Albert Conforzi, B.A. (Hons.), LL.B., C.S.
Introduction
There are few areas in the interface between the legal and medical fields that pose as much of a problem for both such as the identification, treatment and compensation for victims of injuries that give rise to the development of chronic pain and chronic pain syndromes.
The intent of this paper is to refresh and update basic thoughts from both the legal and medical perspective which can impact the identification, treatment and management of the chronic pain client or patient. As I am not a medical doctor, my discussion of chronic pain is limited to the manner in which we in the legal field receive and interpret materials from the medical field for the purpose of presentation to insurers on behalf of victims for either insurance funded treatment, or for tort related compensation for pain and suffering, and other relevant areas of claim.
Understanding the Problem
In November, 2000 a reference guide for clinicians was posted by the College of Physicians and Surgeons of Ontario entitled "Evidence Based Recommendations for Medical Management of Chronic Non-Malignant Pain". In the suggested management section of chronic musculoskeletal pain it is indicated:
"Multimodal therapy (multidisciplinary rehabilitation) is effective and recommended for chronic pain, for both subjective outcomes as well as objective function outcomes (e.g. return to work). In more difficult cases, more intensive rehabilitation programs hold an advantage over less intensive programs. Rehabilitation programs based in or co-ordinated with the workplace offer advantages with respect to the outcome of return to work.
Cognitive behavioural and behavioural therapies are effective and are recommended for chronic pain, for the subjective outcomes of psychological distress and suffering pain. There may be benefit in biofeedback and relaxation but the evidence is less strong for these modalities.
Education is recommended as a component of a comprehensive rehabilitation program. Although patient education plays an essential role in therapist-patient interaction, and often results in subjective improvement, and is a standard part of most multimodal therapies, education itself has not been demonstrated to be an effective treatment for chronic neck and back pain.
There is contradictory evidence for efficacy of TENS or acupuncture. It might be worthwhile in an individual case if consistent benefits are clearly and repeatedly documented.
There is some evidence for the efficacy of manual therapy or manipulation particularly for chronic low-back pain. Efficacy for neck pain can be demonstrated when manual therapy is used in the context of a more comprehensive treatment. Manual therapy or manipulation may be worthwhile in an individual case where consistent benefits are clearly and repeatedly documented, if there are no contraindications.
Passive physical therapy modalities are not recommended in chronic pain. Active exercise is recommended as part of a comprehensive rehabilitation program.
There is evidence for efficacy of NSAID in acute musculoskeletal pain. There is equivocal evidence that NSAID may be beneficial in chronic musculoskeletal pain. NSAID may be worthwhile in an individual case if consistent benefits are clearly and repeatedly documented, and if there are no contraindications.
There is evidence for efficacy of Tricyclic antidepressants in depression, in chronic headache, or chronic neuralgia, but evidence for efficacy in chronic soft tissue pain is contradictory, and there is equivocal evidence for efficacy in chronic low-back pain or neck pain.
There is level II evidence for a modest level of short term efficacy of cortisone injection for lateral epicondylitis and there is level II evidence for lack of efficacy for chronic shoulder disorders.
Cortisone injections may be worthwhile in an individual case if consistent benefits are clearly documented.
The evidence for injection therapy into painful soft tissues (such as trigger points) for chronic neck and back pain or myofascial pain, is contradictory. It may be worthwhile in some cases if benefits are clearly and repeatedly documented.
When musculoskeletal pain persists for three months or more, especially in the case of psychological distress and functional impairment, and when persistent pain is unresponsive to apparently appropriate therapy, a co-ordinated and more intensive multidisciplinary approach is needed which should include the following:
- The patient's active participation;
- Practical goals for change and focus on the problem areas;
- Patient education including review of goals and progress;
- Promotion of function and return to work;
- Psychosocial intervention where appropriate;
- Closely co-ordinated approach by the treating physician or clinicians
Even when pain relief as a goal eludes the patient and the physician, patients are usually comforted by an empathetic attitude, time to listen, and the offer of emotional support. Function can usually be improved through modification of methods or use of the following:
- Aids
- Modification of tasks
- Changes of pace and rest periods
- Active exercise for strengthening and increasing range
Occasionally referral may be necessary to a specialized multimodal rehabilitation program. In this case, the involvement of and a continued supportive stance of the primary physician is an important ingredient in the patient's progress."
The College of Physicians and Surgeons of Alberta noted in their own guidelines entitled "Management of Chronic Non-Malignant Pain" published in February of 1993 that:
"The scope of the problem of chronic non-malignant pain is staggering; the costs of annual lost productivity due to chronic pain in North American is measured in the billions of dollars. Other less easily measured parameters such as failed marriage or poor quality of life underscore the gravity of the situation."
The greatest challenge in the personal injury litigation field with respect to the resolution of chronic pain cases is that most, if not all, of the complaints made by individuals would fall into the heading of subjective complaint. There are on occasion objective signs that might be found, however the more usual case is one where there are subjective complaints of pain with limitation of function in the absence of "objective" findings.
The reason for this challenge in part stems from the inherent skepticism of the insurance industry to the claims of anyone that would require an insurer to respond by the payment of money. Let there be no misunderstanding that the less claim payments made by an insurer, the more profit will be made. So there is a self bias in the response to these claims by insurers.
On the other hand, the insurance medical examiner can often be seen to share the same skeptical approach when dealing with third party examinations at the request of an insurer.
There was a time when the X-Ray was the most sophisticated level of radiological examination that existed. When the CT scan arrived, a means was found to substantiate other types of injuries that were hitherto not capable of being imaged in Vivo. After that, the MRI further expanded the nature and types of disease and injury that could be successfully imaged. We now know that there are further enhancements with T1, T2 and T3 weightings to the MRI. The advent of functional MRI's as opposed to static will continue to expand the nature and types of injury and disease that can be identified by medical imaging.
The basic truth is that until these enhancements in imaging take place, there will continue to be doubts about certain types of injury simply because it cannot be seen by the eye.
The implications of this in the area of chronic pain are well summarized by Dr. R. S. Miller in the book "Psychological Approaches to Chronic Pain: Assessment and Treatment" Canada Law Book Inc., 2000 at page 117 where Dr. Miller comments:
"It is a truism that medical tests help in the diagnosis of injuries by car accidents. These tests have their limitations and do not, by themselves, necessarily tell us anything about a patient's level of pain . . . we are far from understanding the physiological mechanisms that give rise to chronic pain, but, despite our lack of understanding, chronic pain is a very real problem. However, many assessors conclude that a patient's pain problem is not genuine because it's mechanisms or origin are not understood, are deemed to be "clinically impossible" or do not appear to be consistent with the types of injuries sustained. This is an extremely presumptuous conclusion to make since it assumes that we possess an understanding of the impact of all injuries and the basis for chronic pain problems when we do not."
Along this same theme, a recent Medscape medical news announcement of February 6, 2008 announced a new study which indicates that chronic pain has widespread impact on overall brain function; a finding that may offer a possible explanation for many of the common cognitive and behavioural co-morbidities seen in such patients.
Using functional magnetic resonance imaging, investigators at Northwestern University in Chicago, Illinois, found individuals with chronic back pain had alterations in the functional connectivity of their cortical regions - areas of the brain that are unrelated to pain compared with healthy controls.
"This is the first clue we have that conditions such as depression, anxiety, sleep disturbances and decision-making difficulties, which affect the quality of life of chronic pain patients as much as the pain itself may be directly related to altered brain function as a result of chronic pain",
principal investigator Dr. Dante Chialvo told Medscape Neurology and Neurosurgery. The study is published in the February 6, 2008 issue of the Journal of Neuroscience.We know, therefore that chronic pain syndrome appears as a complex blend of both physical and non-physical elements. It is for that reason that the CPSO guidelines refer to multidisciplinary treatment in order to cover a wide range of bases. Further, we know that as investigation continues to unfold, there are continual upgrades of information and findings through research and improved diagnostic testings that enhance the base knowledge for this problem that is thought to effect approximately two in ten individuals who sustain soft tissue injury in personal injury accidents. There is further research which indicates the impact of chronic pain on as much as sixteen to twenty-five percent of various types of activities.
Dr. Robert W. Teasell and Manfred Harth have written that chronic pain "is best defined as pain which persists for longer than six months". Moving from chronic pain to chronic pain syndrome, this has been described as the point at which pain no longer acts as a symptom but actually becomes a disease in itself. Although many factors interact, the syndrome is often initiated by physical trauma.
Typical physical and psychological complaints that are associated include:
- Neck and shoulder pain
- Stiffness
- Headaches
- Arm pain parasthesia weakness
- Dizziness
- Tinitus
- Fatigue
- Low Back Pain
- Sleep Disturbance
- Temporal Mandibular Joint Pain
- Depression
- Anger and Frustration
- Anxiety
- Loss of Job and Income
- Marital and Family Disruption
- Drug Dependency
From this list, then we see an obvious interplay of variables including biological, psychological, medico-legal and social factors. This often results in patients who are seen by both physical and mental health professionals and have endured multiple evaluations with an array of interventions that do not adequately deal with their suffering. This leads to individuals who are demoralized, frustrated and experience a sense of hopelessness, yet at the same time they continue to seek out answers and cures. In this context the response of such an individual to insurer skepticism and insurer doctor skepticism is more easily contextualized.
It also arguably marginalizes the value of insurer-doctor opinion that (usually an orthopaedic surgeon) concludes that one cannot just accept the symptoms complained of as this is nothing more than subjective sensation of pain and therefore there is no disability because there is no objective impairment or anatomical abnormality which would account for the symptomology.
The approach advocated by these types of doctors ignores that chronic pain as currently understood is an interplay between physical and non-physical elements. While the clinical practice guideline of the College of Physicians and Surgeons is not intended to define a standard of care for a patient for a doctor nor is it intended to establish inflexible protocols for patient care or otherwise replace professional judgment of physicians, the clinical practice guidelines are systematically developed and updated and are evidence-based or consensus-based statements whose purpose is to help improve the quality and consistency of care in specified clinical situations. In this context, the reference in the clinical practice guideline to multidisciplinary assessment including both physical and non-physical modalities would seem to lead to the conclusion that assessing physicians who choose to refer to the non-presence of objective findings as a means to dismiss a patient's subjective complaints are at best only dealing with half of the equation and at worst are intentionally misleading the reader by failing to refer to the other factors which have been demonstrated to exist in the chronic pain patient.
Treatment of Chronic Pain Patients By The Courts
The Arbitrations Branch of the Financial Services Commission rendered a decision called Quattrocchi v. State Farm Automobile Insurance Company, OICA-006854, September 29, 1997. This case well summarizes principles that have been consistently looked at by courts regarding the issue of chronic pain. Another lawyer commentator in the field, Ivan Luxenburg, has summarized these principles in a paper authored on the subject as follows:
- "Pain on its own is not compensable in the Statutory Accident Benefits Schedule. Nor does a diagnosis of "Chronic Pain Syndrome" guarantee entitlement. However, an insured may be found entitled to benefits because of disabling pain, despite their being no objectively confirmable impairment."
- "It is not necessary for an arbitrator to accept any particular diagnosis of the applicant's complaints, because the issue for the arbitrator is whether the applicant is substantially disabled from performing essential tasks of her pre-accident job as a result of the accident. This requires a comparison of the insured person's functional ability before and after the accident. Arbitrators have shown little interest in debates between medical experts as to the legitimacy or significance of a diagnosis of chronic pain syndrome."
- "Where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, the insured's credibility becomes important. In assessing the insured person's subjective pain complaints, arbitrators consider all of the circumstances, including the consistency of the insured person's complaints and apparent functional level."
- "In order to prove entitlement to weekly benefits, an insured must show that her disability resulted from the accident. Arbitrators have consistently said that the accident need not be the only cause of the insured's problems, but must be a significant or material contributing factor. Accordingly, even if the applicant's own attitudes or an action have delayed her recovery, she may be still entitled to benefits, if the accident remains the most significant factor."
- "Where an insured person becomes deconditioned and depressed as a result of ongoing pain and disability thus further delaying her recovery, she may be found entitled to benefits if the arbitrator finds that the psychological elements of her condition as secondary to the injuries she sustained in the accident. Arbitrators have also recognized the "thin skull" principle in weekly benefits cases. On the other hand insurers are not required to subsidize an insured person who takes the opportunity of an accident to leave the workforce and adopt an inactive lifestyle."
- "It is not sufficient to dismiss a chronic pain claim on the basis that returning to work would not harm the applicant."
- "Nor is it sufficient to say that returning to work would be therapeutic for the applicant, as Dr. Lacerte suggested in this case. Whether work might be therapeutic is a distinct question from whether the applicant is substantially disabled from returning to her pre-accident job."
The Supreme Court of Canada in the decision of Nova Scotia Workers' Compensation Board v. Martin [2003] 2 SCR, Page 504 made this pronouncement on the issue of chronic pain:
"Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers' compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the sight of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous systems suggests that it may result from pathological changes in the nervous mechanisms that result in continuing pain and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the well the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians . . . . (per Gonthier J.)
One could easily add the insurance industry and insurance medical evaluation industry to the final sentence of the quotation.There exists a much greater body of caselaw regarding the issue of chronic pain and it is possible to put forward a list of elements that courts have looked to and commented on in the evaluation of these cases:
- Chronic pain cannot be ignored just because it is subjective;
- Ignoring pain complaints and focusing on physical injuries may result in a judge or arbitrator ignoring the opinion of a defence examiner;
- The motor vehicle accident does not have to be sole cause of disability and even if a person has some pre-existing mental and/or physical issues the question from the perspective of the trier of fact is whether or not the motor vehicle accident made some contribution;
- Identification of reasonable and suitable employment alternatives must be real and not notional. Does the job exist in the geographical area. Is the individual competitively employable, i.e. able to work for a complete day taking into consideration the effects of pain and fatigue and difficulties with multitasking and concentration; and
- One has to be cautious about relying too heavily on functional capacities evaluations which are somewhat artificial and limited in terms of usefulness. It artificially provides some measurements for a person's ability to work on a sustained basis but the results must be carefully reviewed in terms of how the person performed and the complaints and limitations noted. One should not extrapolate the results and suggest that a person could work full time based on a four hour assessment.
Concluding Comments
The chronic pain patient and client can be one of the most challenging for both doctor and lawyer. Medical research continues to evolve and illuminate the multifactorial implications of chronic pain particularly following trauma in motor vehicle accident cases. The clinical practice guidelines of the College of Physicians and Surgeons of Ontario provide a useful roadmap for multidisciplinary treatment. Due to the overlap of the provision of services between the OHIP and automobile insurance regimes, much of the available therapies can be accessed through the Statutory Accident Benefits System. This is the subject matter of another presentation this morning.
Skepticism within both the medical and legal/insurance system must be assiduously guarded against. Where insurance assessors prefer to deal with one half of the equation only, appropriate response must be made on behalf of patients and clients alike. Unless there are clear and obvious credibility issues as to why an individual should not be believed, there is no valid reason to allow the chronic pain victim to be systemically victimized a second time.
