By Richard Bogoroch and Tripta Chandler
May 18, 2004
I. Introduction
Chronic pain, fibromyalgia and chronic fatigue cases present unique challenges for plaintiff’s counsel whose task it is to prove disability, whether within the context of a tort or statutory accident benefits case or when claiming entitlement to long-term disability benefits. The primary symptoms associated with these conditions are pain and fatigue. These symptoms are largely subjective experiences and, as such, the management of cases involving plaintiffs who suffer from these conditions pose difficulty for personal injury practitioners accustomed to relying upon medical assessments to determine pain and quantify damages.
The difficulties inherent in these cases are the result of several factors: (1) widespread skepticism of the existence of these conditions within the medical community; (2) onset of severe and disabling symptoms even following a relatively minor traumatic incident; and (3) the absence of “objective” physical findings to substantiate the plaintiff’s symptoms and resultant disability.
The challenge posed to plaintiff’s counsel is to develop the plaintiff’s case using highly qualified and experienced experts and to present the case in a manner which demonstrates powerfully and convincingly the plaintiff’s disability. To do so, plaintiff’s counsel must understand the nature of these conditions and marshall the evidence necessary to establish the legitimacy of the plaintiff’s condition. Further, counsel must be aware of the challenges to be faced and must be able to neutralize the impact of the defence experts and, ultimately, to persuade the trier of fact to award the plaintiff fair compensation for his or her losses.
In this paper, approaches to chronic pain, fibromyalgia and chronic fatigue cases will be discussed from the perspective of a plaintiff in a tort case arising out of a motor vehicle accident.
In a motor vehicle accident case, the difficulties in proving disability are further complicated by issues of causation. Individuals who develop chronic pain, fibromyalgia or chronic fatigue following motor vehicle accidents are frequently involved in relatively minor collisions with limited property damage. Further, their “objective” injuries are often limited to soft-tissue or WAD injuries. In addition to marshalling expert evidence which is objective and persuasive, the challenge posed to plaintiff’s counsel is to create a historical framework, based on the plaintiff’s own pre-accident history, in which the plaintiff’s pre-accident qualifications, achievements and work history are invoked to build a framework for establishing credibility.
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Managing the Plaintiff's Chronic Pain, Fibromyalgia and Chronic Fatigue Case