February 28, 2015

SABS Update – Courts Confirm That Not All Chronic Pain Sufferers Are Faking

Recent superior court decisions offer some wise words and common sense logic on the subject of chronic pain, specifically, in the context of threshold motions. The important conclusion is that chronic pain is a real impairment, capable of the same effects on a person as any other impairment.

In Ontario, a person injured in a motor vehicle collision may not sue most defendants for pain and suffering damages unless the injured person can establish on a balance of probabilities standard that he or she suffered a permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function. This is referred to as the threshold test. Historically, it has been difficult for chronic pain sufferers to meet the threshold as their complaints are primarily subjective and open to accusations of malingering.

In Maxwell v. Luck, 2014 ONSC 7179, the defendants brought a threshold motion. The plaintiff, an exotic dancer, claimed to suffer from chronic neck and upper back pain and headaches which prevented her from returning to work. The defendants, relying on the opinion of medical expert, Dr. Michael Ford, suggested that there was no objective mechanism causing pain, therefore there could be no valid complaint. In finding that the plaintiff had met the threshold, Justice Howden evaluated the testing performed on the plaintiff by both the defence and plaintiff medical experts. The plaintiff medical expert, Dr. Brian Alpert, assessed range of motion and tightness and tenderness to touch. Conversely, Dr. Ford performed what Justice Howden referred to as a “very cursory examination” which did not include palpation such that tautness and ropiness in the plaintiff’s muscles and ligaments could be felt. Justice Howden concluded that although less obvious than a broken bony mechanism, a musculo-ligamentous or tissue/nerve trauma and chronic pain may meet the threshold and did so in that case.

Justice Firestone recently dealt with a threshold motion in Malfara v. Vukojevic. 2015 ONSC 78. The plaintiff, a plumbing apprentice, claimed to suffer from chronic neck and back pain. There was conflicting medical evidence regarding the plaintiff’s soft tissue injuries, and it is notable that the plaintiff returned to work without modification and became a fully licensed plumber. Justice Firestone found that while the plaintiff suffered a permanent impairment of an important function, his back, the impairment failed to have had a “significant effect” as would be required for him to meet the threshold. Justice Firestone provided the following useful guidance on chronic pain cases at paragraph 23:

“It is important to recognize that it is ‘the effect of the injury’ on the person and not the ‘type of injury’ or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the manner in which the plaintiff has been impacted. The threshold determination is to be done on a case by case basis.”

The overarching theme, articulated by both Justice Howden and Justice Firestone, is that regardless of the type of injury or whether the complaints are primarily objective or subjective, the effects of the injury must be fully evaluated. The strategy of some defence medical experts, to categorically dismiss chronic pain cases, is flawed and unacceptable. Chronic pain sufferers should not be held to a higher standard of proof nor their credibility subject to greater scrutiny than someone with a broken bone.

Moving forward, the assessments, or lack thereof, done during medical evaluations in chronic pain cases may expect to receive critical review. If a complaint of pain is made, there is often a test to determine or attempt to determine its validity. Experts who fail to conduct these follow-up tests will have difficulty establishing that a fulsome evaluation was conducted, a vulnerability which may be brought out on cross-examination. These decisions lend hope that the days of dismissive broad strokes evaluations of chronic pain sufferers are over, and rightly so.

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