Recognising chronic pain

The Ministry of Justice’s personal injury portal scheme has put lawyers under huge pressure to turn around cases quickly and cheaply. But chronic pain cases, which evolve slowly and insidiously, risk getting caught up in the minor injuries’ conveyor belt and not be recognised. In the rush for cost cutting and speed, many of these high value claims are overlooked leaving the claimant undercompensated.

In 2009/10 nearly 700,000 motor insurance claims were referred to the compensation recovery unit (CRU). Seventy per cent of these were whiplash injuries. This confirms what personal injury practitioners already know, namely that the vast majority of cases brought are in respect of low level injuries from minor accidents which settle quickly and quietly for a modest level of damages and costs. These now find themselves within the RTA portal scheme.

However, chronic pain syndromes evolve over time. What would initially appear to be a straightforward minor injury that would appear to be perfectly suitable for the MoJ portal and would settle within a matter of months, becomes far more complex with far higher damages.

The dilemma for the lawyer is in recognising it, because it rarely presents itself early on.

Growing awareness

Since Bennett v Smith in 2003, it has been accepted that a minor injury can trigger the chronic pain condition fibromyalgia. Almost a decade on, numerous other cases have since been reported and the condition has been recognised, together with other chronic pain conditions, in the Judicial Studies Board Guidelines for the assessment of General Damages in Personal Injury cases as being capable of being triggered by trauma.

Cases involving chronic pain conditions have become far more frequent over recent years. The courts have shown that they are increasingly prepared to accept that an initial minor trauma can lead to painful and disabling conditions which result in large compensation claims.

The knowledge and understanding of chronic pain conditions is developing but still has a long way to go. The ‘Pain Summit’, was held in Westminster in 2011 to raise awareness of the problems faced by people suffering from chronic pain conditions. Primary medical practitioners are becoming more sympathetic to the idea that people can have chronic pain without any organic cause instead of the old fashioned approach which was to dismiss the condition as being ‘all in the mind’.

Despite this increase in awareness, there are still many medical practitioners who do not accept that some people have abnormal pain responses and as a result they are not prepared to diagnose a chronic pain syndrome. This can be for a variety of reasons but often has at its source the fact that many GPs simply have never received any training as to chronic pain. It is not uncommon for a claimant suffering from fibromyalgia to go undiagnosed for months or even years.

By way of example, despite the growing awareness in the medical community, the time for a chronic pain condition to be diagnosed remains drawn out at 2.2 years in Great Britain.

In portal cases, the initial medical report concentrates on the initial injury, usually diagnoses a soft tissue injury and almost invariably gives an optimistic prognosis. There are no witness statements from the claimant setting out what the continuing symptoms are and the legal practitioner often relies on the medical report which is usually from a GP with limited knowledge of chronic pain conditions.

Making enquiries

This means that unless the legal practitioner is aware of the potential for a minor injury morphing into a chronic pain condition, by the time that the diagnosis is made, the case has already been concluded through the portal scheme leaving the claimant under compensated and the legal practitioner potentially facing a professional negligence action.

So lawyers dealing with minor trauma cases must be made aware that even relatively trivial injuries can develop into chronic pain cases. It is necessary to appreciate that this may not have been picked up by the treating doctors or the reporting doctors. Often claimants themselves are unsure as to why the condition is developing and they struggle on expecting to recover in line with the advice from their medical advisers

It must be the responsibility of the legal profession to train itself so as to be able to recognise the phenomenon of chronic pain cases. It is not enough to simply rely on the claimant’s approval of the initial medical report. In almost every chronic pain case there will be an initial optimistic prognosis. The legal practitioner needs to look beyond this and ascertain what is really happening.

The lawyer must make enquiries of the claimant as to how the symptoms are settling before the case settles. If there does not appear to be a recovery or if there are other symptoms manifesting themselves, even though they do not seem to be related to the initial trauma, then alarm bells should be ringing and the matter should be investigated further. Systems must be put in place to make sure that these claimants do not slip through the net.

Even in this brave new world of drastically reduced fees, there is no substitute for the lawyer speaking to the claimant to ascertain whether this is a straightforward minor injury or whether it could be developing into something more sinister.