Claims assessors are often confronted with bodily injury cases wherein the claimant or plaintiff alleges ongoing symptoms of pain well outside of the time frame in which the injury would normally be expected to have resolved. In some cases, medical imaging and physician examinations may show that the injury healed well, and there are few objective reasons why the plaintiff should be continuing to complain of pain symptoms. These circumstances present different possible scenarios. The plaintiff may be exaggerating complaints of pain for the purpose of secondary gain. Alternatively, the plaintiff’s experience of pain may be genuine despite the unusually prolonged duration of the reported symptoms or the absence of objective signs of injury. In the Canadian courts, a plaintiff’s ability to prove that he or she suffers from chronic pain has the potential to result in a significant damages award.
This paper is intended to provide claims handlers with an overview of the legal principles that a Court may apply when considering allegations of chronic pain. The paper reviews the potential quantum of non-pecuniary damages if the plaintiff proves the allegations, and provides suggestions for identifying the cases that may pose a tangible risk of a significant damages award. The paper’s focus is cases involving chronic pain conditions where there are minimal objective physical findings to support the plaintiff’s allegations of ongoing pain.
A. Legal Principles
In his paper entitled “Defining Chronic Pain and Disability”, Physiatrist Dr. Hugh Anton explains that “In general use, the term chronic pain syndrome refers to pain that has lasted more than six months and reflect the complex interaction of physical, psychological, emotional, social and cultural factors. Implicit in the terms is the concept [that] psychological factors are complicating the presentation of pain.” The courts have accepted that a chronic pain condition has both physical and psychological elements: Mohan v. Khan, 2012 BCSC 436 (“Mohan”).
The psychological aspect of the diagnosis presents a particular challenge for the defence of a personal injury claim. The outcome may rest with the ability of the defence to challenge the plaintiff’s credibility if the defence seeks to prove that factors other than a genuine experience of pain motivate the plaintiff’s complaints. In Mohan, the Court framed the analysis in the following way:
[160] The diagnosis of chronic pain disorder is largely subjective in nature and based on the plaintiff’s description of her condition to the medical practitioners supported by some testing. The expert evidence is that this condition cannot be objectively confirmed. If the plaintiff’s account of her condition as a result of the accident is not convincing then the hypothesis upon which the expert opinions are based is undermined.
Mr. Mohan alleged that he suffered from a chronic pain disorder arising from soft tissue injuries that remained symptomatic at the time of trial 4 ½ years post-accident. The Court turned to the principles for assessing psychological injury that were originally articulated in Maslen v. Rubenstein (1993), 83 BCLR (2d) 131 (C.A.), and later summarized in Yoshikawa v. Yu, [1996] 21 B.C.L.R. (3d) 318. In Mohan, the Court restated these principles:
- The plaintiff must establish that the pain, discomfort or weakness is “real” in the sense that the victim genuinely experiences it.
- The plaintiff must establish that his or her psychological problems have their cause in the defendant’s unlawful act.
- The plaintiff’s psychological problems do not have their cause in the defendant’s unlawful act if they arise from a desire on the plaintiff’s part for such things as care, sympathy, relaxation or compensation.
- The plaintiff’s psychological problems do not have their cause in the defendant’s unlawful wrongful act if the plaintiff could be expected to overcome them by his or her own inherent resources, or “will-power”.
- If psychological problems exist, or continue, because the plaintiff for some reason [consciously] wishes to have them, or does not wish them to end, their existence or continuation must be said to have a subjective, or internal, cause.
- If a court could not say whether the plaintiff really desired to be free of the psychological problems, the plaintiff would not have established his or her case on the critical issue of causation.
- Any question of mitigation, or failure to mitigate, arises only after causation has been established.
- It is not sufficient to ask whether a psychological condition such as “chronic, benign pain syndrome” is “compensable”. Such a psychological condition may be compensable or it may not. The identification of the symptoms as “chronic benign pain syndrome” does not resolve the questions of legal liability or the question of assessment of damages.
- It is unlikely that medical practitioners can answer, as matters of expert opinion, the ultimate questions on which these cases often turn.
- As set out by Spencer J. in Maslen, the overall test is: “[C]hronic benign pain syndrome will attract damages … where the plaintiff’s condition is caused by the defendant and is not something within her control to prevent. If it is true of a chronic benign pain syndrome, then it will be true also of other psychologically-caused suffering where the psychological mechanism, whatever it is, is beyond the plaintiff’s power to control and was set in motion by the defendant’s fault.
- There must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.
The above list of considerations blend factors of credibility and factors of causation. However, it appears that the threshold inquiry is one of the plaintiff’s credibility. The Court is to examine the evidence of the plaintiff’s motives in an effort to determine whether or not the plaintiff is genuinely experiencing the pain symptoms. The above guidelines suggest that Court will look at whether or not the plaintiff can exercise control over his or her symptoms. Medical opinion evidence is relevant to determining if the plaintiff’s complaints of pain are genuine, but is not determinative. If the Court concludes that the plaintiff’s complaints of pain are real to him or her, and beyond the plaintiff’s control, the analysis then shifts to whether those feelings of pain and emotional problems are causally linked to the accident.
The causation analysis may be challenging in cases that involve individuals who report a constellation of physical and psychological problems both before and after the accident. It is therefore important to be aware the current state of the Canadian law of causation.
A plaintiff cannot prove his or her case by simply maintaining that the accident was a materially contributing factor to his or her development of chronic pain. The Plaintiff must prove, on a balance of probabilities, that the injuries would not have occurred but for the accident: Clements v. Clements, 2012 SCC 32. In other words, it must be more likely than not that the accident caused the chronic pain condition. However, the “but for” test is not to be applied too rigidly; it is a factual question and may be answered with reliance on common sense: Athey v. Leonati, [1996] 3 S.C.R. 458 paras. 14 – 16. It is not necessary for the plaintiff to show that the defendant’s negligent conduct was the sole cause of the chronic pain condition, as long as it was a substantial factor in its development: Athey, para. 17.
The recent decision in Hunt v. Ugre, 2012 BCSC 1704 illustrates the application of the above principles respecting credibility and causation. Mr. Hunt was involved in two motor vehicle accidents. At trial, he asserted that his chronic pain complains were the sequelae of a pain disorder or a somatization disorder. The Court observed that the plaintiff’s “existence is primarily devoted to chronicling and seeking treatment of his various symptoms” (para. 44). Mr. Hunt’s treating psychiatrist diagnosed him with a somatization disorder attributable to the accidents, and opined that his underlying obsessive-compulsive personality traits predisposed him to this condition. The treating psychiatrist opined that the plaintiff’s “belief that he has a severe physical disability is of ‘an unconscious derivation.’” The psychiatrist that assessed the plaintiff on behalf of the defence “was unable to diagnose a pain disorder within a reasonable degree of medical certainty because he could not opine whether Mr. Hunt’s pain was intentionally produced or feigned” (para. 88).
The Court considered aspects of Mr. Hunt’s evidence respecting his symptoms to be unreliable, and gave several examples of the inconsistencies in the reasons for judgement. Nonetheless, the Court did not find Mr. Hunt to be deliberately untruthful. The Court went on to find that Mr. Hunt had a psychiatric condition that was not feigned. The Court explained that “Mr. Hunt genuinely experiences pain and other somatic symptoms for which there is no demonstrable organic cause. He has genuinely persuaded himself that he suffers from a debilitating physical condition which is very real to him and causes him significant distress (para. 113).”
However, Mr. Hunt’s claim for psychological injury broke down on the causation analysis; he was unable to establish a causal connection between his psychological condition and the accidents. Several factors influenced the Court’s finding that Mr. Hunt did not satisfy the “but for” test. Mr. Hunt was preoccupied with his health before the first accident. He also underwent a marital breakdown and had a strained relationship with his son. He lost his job for reasons that the Court declined to attribute to the accidents. The plaintiff’s psychiatric expert did not diagnose the somatic condition until a number of years post-accident, and this expert did not have all of the relevant information about Mr. Hunt’s pre-accident complaints. Ultimately, the Court was “not persuaded on the balance or probabilities that it was the injuries Mr. Hunt sustained in the Accidents that have caused his current constellation of psychological problems” (para. 146).
The case of Eccleston v. Dresen, 2009 BCSC 332 (“Eccleston”) also shows how credibility considerations played a key role in the Court’s determination of whether or not the plaintiff suffered from a chronic pain condition. Ms. Eccleston, suffered soft tissue injuries to her upper spine as a result of a motor vehicle accident. Six years later, she alleged that the pain persisted. She alleged that she was permanently and totally disabled. However, the defendant maintained that Ms. Eccleston was not credible in respect of her complaints of ongoing pain. The defendant further argued that Ms. Eccleston’s psychological condition pre-existed the accident.
Ms. Eccleston prevailed at trial. The court acknowledged that there was “clearly a somatofom component to the pain the plaintiff experiences in that there is an absence of demonstrable organic pathology which would otherwise explain it, and what demonstrable organic pathology there was has long since healed” (para. 64). Nonetheless, the Court concluded that Ms. Eccleston suffered from chronic pain and that the psychological aspects of her condition were attributable to the accident.
It is worth noting that the evidence of numerous lay witnesses from various aspects of Ms. Eccleston’s life made a difference in the Court’s finding in her favour. The Court heard from Ms. Eccleston’s sister, a friend of 40 years, two more recent friends and her children. The Court reviewed the evidence of these witnesses at length. It appears that their evidence may have been a significant contributing factor to the Court’s finding that the plaintiff was not motivated by secondary gain.
B. Potential Implications for the Quantum of Damages
The assessment of a non-pecuniary damages award is based on the facts of the individual cases Trites v. Penner, 2010 BCSC 882. However, the Courts frequently refer to the decision in Price v. Kostryba (1986), 70 B.C.L.R. 397 (S.C.) as authority for the proposition that the court must be careful when there is minimal objective evidence of ongoing injury and the normal period for recovery has passed.
Case law provides some guidance with respect to the potential award if the plaintiff successfully proves the allegations of chronic pain. It appears that the low end of the range for non-pecuniary damages may be in the ballpark of $55,000 on the basis of the recent comments of the Court in Redl v. Sellin, 2013 BCSC 581. Case law also suggests that the quantum of non-pecuniary damages awarded for a chronic pain condition can exceed $100,000.
In Redl, the Court found that the plaintiff suffered from chronic pain syndrome and a chronic pain disorder. However, the Court took particular note of the fact that Ms. Redl’s pain was intermittent, and that she was able to control her symptoms through exercise and therapy. Commenting that “the present case appears to be at the lower end of severity, relative to cases of chronic pain seen before this court” (para. 27), the Court awarded non-pecuniary damages of $55,000.
In Mohan, discussed above, the Court awarded $100,000 in non-pecuniary damages after concluding that, despite some exaggeration of her symptoms, the Plaintiff suffered from a chronic pain disorder. When compared with similar cases, Mohan appears to be consistent with the award that may be made when the Court generally finds the plaintiff’s report of pain to be believable, but has some reservations due to exaggeration.
In Eccleston, also discussed above, the 43-year-old plaintiff was found to suffer from debilitating chronic pain that was expected to diminish, but not disappear. She was awarded $120,000 (less a 10% deduction in light of her pre-existing psychological issues).
Thus the non-pecuniary damages award in a chronic pain case may be substantial even when the plaintiff presents with minimal physical signs of injury. Depending on the employment circumstances, an award for past and future income loss may also flow from the Court’s determination that the plaintiff has an accident-related chronic pain condition.
C. Claims Assessment
In a case in which the chronic pain allegation appears to be well-supported by the evidence and liability is not at issue, early settlement may be the most cost-effective option. The nature of a chronic pain case suggests that, from the quantum perspective, it is unlikely to improve over time.
If liability is disputed to the extent that settlement is not desirable, it may be possible to reach an agreement with the plaintiff on the damages and proceed to an expedited trial on the liability issues.
The challenge lies in determining, as early as possible, whether or not a Court is likely to find that the chronic pain allegations have merit. Opinions from qualified medical experts may be useful. However, Canadian courts have emphasized that the opinions of medical experts do not, in and of themselves, determine the outcome of the case. The legal principles discussed above suggest that other factors, that can be analyzed without reliance on an expert’s opinion, may be just as influential to the assessment of whether or not the plaintiff is likely to prove an allegation of chronic pain.
As discussed above, the Plaintiff’s credibility is important to the claim’s assessor’s consideration of whether or not the facts present a potential chronic pain disorder case. The following considerations may assist in analyzing the strength of the plaintiff’s case:
- Plaintiff’s likeability: the importance of the plaintiff’s presentation may seem trite. However, it is important for the claims handler to consider, and obtain as much information about, the plaintiff’s ability to express himself or herself with candour. The case of Jorgensen v, Coonce, 2013 BCSC 158, wherein the court commented that “having sized [the plaintiff] up carefully over a couple of days of testimony, [it] concluded that he was not a person given to guile, exaggeration or prevarication” (at para. 72), illustrates the importance of the plaintiff’s demeanour to the court’s findings with respect to allegations of chronic pain.
- Lay witnesses: as indicated by the Eccleston decision, the Courts may place considerable weight on the plaintiff’s ability to call witnesses from various aspects of his or her life to testify as to the implications of the accident. Obtaining statements from collateral witnesses, at an early stage of the claim, may assist in determining if the plaintiff is likely to have believable lay witnesses to comment upon the changes that they have observed in him or her.
- Plaintiff’s employment picture: the plaintiff’s efforts to return to work may be a factor in the court’s analysis of whether or not the plaintiff is experiencing ongoing pain symptoms.
- Views of treating physicians: the Court may find the evidence of a treating physician that has known the plaintiff for a number of years pre-accident to be particularly compelling. In British Columbia, it is possible to seek an interview of the treating physician: Swirski v. Hachey (1995),16 BCLR (3d) 281 (S.C.).
- Surveillance: surveillance footage of the plaintiff’s daily routines may assist in determining whether or not the plaintiff’s evidence on discovery and reports to physicians corresponds to his or her activities.
- History of psychological problems: if the plaintiff’s pre-existing medical condition and circumstances suggest that other life events have affected his or her psychological presentation, the court may be less likely to find that pain from an accident, particularly a minor one, is responsible for his or her current problems: Carson v. Henyecz, 2012 BCSC 1815. However, this analysis should be approached with caution. The information must disclose that there was a “measurable risk” that the pre-existing issues would have affected the plaintiff: Smith v. Moshrefzadeh, 2012 BCSC 1458.
D. Summary
In summary, it is established in Canadian case law that a plaintiff may be found to have an accident-related chronic pain condition even if he or she presents with few physical symptoms. Recognizing the psychological component to the diagnosis of chronic pain, the case law suggests that the Courts will conduct an analysis of the plaintiff’s credibility, and will often rely upon the collateral evidence provided by those who interact with the plaintiff in his or her daily life. If the Court finds the plaintiff to be a credible witness, the analysis will focus on whether it is more likely than not that the chronic pain condition would not have developed but for the accident. While the Court will likely take the opinions of medical experts into consideration, the ultimate determination of whether or not the plaintiff’s complaints of pain are genuine rests with the Court.
The duration and potential permanence of the alleged chronic pain condition may influence the damages award. Thus, gathering as much information as possible about the plaintiff’s life circumstances may assist the claims assessor in determining if the plaintiff will likely prevail following an analysis of credibility and causation.
Prepared by: Lindsey C. Galvin
Presented by: Kim Wigmore, Daniel Shugarman, Alexandre Maltas & Lindsey Galvin
