01/09/2017
Insurers have had to struggle through the complexity and uncertainty surrounding chronic pain cases for some considerable time.
However, there are now a variety of defined syndromes/disorders with their own specific diagnostic criteria. But whilst there is a greater understanding of the conditions, there is still considerable uncertainty — even amongst medical experts — about what causes them. It follows that there is a diverse range of opinion as to how they should be treated.
If medical professionals do not really understand these conditions, then what chance do insurers, lawyers or the judiciary have? This is problematic, as the claims can result in very significant awards/settlements.
Recognising chronic pain cases
The starting point is accepting that these conditions are real and that they can result in significant functional limitations for those suffering from them.
It can be difficult to identify cases such as these, given the slow-burn effect of the symptoms, as opposed to the more obvious acute injuries seen in claims for:
The subjective nature of the symptoms also gives rise to a problem, as they are inevitably open to a degree of scepticism.
Where there is a significant collision and an immediate, acute life-changing injury, then the insurer will — in all probability — recognise from the outset that they are dealing with a valuable claim. Even if there are liability issues, the reserve will be set accordingly and the claim handled in a certain way.
More often than not, it is some considerable time post-accident that the chronic pain diagnosis is made and at that stage the reserve can leap significantly. That is always a bitter pill for an insurer to swallow.
Progression of chronic pain cases
A chronic pain case may start as a soft tissue injury claim, but the claimant will not recover in line with the standard prognosis period or they may initially show some signs of recovery but then plateau. Often they may start to report that their problems are deteriorating.
At this stage, the defendant insurer is often in the dark. The Claim Notification Form (CNF) reads like a normal whiplash claim, but no medical evidence is served and often nothing is forthcoming from the claimant’s solicitors. The claimant is reporting to their legal representative that they are not improving.
In our experience, it is an unfortunate side effect of a clear diagnosis of chronic pain that it then becomes something of a self-fulfilling prophecy. After such a diagnosis, it is unlikely that the claimant will then show any signs of improvement or any increase in functional capacity, certainly not without treatment. That is particularly so if they are told that they will never recover and can only be provided with ways of helping them cope with their pain.
Diagnosis of chronic pain syndromes
Although each disorder has its own specific symptoms and diagnostic criteria, there is a great deal of overlap, so a specific diagnosis can be difficult (and controversial). The general theme is the presence of subjective pain without any clear organic basis.
Treatment/rehabilitation
By definition, these disorders do not always emanate from an organic cause. They are therefore difficult to treat in the sense of resolving the problem completely.
Early rehabilitation is crucial, with the aim of stopping the pain circle before it takes hold. Conventional treatment, such as physiotherapy, should be provided in the first instance.
Investigating chronic pain cases
Perhaps alarm bells should ring if, as an insurer, you have received a CNF but no medical evidence within 12 months. Claimant lawyers typically wish to turn around the claim quickly and cost effectively if it is a straightforward whiplash claim. The fact that the case is not progressing is enough to indicate that there is potentially something amiss.
As pain disorder cases are largely related to subjective pain perception, early covert surveillance can be effective, as can claimant profiling and social media checks. An early, well-pitched Part 36 offer can also save a great deal in costs.
More often than not, there are significant causation arguments resulting in a host of experts being instructed on both sides. That of course leads to significant costs being incurred.
As always, choosing the right expert in terms of discipline, expertise and medico-legal experience is vital. It is also essential that full disclosure of all relevant records are obtained, so that a full history can be investigated.
Comment
Chronic pain cases are complicated and potentially expensive. Early recognition of a potential pain case can pay dividends.
It is important to have an identification and referral process in place so that the cases can be recognised and dealt with accordingly.
If the case cannot be concluded swiftly, then early:
are of paramount importance.
Read other items in the Personal Injury Brief - September 2017
