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Chronic Pain…Give them a Reason to Believe

One of the issues our Courts grapple with in cases involving motor vehicle accidents is chronic pain.  In the past, Courts have tended to ignore continuing complaints of pain in cases where there was no objective evidence to support these assertions.  However, in the last 5 or 7 years, Courts have been more willing to recognize chronic pain as a legitimate issue.  If you are suffering from chronic pain there are a number of things you can do to help improve your case. 

Chronic pain is described as disabling, ongoing pain that extends past the period of time expected for full recovery. The problem is, in many cases, the pain and resulting disability is greater than indicated by any objective, independent medical evidence.  In other words, the doctors cannot identify anything specific in terms of a symptom, and judges are understandably reluctant to increase damage awards in situations where they cannot “put their finger” on a reason to. 

To the people who have been injured, the pain is very real, and unfortunately, medical technology has not developed to the point where it can identify the cause in many cases.  Confusing the issue even further is a notion that the origin of the complaints is psychological, not physical.  The reason for this is that chronic pain is commonly associated with psychiatric conditions such as depression.  Again, unfortunately for the people who are hurt, it’s not that difficult to get depressed when you can’t work or sleep well for months on end.

Because of all of these frailties, what most Courts do, absent of any objective evidence, is make an assessment of the claimant’s credibility.   As best they can, judges evaluate whether they think the person is lying or telling the truth and make an award accordingly.  If they don’t believe them, they typically find that they should have recovered within a shorter period of time and award a smaller sum.  If their evidence is accepted, then in the last 5 or 7 years, they are starting to significantly increase the value of the awards granted, sometimes even more than doubling what they would typically grant.  The difference between a witness’ evidence that is accepted and one whose is rejected can easily be in the range of $30,000.00 or $40,000.00.

So what are you to do?  The answer is, help the judge by giving him reasons to believe you.  Obtain your pre-injury medical information to show you haven’t experienced these sorts of problems before and obtain statements from your co-workers, friends and family to the same effect.  If your physician recommends any sort of treatment, including obtaining psychiatric assistance, by all means do so…let the doctors try and heal you.  You should also consider retaining a psychiatrist to give you an opinion that supports your position and rules out things like symptom magnification, falsification or malingering.  Lastly, if you’ve experienced depressive episodes in the past in response to stressful situations, be realistic in your settlement expectations.  If you have a pre-existing condition, you’re not going to receive as much as a person who doesn’t.

Chronic pain issues have plagued our Courts for some time now.  The important thing to remember is that the judge wants to have reasons to believe you.  If you can come up with a few, then you will vastly improve your chances of a successful settlement or trial. 

By Tom McCartney
November 14, 2001