Chronic pain compensation claims

Have you struggled to know how to deal with the pain following an accident?   According to the British Pain Society, almost 10 million of us in Britain suffer pain almost daily, and around 28 million adults are living with ‘chronic pain’.

This guide will explain the various types of pain you or a loved one might be suffering from, and what you can do about treating the pain.

 

Types of pain

Pain is personal and subjective and is defined generally as an unpleasant sensory and emotional experience associated with actual or potential tissue damage.  It is therefore recognised that pain has two components – physical and psychological.

 

‘Acute’ pain is defined as a short-term pain lasting less than 12 weeks. ‘Chronic’ pain is a persistent, long-term pain lasting more than 12 weeks, or after the time that healing would’ve been expected to have occurred in pain after trauma surgery. ‘Neuropathic’ pain is pain caused by a lesion or dysfunction in the central nervous system.  For instance, pain following an amputation or spinal-cord trauma.

It is a fact that people who have depression or anxiety tend to feel symptoms more.  We also need to bear in mind that some people have a higher pain threshold than others, and some are more stoical than others.

 

Chronic pain and personal injury litigation 

 

From a lawyer’s perspective, failure to spot a developing chronic pain condition causes two obvious scenarios – Firstly, the client may be under-compensated and fees will not be realised and; Secondly, the lawyer could face a professional negligence claim.

 

At Optimal Solicitors, we get to know our clients very well as we are on a long journey with them through rehabilitation, the litigation process to settlement of the claim, and beyond.

 

There are so many technical and legal complexities of, and challenges to, litigating a chronic pain claim and the expectations of the client need to be managed carefully.  At the same time, lawyers need to understand that the client will often feel overwhelmed by their symptoms and unable to cope.  They will have had poor experiences with medical professionals being dismissive or disbelieving of their symptoms, they will have spent years trying to get medics to accept that there is something wrong and no effective treatment has been offered.  The feeling is one of ‘everyone is against me.’

 

Historically, chronic pain cases have been met with significant judicial scepticism.  More recently though, there has been an increasing tendency for the courts to accept that these cases are genuine and significant – provided they are supported by proper and cogent evidence.

 

The case that changed the judiciary is outlook on chronic pain was that of Bennett -v- Smith .  There are a number of chronic pain syndromes, but in this particular case the chronic pain condition of fibromyalgia was accepted.

 

The claimant, ‘Bennett was involved in a road traffic collision when the Defendant, ‘Smith’ drove into the rear of Bennett’s vehicle.  It was a relatively minor rear-end shunt.  Bennett was diagnosed initially by an Orthopaedic Consultant with whiplash-type symptoms in the neck and lower back, with a relatively short 12 months’ prognosis.

 

Although the soft tissue injuries settled, Bennett developed widespread pain in sites that had not been involved in the original injury. Some two years later, Bennett was diagnosed with the severely disabling pain condition of fibromyalgia.

 

The trial judge accepted (and this was upheld on appeal) that the accident had caused Bennett to develop fibromyalgia and the case is settled for £350,000.  If fibromyalgia was not accepted, the claim would have had a value more in the region of £3,500.

 

As we can see from the Bennett case, the potential value of claims for chronic pain can be very high as the effects can be lifelong and disabling without curtailing life expectancy.

 

In order to achieve a proper level of compensation in any case, a great deal of time must be expended by lawyers on properly preparing and presenting the case and we cannot rely on initial medical experts to spot an evolving pain condition.

 

In most cases of chronic pain, there is a history of vulnerability. This vulnerability is not a disadvantage to the client as it in fact goes to explain why some people may develop such a condition and others don’t.

 

Since the Bennett case, the Judicial College Guidelines (the guide used by lawyers, which places a value on particular pain, suffering and loss of amenity) includes the different chronic pain syndromes.

 

 

Pain Conditions 

 

Chronic pain syndromes must not be confused with chronic pain, which is simply a diagnosis of the pain lasting for more than 3 months.

 

• Complex regional pain syndrome (‘CRPS’) is a continuous pain out of proportion to the severity of the original injury that worsens rather than improves over time.  The pain is regional and usually has abnormal sensory, motor, pseudomotor, vasomotor, and/or trophic findings.  CRPS often affects the limbs and typical features will include dramatic changes in the colour and temperature of the skin over the affected limb or body part, accompanied by intense burning pain, skin sensitivity, sweating and swelling.  In some cases, CRPS can spread to limbs that were not originally affected and ultimately it can lead to amputation in very extreme cases.

 

• Fibromyalgia is condition that causes muscle pain all over the body.

• Chronic pain syndrome (‘CPS’) is different to CRPS and is a condition where people have symptoms that go beyond pain alone such as depression or anxiety

• Chronic fatigue syndrome encompasses a wide range of symptoms, but the main symptom as it suggests, is fatigue

• Conversion disorders are denoted by neurological symptoms, which are inconsistent and can be traced back to a psychological trigger.

• Somatoform pain (or stomatic symptom disorder) is a condition that manifests as physical symptoms and can be most noticeable in people who ask for investigations despite repeated negative or normal findings, yet that person’s belief that the suffering is genuine often shows in a restriction on capability and a genuine disability.

 

Considerations when diagnosing a chronic pain syndrome

 

There are certain considerations we need to take when diagnosing a chronic pain syndrome.  These might include your symptoms, the causes, and to what extent they’ve been caused by, or made worse by, the accident.

We also need to understand if there are any other causes of the symptoms and how the condition might have worsened without the accident occurring.

Finally, we would look at the treatment options for your condition and what the outcome might be after all possible treatments have been exhausted.

 

The potential Defences to chronic pain syndrome cases :

 

• Malingering

• Non-accident related causes

• Pre-existing conditions

• Other conditions, which would have caused disability in the future in the absence of a

• Chronic pain condition

• Conditions, which may limit life expectancy

 

 

Evidence needed: 

The client’s full medical records must be obtained for evidence, as these are key to understanding a potential chronic pain claim.  A chronology of the records both before and after the index event is crucial.  This can be used to pinpoint the onset of symptoms and their progression over time.  It may also highlight other apparently similar symptoms before the accident or other complaints of unexplained pain.

 

DWP records and employment records of the client are also of great importance to see how they have struggled with the demands of work as their condition progresses and they’ll highlight the stated reasons for leaving work or changing the duties.

Disappointingly, but similar to the situation in the Bennett case, the average time for a patient to receive a satisfactory diagnosis of a pain condition is still 2.2 years.

 

A primary medical expert, such as a Consultant Orthopaedic Surgeon will deal with the initial injury and they will often state, where symptoms have not resolved within their original prognosis, that the remaining symptoms are either not related to the injury or they are constitutional or accelerated, or they cannot be medically explained or there is abnormal pain behaviour.

 

This absent or apparent dismissive diagnosis should not be excepted at face value and referral to another discipline when signs are pointing to a possible chronic pain syndrome should be sought.

A Pain Consultant will be able to give an opinion that the client has gone on to develop a chronic pain syndrome, which arises from the accident and that it would not have occurred but for the accident.

 

Where a client has been functioning before an injury and is seriously affected afterwards, it is wise to be extremely sceptical of Orthopaedic Surgeons who say that the client would’ve been like that in any event a few years down the line.

 

A pain expert will consider the following: 

 

• Diagnosis and fulfilment of relevant diagnostic criteria

• Causation

• Treatment

• Prognosis

• Condition, but for the wrongful act

 

 

Other helpful evidence: 

 

Once the medical prognosis is available, we then need to consider obtaining care evidence from an Occupational Therapist to support the claim for past and future needs and loss/costings.

Witness statements are a vital evidential element of a chronic pain claim.  It is important to note that the condition may change over time and they should be included in the client’s statement or a series of statements.

Statements should also be obtained from family and friends highlighting how the client was before and after the accident and detailing the level of care, assistance and support they now require.

With a badly affected client, ‘a day in the life of’ description in a statement (and sometimes better in a video) may give an eloquent picture of how every facet of the client’s life has been affected.

 

It is extremely important to avoid the trap of merely describing the worst of the client’s condition because it is highly likely that the defence of malingering will at least be considered by the defendant and because of this the client could be subjected to surveillance at some stage.  Witness Statements should also therefore address what the client says is capable of doing on a good day along with a description of the consequences of being more active than usual on such a day and then the payback pain.  This exercise can protect the client for criticism if one of the good days is videoed by the Defendant.

 

How can you manage your pain?

 

There is no known cure for chronic pain syndromes.  We appreciate the pain is personal to you and we know it is subjective in that no one else will truly understand how much pain you are experiencing.  More than not, you will suffer in silence and when you’re in pain, the last thing you want to hear is ‘I know how you feel’.

 

Rehabilitation and a pain clinic or otherwise will very much depend on the type of pain syndrome you have and as a general rule, whilst a cure is not expected, some alleviation is to be hoped for.  The response to treatment is unpredictable and therefore it is preferable to ensure treatment is completed before the case is concluded.  Failure to do so could lead to the client being under-compensated.

As there are different types of pain, similarly there are different types of medication to treat the specific pain being experienced.

 

• Medication for your muscles or for arthritis/inflamed tissues or joints are treated with anti-inflammatory medication often containing opioids – for instance, Morphine.

 

• Neuropathic (nerve) pain is relieved by desensitising the affected nerves with an anaesthetic.  It is not relieved by common painkillers such as paracetamol.  Gabapentin and Pregabalin are examples of neuropathic medication.

 

• Besides medication, other treatments, which can help pain can include the following:

 

• Facet joint block or caudal epidural injections.

 

• Cardiovascular exercise.  Keep active.  Long gone are the days of a medical practitioner saying ‘rest up for a week or two’.  Inactivity will often worsen the situation.

 

• Physiotherapy, osteopathy, hydrotherapy, acupuncture and acupressure.

 

• Electrical stimulation of the nerves by use of a tens machine.

 

• Brain retraining.  Mirror-box therapy for amputees shows you the physiotherapist working on the stump, which effectively remaps your neural pathway so you appreciate a limb is no longer there.

 

• Interactive virtual reality.

 

• Psychotherapy to address symptoms of PTSD, depression, anxiety, denial, flashbacks, insomnia avoidance, nightmares, dysmorphia.

 

A pain management program is essentially psychotherapy in a group setting for people with chronic pain that is designed to help you best cope with pain and lead a more active life.

 

There are a number of alternative/ complimentary treatments that can help reduce pain as well as a number of self-help exercises and lifestyle choices that can include:

 

• Mindfulness and simple positive affirmation

• Reiki

• Bowen therapy

• Herbal preparations and supplements

• Homoeopathy

• Meditation and Tai Chi

• Cognitive therapies

• Eat healthy and reduce weight

• Change posture regularly

• Breathe deeply

• Join a support group

 

If you’re suffering from chronic pain caused by an accident and would like to discuss your options with one of our Serious Injury Solicitor, please call us today on 0161 504 7646.