Chronic Pain, Fibromyalgia and Chronic Fatigue Litigation: Part 2

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 marshaling the evidence to support a client’s case, the plaintiff’s counsel must make every effort to establish a contrast between the plaintiff’s health, activities, social relationships, and employment before 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 building the case throughout 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. There will have been no recurrent prior complaints to physicians of musculoskeletal pain, fatigue, headaches, or any of the myriad of symptoms associated with these conditions. However, in reality, most plaintiffs (and indeed most 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 musculoskeletal pain before 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 before 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 are critical. Suppose notwithstanding his pre-accident health conditions, the plaintiff could work full-time and carry on an otherwise independent and productive life. In that case, there is a strong and, in our view, convincing 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 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 defense counsel may use to infer a lack of motivation to return to work. The plaintiffs’ counsel should obtain statements from direct supervisors or co-workers who support 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 the plaintiff or his family members’ accounts.

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, the 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 plaintiff’s credibility. The motivation for choosing not to participate in these activities (unlike motivation for choosing not to work) is often more challenging 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 essential to speak with friends and family members, whose statements are often eloquent testaments to the plaintiff’s personality and behavior changes since the accident.

These individuals can also provide crucial 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 accident’s impact and the plaintiff’s disabilities on the plaintiff’s life can be a valuable tool in reinforcing the plaintiff’s credibility.

Choosing the Right Expert

Plaintiffs with chronic pain, fibromyalgia, and chronic fatigue have often seen many physicians in early attempts to obtain a diagnosis. While a plaintiff may eventually be fortunate enough to come under the care of a competent rheumatologist, physiatrist, or another physician with experience in dealing with these conditions, quite often, the plaintiff has 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 to her family physician for treatment, often consisting solely of renewing 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 clinical practice and one who has assisted both plaintiff’s and defense counsel, who will be respected for his objectivity and his ability to render an independent and unbiased opinion. However, counsel must note that, while expert reports can be the cornerstone of the case, the information 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. The expert must be provided with all pre- and post-accident medical records, going back at least two years before the accident, all defense medical reports, and 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 for giving her evidence at trial and ensuring that reports that do not support disability (usually defense medical, IME reports) are thoroughly reviewed and critiqued. It is also essential that the expert’s information be provided to the plaintiff’s treating physician so that any recommendations may be implemented and avoid allegations of failure to mitigate by failing to consider treatment recommendations, particularly those made by the plaintiff’s 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 plaintiff’s changes 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 functions on a consistent and regular basis. Working consistently and competitively is critical in chronic pain, fibromyalgia, and chronic fatigue cases. The plaintiff’s physical tolerances are generally significantly compromised and where symptoms will often vary in intensity from day to day.

Preparing the Plaintiff for Examination for Discovery

Due to the subjective nature of chronic pain symptoms, 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. Sometimes, such plaintiffs tend to exaggerate symptoms or exhibit pain behaviours such as grimacing, sighing, and frequent movements to convince defense counsel of the pain they feel, which they believe will not be understood if narrated objectively. Counsel should explain to the plaintiff that it will be up to her counsel and the medical experts to convince the trier 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 denies pre-accident symptoms when posed to him by defense 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 before the Examination for Discovery so 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 be categorical when asked about his current ability to perform certain activities. The nature of chronic pain, fibromyalgia, and chronic fatigue are such that there will likely be days when 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 movements consistently and competitively. They admit to attempts to perform specific actions or have “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.

Mediation: Tactics and Strategies

Mandatory mediation is a useful tool that can assist in the early resolution of cases. However, it is not in the plaintiff’s best interest to proceed to conciliation until her case is ready to settle. Counsel must determine the appropriate time to mediate and ensure that, before mediation, reports and records have been obtained from all treating physicians and expert reports (both medical and vocational). Accounting reports are prepared to increase settlement chances.
As stated above, the presence of a well-spoken friend or family member can be substantial evidence of the accident’s impact 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 vital academic records will present the plaintiff as a highly motivated, successful individual who has sustained significant losses due to the accident and 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 defense case, which may include Functional Abilities Evaluations and surveillance. Counsel must emphasize that plaintiffs suffering from chronic pain, fibromyalgia, or chronic fatigue are not generally invalids; At the same time, they may be able to perform tasks over a limited period or on “good days” their ability to perform such tasks competitively is impaired. At best, surveillance can be characterized as a “snapshot” of a moment in the plaintiff’s life, 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.

Conclusion

Although the diagnoses of chronic pain, fibromyalgia, and chronic fatigue present a challenge 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 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 tricky, counsel who recognizes and understand the nature of these conditions and are willing to bear the cost of obtaining costly expert reports will get relevant results for their clients.

The team at Bogoroch & Associates LLP has over 25 years of experience representing chronic pain survivors.