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Monday January 21, 2019

Invisible Injuries - Chronic Pain and Depression

Authored by: David S.R. Parker Posted in: Personal Injury

We often see clients who suffer from severe chronic pain, depression and anxiety conditions.  In the context of a personal injury claim (motor vehicle collision, slip and fall, assaults etc.) or disability benefit claims, chronic pain and depression/anxiety present special difficulties in proving the existence of such conditions and the relationship between the event and the subsequent chronic pain or psychological condition.  It is impossible to accurately predict when such conditions will present themselves or how they will impact each person.  These types of claims are different from fractures or brain injuries, but the result can be very similar – inability to function at home, impact on your daily activities, unable to work, or loss of social and recreational activities.

These are invisible injuries and are difficult to prove.  There are no x-rays, CT scans or MRI tests that can identify or measure the amount of pain you experience or the severity of the depression or anxiety disorder you experience.  All that is left are your subjective complaints.  It is an ongoing struggle to explain to family, friends, medical advisors and lawyers the nature of your injury and how it impacts your life.

Chronic pain and depression symptoms are difficult to describe, and many people will have difficulty understanding, accepting or sympathizing with your “alleged” condition.   Insurers rely on that fact to defend claims – often the insurer defending a claim will file a Jury Notice and force a claimant to persuade a civil jury panel that the complaints are real and were caused by the incident or event.

Insurers also know that in chronic pain and depression cases, the most important factor is the credibility and “believability” of the claimant – if a Judge or Jury do not believe your claims, you will not be successful in advancing the claim.  There are many tactics employed by insurers to gather evidence which can be used to challenge credibility.  Those include surveillance evidence and videos which suggest you may be exaggerating/inventing your injury or pain/depression condition – the favorites are videos taken while shopping, driving, doing yard work or involvement in recreational activities.  Aggressive discovery tactics are often used by defence counsel to uncover inconsistent evidence or testimony from you.

Independent Medical Examination (IME) Reports by defence-oriented medical experts are often crucial to the success or failure of a claim.  A negative report denying or minimizing a claim must be countered with strong expert medical opinion put forward by your own legal team.  A defence IME is like a second discovery examination (conducted by the medical expert) who will have reviewed all the medical documentation in your file, will know all your pre-existing conditions and prior complaints, and who will ask pointed questions about that history. The IME will try to allude that you were attempting to “hide” past complaints or inconsistent statements.  Even a couple of minor mistakes or omissions can be relied on by the defence expert to conclude you are not credible and that your complaints are not real.

It is crucial in chronic pain and depression cases that the claimant be very careful in any statements given, in discovery examination and in responding to independent medical examination questions.   The claimant must review all the medical evidence available prior to being questioned or examined and make sure the answers given are accurate and correct.  Detailed preparation prior to discovery or IME examination, conducted by an experienced legal team working on your side is absolutely essential to the success of your claim.

If you have any questions regarding chronic pain and depression symptoms subsequently as a personal injury claim, please contact one of our experienced personal injury lawyers.

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