This is a continuation of our previous article: Chronic Pain, Fibromyalgia and Chronic Fatigue Litigation
A. Pre-Accident History
As is apparent from the medical definitions of these conditions, the nature of chronic pain, fibromyalgia and chronic fatigue often involve non-specific, subjective symptoms. Therefore, the focus in these cases is generally the plaintiff’s pre-accident history. When marshalling the evidence to support a client’s case, plaintiff’s counsel must make every effort to establish a contrast between the plaintiff’s health, activities, social relationships and employment prior to the accident and the changes in these fundamental aspects of the plaintiff’s life after the accident.
Accordingly, when evaluating the plaintiff’s case during the initial client meeting and when building the case over the course of the litigation, the plaintiff’s pre-accident health and employment history are critical tools in proving that the plaintiff’s symptoms were caused or contributed to by the motor vehicle accident.
Ideally, a plaintiff will have no significant pre-accident medical history and there will have been no recurrent prior complaints to physicians of muscoskeletal pain, fatigue, headaches or any of the myriad of symptoms associated with these conditions. However, in reality, the majority of plaintiffs (and indeed the majority of individuals) have some pre-existing medical conditions, prior injuries or previous motor vehicle accidents or have recorded complaints of back pain, neck pain, headaches or other muscoskeletal pain prior to the motor vehicle accident. Plaintiff’s counsel should pay careful attention to pre-accident clinical notes and records, as well as the plaintiff’s decoded OHIP summary, which should be obtained and reviewed with the plaintiff prior to the Examinations for Discovery.
When acting for a plaintiff with an extensive pre-accident medical history, the plaintiff’s pre-accident work and social history is critical. If, notwithstanding his pre-accident health conditions, the plaintiff was able to work full-time and to carry on an otherwise independent and productive life, there is a strong and, in our view, cogent argument to be made that the accident is the source of the plaintiff’s disability.
In all cases, but particularly those in which a plaintiff has an extensive pre-accident medical history, counsel should contact the plaintiff’s pre-accident employer as soon as possible. Obtaining information such as a detailed job description and information regarding work hours, particularly overtime hours, is essential. A plaintiff with a strong work history, a highly demanding pre-accident job, a history of continuous employment and no significant pre-accident work difficulties (i.e., performance concerns or conflicts with co-workers) will likely be significantly more credible when describing his or her inability to work at examinations for discovery, mediation or trial. Counsel must obtain all information regarding any pre-accident difficulties in the workplace, which defence counsel may use to infer a lack of motivation to return to work. Plaintiffs’ counsel should obtain statements from direct supervisors or co-workers who are supportive of the plaintiff’s pre-accident work ethic and job performance. These statements are particularly compelling as they are generally viewed as objective evidence, in contrast to statements made by the plaintiff or his family members.
In developing the plaintiff’s personal history, it is also helpful to obtain information regarding pre-accident activities, including sports, travel, family activities, courses and hobbies. By doing so, counsel’s objective is to highlight the plaintiff’s image as a well-rounded individual with an active, full and satisfying pre-accident life. Often, the inability to perform previously pleasurable activities speaks powerfully to the credibility of the plaintiff, as motivation for choosing not to participate in these activities (unlike motivation for choosing not to work) is often more difficult to establish. Further, evidence regarding the plaintiff’s inability to pursue leisure activities will strengthen the plaintiff’s case for non-pecuniary general damages.
In developing this portrait of the plaintiff’s pre-accident history, it is important to speak with friends and family members, whose statements are often eloquent testaments to the changes in the plaintiff’s personality and behaviour since the accident. These individuals can also provide important demonstrative evidence such as photographs or videotapes which show the plaintiff as a previously high-functioning individual. While such evidence is essential at trial, at mediation, the presence of a well-spoken friend or family member who can describe the impact of the accident and the plaintiff’s disabilities on the plaintiff’s life can be a valuable tool in reinforcing the plaintiff’s credibility.
B. Choosing the Right Expert
Plaintiffs with chronic pain, fibromyalgia and chronic fatigue have often seen a plethora of physicians in early attempts to obtain a diagnosis. While a plaintiff may eventually be fortunate enough to come under the care of a competent rheumatolgist, physiatrist or other physician with experience in dealing with these conditions, quite often the plaintiff has simply been referred from one specialist to another, all of whom have concluded that they are unable to determine any “physical cause” of the plaintiff’s symptoms. Eventually, a plaintiff may obtain a diagnosis of chronic pain, fibromyalgia or chronic fatigue and will generally be referred back to her family physician for treatment, often consisting solely of renewal of medications for pain control.
It is essential, particularly given the vast array of medical records and reports which have likely been generated during medical investigations, to have the plaintiff examined for medico-legal purposes by a well-respected rheumatologist or physiatrist, preferably one with a clinical practice and one who has assisted both plaintiff’s and defence counsel, who will be respected for his objectivity and his ability to render an independent and unbiased opinions. However, counsel must note that, while expert reports can be the cornerstone of the case, the report must be relevant to the issues.
A helpful medico-legal report should synthesize the various medical documentation and place the plaintiff’s symptoms within the framework of either chronic pain, fibromyalgia or chronic fatigue. It is essential that the expert be provided with all pre- and post- accident medical records, going back at least two years prior to the accident, as well as all defence medical reports, as well as IME (Independent Medical Exam) reports generated in the accident benefits case. Having read all of the medical evidence will provide your expert with a strong foundation on which to give her evidence at trial and will ensure that reports which do not support disability (usually defence medical, IME reports) are thoroughly reviewed and critiqued. It is also important that the expert’s report be provided to the plaintiff’s treating physician in order that any recommendations may be implemented and to avoid allegations of failure to mitigate by failing to consider treatment recommendations, particularly those made by the plaintiff’s own experts.
Once all medical opinions have been obtained, counsel should arrange for the plaintiff to be assessed by a vocational expert to comment on her future employability. This expert should also be highly qualified and should be provided with all medical records and reports. Further, information from the employer such as a job description or other information regarding pre-accident job duties should be provided to the expert to permit him to comment on the plaintiff’s pre-accident capabilities and the changes in the plaintiff’s abilities following the accident. As in the case of the medical expert, the vocational expert must be advised of the legal test and the legal considerations to be applied; specifically, the expert must be instructed to comment on the plaintiff’s ability to work competitively; that is, for a competitive number of hours per week at a competitive pace. The expert should comment, not only on the plaintiff’s ability to perform job tasks on a discrete occasion but on her ability to perform such tasks on a consistent and regular basis. The issue of the ability to work consistently and competitively is critical in chronic pain, fibromyalgia and chronic fatigue cases, where the plaintiff’s physical tolerances are generally significantly compromised and where symptoms will often vary in intensity from day to day.
C. Preparing the Plaintiff for Examination for Discovery
Due to the subjective nature of the symptoms of chronic pain, fibromyalgia and chronic fatigue, the plaintiff’s credibility is of primary importance. Counsel must therefore thoroughly prepare the plaintiff for Examinations for Discovery by encouraging him to speak as objectively as possible about his symptoms and level of disability. There is sometimes a tendency in such plaintiffs to exaggerate symptoms or to exhibit pain behaviours such as grimacing, sighing and frequent movements in an attempt to convince defence counsel of the pain they feel, which they believe will not be understood if narrated in an objective manner. Counsel should explain to the plaintiff that it will be up to her counsel and the medical experts to convince the trier of fact that she is disabled and that her role is to ensure that she presents as a straightforward, honest and reliable witness.
When dealing with a plaintiff with an extensive pre-accident medical history, it is of particular importance that he not categorically deny pre-accident symptoms when posed to him by defence counsel. Relevant notations in the plaintiff’s pre-accident clinical notes and records and the OHIP summary should be brought to the plaintiff’s attention prior to the Examination for Discovery in order that the plaintiff is provided the opportunity to reflect on his pre-accident history.
The plaintiff should also be advised to think carefully and never to be categorical when asked about his current ability to perform certain activities, as the nature of chronic pain, fibromyalgia and chronic fatigue is such that there will likely be days that the plaintiff has been able to perform such activities. Counsel should explain to the plaintiff that the focus will be on his ability to perform activities consistently and competitively and admitting to attempts to perform certain activities or to having “good days” will help, rather than harm, the case by portraying the plaintiff as honest and forthright. Bogoroch & Associates LLP has prepared a video on A Guide to Examinations for Discovery, all clients are sent put a copy of our DVD.
D. Mediation: Tactics and Strategies
Mandatory mediation is an effective tool which can assist in early resolution of cases. However, it is not in the plaintiff’s best interest to proceed to mediation until her case is ready to settle. Counsel must determine the appropriate time to mediate and must ensure that, prior to mediation, reports and records have been obtained from all treating physicians and expert reports (both medical and vocational) and accounting reports are prepared to increase the chances of settlement.
As stated above, the presence of a well-spoken friend or family member can be important objective evidence of the impact of the accident on the plaintiff. Further, supportive statements from employers and supervisors detailing a strong work ethic and excellent performance records are highly effective in lending credence to the plaintiff’s current complaints. Family photographs, work performance evaluations, awards and strong academic records will present the plaintiff as a highly motivated, successful individual who has sustained significant losses as a result of the accident and as such, has no motivation for choosing to remain in a disabled role.
In addition to building the plaintiff’s case, counsel must be prepared at mediation to address the defence case, which may include Functional Abilities Evaluations and surveillance. It is essential that counsel emphasize that plaintiffs suffering from chronic pain, fibromyalgia or chronic fatigue are not generally invalids; while they may be able to perform tasks over a limited period of time or on “good days”, their ability to perform such tasks competitively is impaired. At best, surveillance can be characterized as a “snapshot” of a brief moment in the life of the plaintiff which does not in any way portray the pain the plaintiff may be experiencing. In chronic pain, fibromyalgia and chronic fatigue cases, pain and fatigue are subjective and cannot be captured by the camera.
Although the diagnoses of chronic pain, fibromyalgia and chronic fatigue present challenges to plaintiffs’ lawyers because they cannot be objectively measured, counsel may still achieve fair and equitable results for clients suffering from one of these conditions. This is accomplished by building a case based on the plaintiff’s entire medical, social and employment history, retaining well-respected experts who are provided with all information required to provide a fully informed opinion and ensuring that the plaintiff is fully prepared for the discovery process. While these cases are unique, challenging and often difficult, counsel who recognize and understand the nature of these conditions and are willing to bear the cost of obtaining costly expert reports will be able to obtain appropriate results for their clients.
The team at Bogoroch & Associates LLP have over 25 years experience representing chronic pain survivors. Should you have questions and to learn more about how we can help, please contact Richard Bogoroch at 416-341-5600. All consultations are free.
The Bogoroch Post is for information only and Is not intended to provide medical or legal advice.