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Personal Injury

Medical paper trail helpful in chronic pain claims

People suffering from chronic pain need to help their lawyers by leaving a medical trail, says Toronto personal injury lawyer Darryl Singer.

Singer, principal of Singer Barristers Professional Corporation, says the odds are often stacked against people who suffer from chronic pain because conditions such as fibromyalgia can be hard to prove and don't leave a physical trace like broken bones.

"Often when clients with a history of fibromyalgia or similar type of chronic pain are involved in an accident or a slip and fall, the nature of that pain is accelerated," Singer says. "That nature of pain is not uncommon.

"The other scenario involves people without pre-existing significant pain and, as a result of a soft-tissue injury, it morphs into what is ultimately diagnosed as fibromyalgia," he says.

Insurance adjusters and doctors hired as experts by insurance companies are often skeptical of chronic pain claims, such as fibromyalgia, Singer says.

"They will take the position that fibromyalgia is an organic disease, it just can't be caused by an accident," he says. "It doesn't mean we don't argue it, there's case law on it and certainly a diagnosis of fibromyalgia is always helpful at the bargaining table for us."

Singer says doctors perform tests to determine whether a patient is suffering chronic pain. But he says in many cases, X-rays or other medical procedures determine no visible cause for the pain, unlike tumours or broken bones.

"Really, for lawyers, the big issue is if the chronic pain has lasted for six months and there's no reasonable prospect in the diagnosing doctor's opinion that it will abate at any foreseeable time, and there's no underlying explanation," he says.

"These are often self-reported ailments, with people going to doctors saying their neck is sore, their back is sore, or they have headaches every day," he says. "This is the biggest problem we face as personal injury lawyers when our clients don't have anything that shows up on diagnostic imaging tests."

The case moves through a "cycle of experts," Singer says, where plaintiff and defence lawyers send the claimant to experts, who invariably hold opposing opinions — either the chronic pain was caused by an accident or the pain is exaggerated.

He says many general practitioners neither have the ability nor the desire to deal with soft-tissue injuries, but Singer urges people suffering from chronic pain to see their doctors regularly and seek referrals to specialists, including rehab therapists.

That medical trail is essential for personal injury lawyers making a claim for a client.

"I'm going to have a hell of a time convincing an insurance company, or convincing a judge and jury, that this person has pain without medical records, even if I don't have a shred of doubt in my mind that he or she does," Singer says. 

"It's chronic pain and my job is ultimately to explain it using the medical evidence I have on how the pain impacts my client," he says. "I'm less concerned about what we call it. I'm more concerned with what impact it has on somebody's life. The pain is very real."

If someone is suffering from a soft tissue pain, it's conceivable the doctor will say there's nothing they can do, he says. But the record of a doctor's visit can be helpful during a future mediation or trial.

"I tell my clients they should go to a chiropractor or physiotherapist on a regular basis because we need to have records of the same treatment given for the same complaints," Singer says.

He also tells clients they need to keep their appointments with doctors and specialists. The visits establish the patient was in enough pain that they felt compelled to seek help even if they didn't provide any relief. A client claiming he's in pain is not enough, he says.

"I need evidence to work with," Singer says. "I need medical evidence from doctors who say the person has actual pain."

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