How to defend chronic pain cases

David Cameron recently highlighted the special difficulties and cost to insurers of dealing with whiplash claims. But there is another form of claim that has become increasingly prevalent over the last decade and at considerable cost to insurers: chronic pain following road traffic trauma.

An initial and fundamental problem is diagnosis. A myriad of conditions fall under the umbrella term of chronic pain, and such conditions can often coexist and have differing names for the same condition.

An orthopaedic surgeon dealing with the consequences of a severely fractured leg following an accident may note an individual has chronic pain. But here there is a clear organic explanation for the continuing pain. This is to be contrasted with the more difficult case involving an individual with alleged ongoing pain for which no obvious physical explanation can be found. The most commonly encountered conditions are:

1. Chronic regional pain syndrome (CRPS). This has been subdivided into two. Type 1, which is also known as reflex sympathetic dystrophy and Sudek's atrophy, and type 2, which was previously known as causalgia. In type 2 there is evidence of obvious nerve damage, but this is not so with type 1.

2. Fibromyalgia. The 1990 American College of Rheumatology characterised such a condition as widespread pain within the body, together with pain in at least 11 of 18 designated tender points upon digital palpation.

3. Somatoform disorder. Essentially a mental disorder characterised by physical symptoms but with no organic explanation.

These latter conditions present unique difficulty in that diagnosis may rely entirely upon the subjective account of pain by the patient and the interpretation put on that alleged pain by the examining expert.

Sometimes by the time a patient brings a claim for compensation, following an accident, their chronic pain condition will have been diagnosed by their treating clinician and the choice of which expert to instruct within court proceedings will be clearer. However, this is often not the case, and the choice of what type of expert to instruct is not necessarily straightforward.

Causation

Chronic pain is often not the consequence of the trauma of an accident. Fibromyalgia, for example, is the second most common rheumatologic disorder in several industrial countries, affecting between two and four per cent of the population (Jacobsen et al, 1992, and Wolfe et al, 1995). The prevalence of the condition increases with age and females are between four and eight times more likely to be affected than males (Raspe, 1993, and Wolfe, 1995). An individual who has suffered from, for example, irritable bowel syndrome, lupus or rheumatoid arthritis in the past is statistically more likely to be prone to the development of certain types of chronic pain. The fact that a pain condition arises post-accident does not therefore mean that the cause is not constitutional in nature.

There is also considerable medical dispute as to whether trauma caused by a road traffic accident can ever lead to the onset of certain chronic pain conditions. Tischler and his colleagues prepared a paper which casts significant doubt on whether there can be any association between an individual who sustains a whiplash injury in an accident and then alleges they have suffered fibromyalgia as a consequence (J Rheumatol, 'Neck injury and fibromyalgia '“ are they really associated?', 2006).

Even if it is accepted that, in principle, it is plausible that chronic pain can follow a road traffic accident, it is also important to then consider when the condition arose.

For there to be any possibility of a causative link between accident and subsequent fibromyalgia, it is generally accepted there has to be a close temporal link ('Fibromyalgia after motor vehicle collision: evidence and implications', McClean). The pain condition would be expected to develop within 'weeks to several months' (Wolfe, 1994).

Thus, if you are presented, as I was recently, with a claim where the individual alleges the development of fibromyalgia some years post-accident, causation cannot be made out. As my pain expert in that case confirmed, there is no such thing as delayed onset fibromyalgia.

However, the common response to an allegation that causation is insufficiently temporally close to an accident is for a claimant to argue that the pain condition has existed since the accident, it has just not been diagnosed as such. A claimant will point to the special difficulty in diagnosing such conditions and will argue that inevitably it is not until they are eventually referred to a specialist, sometimes years later, that the diagnosis is made out.

Fraudulent claims following road traffic accidents are increasing and chronic pain cases of this sort offer the dishonest litigant an opportunity for considerable damages. The fact that objective symptoms are usually lacking means that an expert, and ultimately a court, may be dependent upon the claimant's subjective account of pain. Fraudulent litigants are increasingly savvy and can easily add credence to their account by researching their alleged condition on the internet.

Key considerations

Having identified some of the difficulties involved, what are the key areas to consider when defending such claims?

1. Choice of expert

When confronted with a claimant already diagnosed with fibromyalgia or CRPS, the preferred expert is a rheumatologist. Claimants will frequently instruct a pain management expert. While such an expert may be qualified to comment upon the treatment of the condition, I question whether they are to comment upon causation and diagnosis.

However, some psychiatrists, such as Dr Leigh Neal, have suggested that fibromyalgia is a psychiatrically based condition (The Psychiatrist, 'Fibromyalgia '“ Psychiatrists should now be picking up the baton', 2011). But for now that appears to be a minority view.

With a diagnosis of somatoform disorder, the preferred expert will be a psychiatrist.

Where there is an absence of diagnosis at the time of presentation of a claim, it may be that a combination of these experts has to be instructed.

Whoever is instructed must carry out not just a physical examination but also a thorough and forensic evaluation of all the claimant's medical records. Too many experts simply assume causation is made out without a proper examination of the available records.

2. Consideration of records

It is crucial that all of the claimant's medical records are collated. Records should include not just the more obvious records, such as GP and hospital, but also less obvious records such as physiotherapy, osteopathy and DWP. If only selected records are considered, they may present a misleading picture. For example, a claimant may fail to see his GP for many months post-accident, preferring to see a chiropractor instead. If only the GP records are considered, it may be wrongly assumed that causation is not made out.

Medical records need to be considered by both you and your expert. You will be looking for: (i) any indication that the pain may have developed pre-accident and is constitutional in nature, or alternatively sign posts that the claimant was a candidate to develop such a condition. A claimant with, for example, pre-existing IBS, might be regarded as more plausible; (ii) a close temporal association between the accident and the alleged chronic pain developing; and (iii) some objective evidence of the condition. Many of the conditions have no objective evidence, some do. The National

Institute of Neurological Disorders and Stroke (NINDS) lists some potential symptoms for CRPS, including burning skin, increased skin sensitivity, change in skin colour and temperature and a change in nail and hair growth pattern. However, a claimant may or may not develop some or none of these symptoms.

3. Surveillance

With a suspected fraudulent claimant, surveillance is key. Extensive surveillance is required over as wide a period as possible. Clearly a genuine claimant should exhibit the same degree of pain, and consequential lack of mobility, in both guarded and unguarded moments on the surveillance. However, experts generally agree that these chronic pain conditions may wax and wane. This allows a claimant to explain away a short period of surveillance as a good day. Extended surveillance over a protracted period makes such an argument less credible.

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