Chronic Pain, Fibromyalgia and Chronic Fatigue Litigation

“Learn from yesterday, live for today, hope for tomorrow.” – Albert Einstein 1879-1955

Chronic pain, fibromyalgia and chronic fatigue cases present unique challenges for plaintiff’s counsel whose task it is to prove disability, whether within the context of a tort or statutory accident benefits case or when claiming entitlement to long-term disability benefits. The primary symptoms associated with these conditions are pain and fatigue. These symptoms are largely subjective experiences and, as such, the management of cases involving plaintiffs who suffer from these conditions pose difficulty for personal injury practitioners accustomed to relying upon medical assessments to determine pain and quantify damages.

The difficulties inherent in these cases are the result of several factors: (1) widespread scepticism of the existence of these conditions within the medical community; (2) onset of severe and disabling symptoms even following a relatively minor traumatic incident; and (3) the absence of “objective” physical findings to substantiate the plaintiff’s symptoms and resultant disability.

The challenge posed to plaintiff’s counsel is to develop the plaintiff’s case using highly qualified and experienced experts and to present the case in a manner which demonstrates powerfully and convincingly the plaintiff’s disability. To do so, plaintiff’s counsel must understand the nature of these conditions and marshall the evidence necessary to establish the legitimacy of the plaintiff’s condition. Further, counsel must be aware of the challenges to be faced and must be able to neutralize the impact of the defence experts and, ultimately, to persuade the trier of fact to award the plaintiff fair compensation for his or her losses.

In this article, approaches to chronic pain, fibromyalgia and chronic fatigue cases will be discussed from the perspective of a plaintiff in a tort case arising out of a motor vehicle accident.

In a motor vehicle accident case, the difficulties in proving disability are further complicated by issues of causation. Individuals who develop chronic pain, fibromyalgia or chronic fatigue following motor vehicle accidents are frequently involved in relatively minor collisions with limited property damage. Further, their “objective” injuries are often limited to soft-tissue or WAD injuries. In addition to marshalling expert evidence which is objective and persuasive, the challenge posed to plaintiff’s counsel is to create a historical framework, based on the plaintiff’s own pre-accident history, in which the plaintiff’s pre-accident qualifications, achievements and work history are invoked to build a framework for establishing credibility.

DEFINITIONS  [1]

Chronic Pain and Chronic Pain Syndrome

Chronic pain can be distinguished from acute pain, which is generally regarded as pain that begins suddenly and arises directly from injury or disease. The International Association for the Study of Pain describes chronic pain as any pain in any area of the body that lasts for over one month beyond the reasonable or expected recovery time for an injury or disease. Other medical professionals have designated a time line of three to six months after the expected recovery time in describing pain that has become chronic.

In his article entitled “Chronic Pain Syndrome: Identification and Management”, Dr. David Corey defines chronic pain as “pain persisting for more than six months from its onset”. Dr. Corey expands this definition as follows  [2]:

1. The chief complaint is of severe and prolonged pain in excess of what could be expected on the basis of organic findings; and
2. At least six of the factors listed below are exhibited:
   1. Diagnosis of soft tissue injury;
   2. Multiple symptoms complaints, e.g., headaches or fatigue;
   3. An unsuccessful attempt to return to work;
   4. Guarded movements or avoidance of many activities, i.e., an invalid-like lifestyle;
   5. Ingestion of multiple analgesics, tranquillizers, etc.;
   6. Frequent and multiple physician contacts;
   7. Development of family and marital problems;
   8. Reduction in or loss of libido;
   9. Diffuse anger, frustration and irritability;
   10. Anxiety and/or depressive symptoms; and
   11. Sleep disturbance.

Chronic pain syndrome is a condition in which chronic pain has persisted over a period of time and is intense enough that is substantially interferes with an individual’s ability to function and to carry on his activities of daily living. Chronic pain erodes the sufferer’s confidence, self-esteem and general well-being  [3]. The defining feature is that chronic pain has rendered the pain sufferer vocationally and/or functionally disabled.

The difficulty medical professionals have encountered with chronic pain syndrome is that it often has what Dr. Manish Singh, Assistant Professor at Pennsylvania Hahnemann University, has described as “a complex natural history, unclear etiology and poor response to therapy”  [4]. According to Dr. Singh, “some authors have even suggested that CPS (chronic pain syndrome) might be a learned behavioural syndrome”  [5]. The suggestion is that there may be an initial noxious stimulus that causes pain and when the pain behaviour is rewarded, that behaviour is reinforced resulting in a continuation of the pain behaviour in the absence of the noxious stimulus  [6]. This may account for the belief of certain individuals in the medical and legal professions that the litigation process may in fact perpetuate chronic pain syndrome.

Fibromyalgia

The American College of Rheumatology has provided the following classification for fibromyalgia  [7]:

1. History of widespread pain.

Definition. Pain is considered widespread when all of the following are present: pain in the left side of the body, pain in the right side of the body, pain above the waist, and pain below the waist. In addition, axial skeletal pain (cervical spine or anterior chest or thoracic spine or low back) must be present. In this definition, shoulder and buttock pain is considered as pain for each involved side. “Low back” pain is considered lower segment pain.

2. Pain in 11 of 18 tender point sites on digital palpation.

For classification purposes, patients will be said to have fibromyalgia if both criteria are satisfied. Widespread pain must have been present for at least 3 months. The presence of a second clinical disorder does not exclude the diagnosis of fibromyalgia.

Chronic Fatigue Syndrome/Myalgia Encephalitis

The following is the case definition for chronic fatigue syndrome as published in the Annals of Internal Medicine in 1994  [8]:

Fatigue: Patients must have otherwise unexplained, relapsing fatigue that is new (not life-long); not the result of ongoing exertion; not relieved by rest,; and that results in substantial decreases in levels of occupational, social, educational, or personal activities.

Symptoms: The patient must have four or more of the following eight symptoms. Symptoms must persist for six months and the patient must not have predated fatigue.

1. Self-reported impairment of memory or concentration that affects occupational, social, educational, or personal activities.
2. Sore throat.
3. Tender cervical (neck area) or axillary (underarm area) nodes.
4. Myalgias (muscle pain).
5. Arthralgias (pain along the nerve of the joint). No redness or swelling.
6. Headache of a new type.
7. Unrefreshing sleep.
8. Post-exertional malaise, lasting more than one day

Footnotes:

1. The following section is taken from a previous paper, “Understanding and Managing the Increase in Chronic Claims and Newly Classified Disabilities” presented at the 3rd Annual “Managing Your Duty
to Accommodate” conference on October 21 and 22, 2003.

2. D. Corey, “Chronic Pain Syndrome: Identification and Management” (1988) 9 The Advocates’ Q. 223.

3. Minnesota Board of Medical Practice Update Newsletter, Spring 1997

4. Manish K. Singh, M.D., et al., “Chronic Pain Syndrome”, online: emedicine
<http://www.emedicine.com>.

5. Ibid.

6. Ibid.

7. F. Wolfe, et al., “The American College of Rheumatology 1990 criteria for the
classification of fibromyalgia: report of the multicenter criteria committee” (1990)
33:160 Arthritis Rheum 72.

8. F. Keiji, et al., International Chronic Fatigue Syndrome Study Group, 15 December 1994, Vol. 121, Issue 12, at 953-959.