Chronic pain in injury compensation claims
Pain UK, a charity which supports people living with pain conditions, estimates that there are currently 14 million people across the UK living with chronic pain. The resulting impact of this on society and on the economy cannot be underestimated.
What is chronic pain? In simple terms, chronic pain is pain which has been continuous for a long period and which is beyond that which can be explained by other physical injuries or conditions. There are different types of chronic pain disorders and they can affect different parts of the body. The most common type of chronic pain in the UK is lower back pain.
The issue of chronic pain can arise in injury compensation claims and it is important to be aware of this so that the claim is not under settled. I previously acted for a woman who sustained whiplash type injuries in a road traffic accident. She was seen by an orthopaedic expert who concluded that her symptoms would likely resolve within a year of the accident. Unfortunately, this was not the case and she went on to develop a pain syndrome which became chronic and which stopped her from working. I instructed a pain management expert who recommended several different treatment programmes and therapies. Had her case been settled following receipt of the first report, the cost of that treatment would not have been included in the settlement and her claim would ultimately have been under-settled.
However, chronic pain issues can also be fairly controversial in injury compensation claims with insurers often disputing the veracity of the chronic pain. A further complication is that chronic pain conditions can be difficult to diagnose and to categorise and this is the case particularly with Complex Regional Pain Syndrome (CRPS). This condition usually results in the sufferer experiencing extreme and debilitating pain. It most commonly occurs after an initial injury and is generally confined to the injured area of the body but it can spread. CRPS is still poorly understood which makes it difficult to diagnose and treat. Symptoms of CRPS can include changes to the skin in the affected area, for example colour change and mottling, and also abnormal hair and nail growth. The pain experienced is often described as a burning or stabbing pain and altered sensation is usually experienced in the affected area. Flare ups of pain can last for hours or days at a time. In addition, whilst some sufferers will find that their symptoms gradually resolve, others find that CRPS is experienced for many years with no end in sight. Last month, the Guardian ran an article on living with CRPS which offers some insight in to the daily struggle which sufferers experience.
The above can make it difficult in compensation cases both to prove that the injured person is suffering with CRPS and also to quantify the loss arising from it. Long term pain can also lead to depression and other psychiatric illness and therefore there is commonly an interplay between pain management expert evidence and psychiatric expert evidence.
How the chronic pain is categorised can also affect the chances of recovery and consequently, the value of the claim. I recently acted for a young woman who sustained injuries to both arms in an accident. She required several surgeries to her arms and during the course of the treatment, she developed signs of CRPS in both arms and hands. She experienced colour change in her arms and abnormal hair growth. During a flare up, her hands and arms became acutely sensitive and she could not bear to touch anything. The pain she experienced was extreme and debilitating. I arranged for her to be seen by a pain management expert who concluded that on balance, she was suffering with CRPS. As my client had been suffering with the pain for some time, the prognosis was poor and the expert recommended spinal cord stimulation.
Spinal cord stimulators essentially apply electrical fields to the spinal cord. Through this, the pain messages which the body sends to the brain are altered with the result that pain is masked if the treatment is successful. However, the treatment is invasive and it is expensive on a private basis. I also had my client seen by a consultant psychiatrist who considered that she was depressed and had an anxiety disorder as a result of the accident and of living with chronic pain. Whilst therapy was recommended, the prognosis was poor unless her pain was treated successfully.
The insurers also had my client seen by a pain management consultant and a psychiatrist. However, their pain expert disagreed with the diagnosis of CRPS and considered that my client was suffering from a somatoform disorder. A somatoform disorder is termed as a person suffering and reporting pain (amongst other symptoms) which cannot be traced to any identifiable physical cause. Therefore, the cause of the chronic pain is said to be psychological rather than physical. The insurers’ pain management and psychiatric experts were of the view that my client was likely to make a good recovery if she underwent sessions of specialist cognitive behavioural therapy and that therefore the prognosis was good. The value of the claim was therefore much less from the insurers’ perspective as it was their experts’ view that my client would not require invasive treatment and would be able to return to work following therapy.
It can therefore be seen how the categorisation of a pain disorder by the relevant experts can easily affect the treatment recommended, the prognosis for the future and ultimately the value of the claim. It follows then that it is very important that this element of the claim is properly explored with appropriate expert evidence and that treatment is costed and claimed accordingly.