We explore fibromyalgia in the claims environment and take a fresh look at tactics for defendants and their insurers.
Fibromyalgia claims are potentially fraught with difficulty. Causation is key but requires careful investigation and unpicking and selecting the right team of medical experts is crucial.
What is fibromyalgia?
Fibromyalgia is a chronic condition that causes widespread pain and diffuse tenderness in the muscles, ligaments and tendons. However, not only is the condition fundamentally difficult to diagnose but the exact cause of the condition is unknown.
As outlined on the NHS choices website, certain criteria will normally have to be met before the diagnosis can be made. There should be severe pain in three to six different areas of the body or milder pain in seven or more different areas and symptoms should have remained at a similar level for at least three months. The condition potentially mimics other conditions so those need to be ruled out. In addition, patients often suffer from a plethora of other pre-existing medical conditions, both physical and psychological.
Fred Wolfe, the lead author of the 1990 paper that first defined the diagnostic guidelines for fibromyalgia, concluded in a recent study, published in The Journal of Rheumatology, that there is no link between physical trauma and the onset of subsequent fibromyalgia. Nonetheless, some of the claimant lobby persist in encouraging sufferers of the condition to pursue claims when they have been involved in even the most trivial of accidents.
Taking a strategic approach
It is therefore essential that defendants take a well-planned strategic approach to these claims. The most important considerations are:
- Ensure that robust processes are in place to select appropriate medical experts. A rheumatologist and a psychiatrist will be required as a minimum and should be chosen carefully and wisely. They should ideally have experience of giving evidence in fibromyalgia cases where their evidence was preferred by the court in its handed down judgment.
- Fully reviewing the claimant’s medical, occupational health, Department for Work and Pensions and other records to assist in causation arguments. It is frequently the case that the condition is wholly unrelated to any traumatic event and the condition was pre-existing even though no formal diagnosis had been made. Accidents are very likely to have had no impact at all on symptoms or at the very least only exacerbated them minimally.
The subjective nature of the condition does unfortunately lend itself to exaggeration of symptoms, whether conscious or sub-conscious, so that potential issue needs to be considered very carefully too.
Managing the condition
It is frequently pleaded in these cases that fibromyalgia significantly restricts claimants’ day-to-day activities and large claims for care and loss of earnings are accordingly advanced. These claims should be challenged robustly.
Modern medical opinion is such that, given the nature of the condition and the absence of any real physical tissue damage, participating in regular physical exercise and carrying on with normal everyday activities is positively recommended in order to manage the condition. Claimants and sufferers need to be reassured that the condition is not crippling and that inactivity will in fact have the reverse effect by increasing pain and fatigue. That modern medical approach needs to be brought into the claims environment to challenge those large elements of the claim.
Each case of fibromyalgia needs to be considered on its own merits. However, taking a strategic approach to litigation and assembling an experienced legal and medical advisory team, who take a modern approach to the issues that frequently arise, will offer the best chance of a successful outcome.
It is also hoped that the claimant lobby and numerous fibromyalgia support groups that have sprung up around the country will encourage their clients and members to avail themselves of the treatment and information that is available and to continue to pursue active, productive lives.
This article was first written for publication by Insurance Day