After decades of representing Plaintiffs in personal injury claims, I believe I can safely say there is no more difficult case to take to trial than a case involving Chronic Pain. Just hearing the words “Chronic Pain” can bring a smile to the insurance company’s lawyer, for he or she knows the problems facing the Plaintiff. Chronic Pain is known as an “invisible injury” meaning that in most cases there is no scan, x- ray, ultrasound, or any other objective test to diagnose and demonstrate the injury or provide any evidence for the cause of the pain. The strongest evidence of the pain a victim is suffering comes from the sufferer. And while the pain can be devastating and result in serious disability, proving the pain and suffering in a courtroom comes down to 3 basic issues and they are in order of importance: credibility, credibility, and credibility.
The simple fact is that for the Plaintiff to succeed in a Chronic Pain case, the judge or jury must believe the Plaintiff. For that reason, when an insurance company goes to court on a Chronic Pain case, what the insurance company tries first and foremost is the Plaintiff’s credibility. If the defence can show that the Plaintiff is not credible, then for all intents and purposes, that is usually the end of the case. And when trying the Plaintiff’s credibility, the most powerful weapons an insurance company has are surveillance and the Plaintiff’s medical history.
By observing, photographing, and videoing the Plaintiff’s day-to-day activities, the insurance company will obtain a visual record of what the Plaintiff is capable of doing. The company can then compare what this surveillance shows to what the plaintiff has told his or her doctors. For example, a Plaintiff may say to the doctor “I can only stand for 20 minutes” meaning that after 20 minutes they get fatigued or their legs get sore. If there is surveillance showing the person walking in a mall for an hour or more such surveillance can be extremely damaging.
Even greater damage can be done on examination for discovery, where the Plaintiff, as part of the action, must answer questions under oath. Very often the insurance company’s lawyer will have a list of all the activities of the Plaintiff captured on surveillance. The lawyer will then ask the Plaintiff if he or she is capable of doing each activity. Every response which contradicts what the surveillance shows strengthens the defence by damaging the Plaintiff’s credibility.
To avoid this problem, my advice is to ensure that all information given by my client to treating doctors is accurate. When answering questions on discovery my client should be absolutely sure what activities he or she has done.
Prior Medical History
Before examining the Plaintiff for discovery, the insurance company’s lawyer will request and, in most cases, will receive the Plaintiff’s medical records for the past 3 to 5 years. The Plaintiff will then be asked about his or her prior health. The answer often one hears is “excellent “. When asked if there were any issues with neck or back pain or prior injuries many people forget that they did have such a complaint in the past and deny any problems. In most cases, the plaintiff is not intending to be untruthful, they just forget about the sore back or neck. The problem is that this can be made to appear as if the Plaintiff is attempting to hide something, and this can have a very negative impact of the Plaintiff’s credibility.
Credibility is definitely the most serious challenge facing a Plaintiff in a Chronic Pain case. But it is only one of the factors which make Chronic Pain cases difficult. There are many other hurdles to overcome particularly with a jury which can find it difficult to understand how an injury with no objective findings can cause so much pain.
I have always said that it is the client and not the lawyer who wins or loses the case.
If the Plaintiff presents as credible and likeable, the outcome of the case, while never guaranteed, is greatly improved. The lawyers at Singer Kwinter have the experience to help claimants successfully pursue their claim against an insurance company. They can work together with medical professionals to support their patients and provide the legal help that they may need. Singer Kwinter has been handling Personal Injury cases for close to 50 years.
Written by Alfred Kwinter
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