Unable to be seen, Chronic pain can be confusing, isolating and debilitating for those who suffer from it, Associate Solicitor Andrew Sloan, who specialises in these difficult cases, shares some insight into what can be a complex personal injury claim.
It is true to say, fortunately, that the vast majority of personal injury claims are for low level injuries, which settle for a modest level of damages and result from minor accidents.
But, what of those claimants who suffer from an abnormal response or pain reaction to even those accidents which are considered low level at a first glance? Even a minor injury can develop into a far more serious complaint.
If a claimant goes on to develop a chronic pain disorder it can have a significant effect on their ability to perform even the most basic of actions associated with day to day living, it can remove any earning capacity and give rise to potential care claims, which are often significant.
The 2016 Pain Summit stated that people who suffer from chronic pain have an average time to diagnosis of over 2 years.
So, what happens with a claimant who is involved in a relatively modest accident? Under the current Ministry of Justice portal process, they are in a relatively short period of time post-accident, sent to an unbiased GP who writes medico legal reports day in and day out, but deals predominantly with whiplash injuries and therefore has little exposure to chronic pain conditions.
In this industry we all see the same reports a favourable and optimistic prognosis which suggests the claimant will return their pre-accident status within a short period of time. This in turn enables the legal team to assess and quantify the claim and proceed to settlement.
This can see claims proceed to settlement without full investigations being undertaken, so it is important to not be dismissive of a client who is reporting more significant pain and discomfort.
The case of Bennett v Smith highlights the difficulties solicitors face when presented with a claimant who has developed symptoms beyond that which would be expected. It was one of the most common road traffic accidents we see in personal injury claims, a rear end shunt, with the claimant suffering what is commonly referred to as whiplash, with symptoms reported in the neck and lower back.
The GP referred to for the medico legal report gave a 12-month prognosis, but as the claimant’s soft tissue injury resolved she went on to develop widespread pain in parts of the body which were not part of the initial injury.
At 2 years post-accident the claimant was diagnosed as suffering from fibromyalgia, a chronic pain condition related to abnormal level of certain chemicals in the brain which change the way the central nervous system processes pain messages carried around the body.
It was held at the Court of Appeal that the accident was the cause of the symptoms and the claim settled for £350,000.
This demonstrated that the court accepts Fibromyalgia can be caused or triggered by trauma and the level of compensation can be significant.
In most cases like this the initial reports show a claimant who will fully recover within a short space of time, but proceed with caution. When a solicitor receives a pain diary or pages of information do not simply dismiss it.
What pain conditions are there?
- Chronic pain syndrome
- Complex regional pain syndrome/reflex sympathetic dystrophy
- Chronic fatigue syndrome
- Somatoform disorder
- Fibromyalgia/chronic widespread pain
What actually is pain?
It is accepted there is a physical and psychological component to pain, and it is very much personal to the individual – one man’s pain is another man’s tickle.
Some demonstrate higher thresholds than others, some are stoic and get on with it, others slip into a hamster wheel of pain and depression.
Those who have pre-existing conditions of depression or anxiety tend to be affected more than those who don’t.
All too often we see reports which suggest the claimant has developed a chronic pain condition, or where an orthopaedic expert cannot explain the claimants reported pain for which there is no organic explanation, but this term is often too widely used.
There are numerous types of chronic pain conditions.
The difficulty is the term is used too often and too freely when explaining an altogether different pain condition. There is often an overlap, but certain conditions will warrant the input of more than on expert from a particular specialism to say. For example, a rheumatologist for fibromyalgia, a psychiatrist for a somatic form disorder and so on. It is important the correct expert be used for the purposes of the claim.