Chronic pain claims are notoriously difficult to quantify and defend, and seem to be on the increase. Graham Lynch considers some of the reasons behind this trend and provides some hints and tips on how to deal with these claims.
What is chronic pain syndrome?
There is no clear definition for chronic pain syndrome (CPS), with some experts disputing its validity as a physical condition. The loose definition is generally agreed to be pain which has lasted for longer than three months, or longer than the reasonably expected healing time.
Why are we seeing more claims?
Perhaps it is because CPS is now more commonly accepted, but certainly with the current programme of personal injury reform focusing largely on whiplash claims and costs, it is easy to see why claimants are motivated to explore alternative diagnoses.
One of the problems with chronic pain claims is identifying them. A case will often start as a seemingly innocuous road traffic accident claim, but will then develop into something more complex.
How do you defend a chronic pain claim?
Chronic pain claims are notoriously difficult to quantify and defend as there is often no organic explanation for the pain. CPS can arise when pain is disproportionate to the original trauma; when pain manifests itself in an area remote from the original trauma or when the pain does not respond to treatment. Chronic pain can take various guises such as regional pain syndrome, neuralgia, and fibromyalgia.
Often, the level of pain reported does not correlate to the trauma sustained and this can lead to doubts over the credibility of the claim. That being said, courts are reluctant to find that a claimant is malingering and will often try to give the claimant the benefit of the doubt.
1. Medical evidence
The claimant will often start with a GP report, and then move onto an orthopaedic report when they fail to recover in line with the GP’s prognosis. If the orthopaedic expert is unable to explain why the pain is on-going in the absence of any clinical signs, they will often refer the claimant to a chronic pain expert. It is essential to consider whether there are any inconsistencies in the claimants presentation to each expert.
By the time chronic pain is identified, it is often too late to commission your own orthopaedic report. However, it could be worth instructing a rheumatologist with an interest in diagnosis. A diagnosis will open the door to pain management or rehabilitation and this will enable intervention and hopefully, mitigation. This will increase the chances of a prognosis which is of course the key to quantifying the claim.
If the defence relies on expert evidence, it is essential to examine the expert in conference, especially if there is more than one, as any inconsistency between experts may be sufficient to undermine a defence.
It is critical to consider the claimant’s history. Medical records are important, and you should obtain not just GP and hospital records but also physiotherapy, osteopathy, and any other associated records. It is also useful to consider the claimant’s DWP, employment, occupational health and personnel records in order to consider the claimants history and presentation.
3. Objective evidence
It may be useful to profile witnesses to enable you to assess the credibility of their evidence. If there are suspicions that a witness is not being completely genuine, then it might be worthwhile looking at their claims history, their background, and their social media records.
It could also be worth looking for objective evidence of the claimant’s functioning, especially if the medical evidence or records show any inconsistencies. Surveillance is an obvious and often very useful resource, but it could also be helpful to send an investigator to interview witnesses, neighbours, or colleagues.
The key to dealing with a chronic pain claim is tactics. Given the subjective nature of these claims, the defence must be forensic, but a defendant should be careful not to dismiss the concept of chronic pain or call the claimant a malingerer without the strongest evidence. Courts are loath to disbelieve a claimant without strong evidence and so it is very rare that a case will get to trial. The objective of most defences will be containment and leverage for negotiation.