbearable, intermittent or continuous and may be slightly inconvenient or leave the sufferer completely incapacitated. Medical experts have narrowed the timeline to define chronic pain syndrome to pain that lasts more than six months (although for some experts, 3 months is the definitive timeframe) and also, pain that lasts longer than the reasonably expected healing time for a condition. Chronic pain can manifest anywhere in the body, including the brain and/or spinal cord.
Experts further categorize this condition into three groups based on the cause of the pain. The first group involves pain that is the result of some type of trauma or an existing disease, where the pain is actually consistent with the condition. This grouping includes individuals who suffer from musculoskeletal injuries or disorders, such as herniated disc and other spinal injuries, fractures and rheumatoid arthritis. It also includes chronic pain syndrome associated with urologic disorders, gastrointestinal disorders, neurologic disorders and other physical conditions that result in pain.
The second group involves pain that results from an injury or disease, but in these cases, the pain is much greater than expected given the nature of the condition. This includes, for example, accident victims suffering from soft tissue damage.
The final grouping for chronic pain syndrome includes pain resulting from no discernable physical disease or trauma. Included in this classification are people who suffer from conditions such as depression, bipolar personality disorder and sleep disturbances.
The primary symptom of chronic pain syndrome is of course pain. Characteristic of this type of pain is that it persists longer than it should; the pain often feels like a burning, aching or electrical sensation; and finally, it includes feelings of discomfort, soreness and tightness. Other common symptoms include fatigue, sleeplessness, disability, and withdrawal from activity, a weakened immune system and changes in mood including anxiety, stress and fear. The National Institute of Neurological Disorders and Stroke is one of many associations that offer information on how to identify and treat chronic pain syndrome.
The most common cause of chronic pain syndrome associated with personal injury, is car accidents. Every day, hundreds of Canadians are hurt, severely injured or killed due to car accidents. Accident victims may experience a broad spectrum of injuries, from concussion or fractures, to brain or spinal injuries. The development of chronic pain syndrome is complex and many injuries resulting from car accidents have the potential to have enduring pain. The causes of most car accidents are preventable actions which include: aggressive driving or speeding, driving under the influence of alcohol and/or drugs, and distracted driving (which includes fatigue). Accident victims for whom injuries and chronic pain were caused by a negligent driver are eligible to make a claim for compensation for losses resulting from their accident.
Another common type of personal injury that is often associated with chronic pain syndrome is slip, trip and fall accidents. When individuals fall, they are at particular risk of injuring their back or spine, or fracturing a hand, wrist or ankle. Some individuals are fortunate to heal without complications from such falls, but for others, chronic pain can develop and persist for months or years. Slip, trip and fall accidents can occur almost anywhere, including businesses, apartment buildings, municipal property and workplaces. When negligence in maintaining a premises is the reason for a slip, trip and fall accident, the property owner may be liable for serious injuries that result. Common causes of slip, trip and fall accidents are poor lighting, uneven surfaces, spills, ice and debris.
Proving Chronic Pain Syndrome
As previously stated, there are challenges in successfully claiming a chronic pain syndrome personal injury because most of the signs and symptoms are not visible to the naked eye or through medical procedures such as an X-ray. It is sometimes argued that the symptoms are mostly subjective; a common defense strategy is to downplay the injured person’s claims of pain and/or suggest that pain is exaggerated.
However, there are some important steps that can significantly increase the chances of making a successful personal injury claim for chronic pain.
- Consult with a well-respected medical professional and expert on chronic pain syndrome to evaluate and assess the injured person, who can explain and testify to the validity of the condition.
- Employ a rehabilitation expert who can assess the injured person’s expected recovery process. This assessment contributes to an objective means for calculating damages for such losses as lost future earnings, and pain and suffering.
- Obtain solid evidence, including demonstrative evidence with the help of a professional reconstructionist, showing that the accident was of a type and force to cause serious physical injury.
Although it may be more challenging to prove chronic pain syndrome in personal injury cases than more visible forms of injury, there is increasing acceptance of this very real condition and many accident victims suffering from chronic pain have successfully won suits for damages. Two key decisions that have significantly influenced the legal interpretation of chronic pain syndrome in personal injury claims are the 2003 Supreme Court ruling in Nova Scotia that declared it unconstitutional to declare limitations on chronic pain and the 1987 Decision 915 by the Ontario Workers’ Compensation Appeals Tribunal, which set a precedent for recognizing compensation for chronic pain.
Accident victims whose injuries result in chronic pain can take steps to contribute to a strong case for compensation. You can help by documenting the circumstances, severity and frequency of your pain, every day, and beginning as soon as possible following your accident. This will establish a pattern of consistency. Further, it will serve as important diagnostic information for your physician and also, as relevant evidence in a claim for injury compensation. It is vital that you visit a medical expert to receive a professional medical diagnosis. Accident victims are also advised to contact a personal injury lawyer as soon as possible. The earlier you contact an attorney, the more time they have to plan a strategy for your claim and advise you on assessments and reports necessary to prove the severity of your injury.
At Injury Lawyers of Ontario (the ILO group), our team of personal injury lawyers offer many years of experience and knowledge in representing clients who were seriously injured in accidents due to the negligence of others. Accident victims suffering from chronic pain often experience devastating loss and a reduced enjoyment in their life, not unlike persons with other forms of injury. Anyone who suffers long-term injuries as the result of a negligent act deserves to receive compensation to allow them to live, as much as possible, in the same manner as they did prior to the accident.
If you or someone you love has been injured in an accident, please call or visit an ILO office today. We can provide a free initial consultation to discuss the specifics of your case and your best options for moving forward. Let us help ease a difficult and trying time for you and your loved ones.