Understanding and Managing the Increase in Chronic Claims and ...

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−18−medical techniques. Despite this lack of objective findings, there is no doubt thatchronic pain patients are suffering and in distress, and that the disability theyexperience is real. While there is at this time no clear explanation for chronic pain,recent work on the nervous system suggests that it may result from pathologicalchanges in the nervous mechanisms that result in pain continuing and non-painfulstimuli being perceived as painful. These changes, it is believed, may be precipitatedby peripheral events, such as an accident, but may persist well beyond the normalrecovery time for the precipitating event. Despite this reality, since chronic painsufferers are impaired by a condition that cannot be supported by objective findings,they have been subjected to persistent suspicions of malingering on the part ofemployers, compensation officials and even physicians.This decision represents a clear recognition of the disability that can be experienced by individualssuffering from chronic pain and as such, constitutes a positive step for those who may be seekingcompensation as a result of their disabilities.9. The Response of InsurersInsurers faced with claims from individuals diagnosed as suffering from Chronic Pain, Fibromyalgiaor Chronic Fatigue Syndrome arising out of a motor vehicle accident or other injury, or thoseclaiming disability benefits as result of these conditions, should not immediately dismiss theseclaims.In order to avoid claims for bad faith, insurers must ensure that claims are handled promptly and thatrelevant medical reports are obtained and carefully reviewed. Insurers should write to the claimant’streating doctors before any decision is made to terminate benefits and the opinions of the treatingdoctors should be carefully considered by the insurer.
−19−If appropriate, the insurer should arrange for relevant medical experts to assess the claimant andcomment on the nature of the claimant’s medical condition and how that condition affects theclaimant’s vocational and/or functional abilities. A job site analysis is often useful in this regard asthe analysis will establish the parameters within which the claimant’s disabilities can be analyzed.A decision denying or terminating benefits based upon medical reports that merely dismiss theclaimant’s complaints because these complaints are not supported by objective findings, may besubject to serious scrutiny at a later date.Failing to properly investigate the claimant’s medial condition and disabilities could potentiallyexpose the insurer to a claim for bad faith, particularly where all of the claimant’s treatingpractitioners are attesting to the claimant’s extensive disabilities and functional limitations and theinsurer has not obtained any contradictory medical reports in this regard.In light of the growing recognition of Chronic Pain, Fibromyalgia, Chronic Fatigue Syndrome andother pain- associated conditions and their potentially disabling effects, insurers should be preparedto resolve these types of cases for realistic values.If the accident or injury has rendered the Plaintiff unemployable or unable to return to his or herprevious employment, the Plaintiff, depending on the nature of his or her employment, couldpotentially be awarded significant damages. Furthermore, depending on the extent of the Plaintiff’sdisability, there may be a significant award for the cost of future care.
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Page 3 and 4: −3−Despite these difficulties a
Page 5 and 6: −5−stimulus that causes pain an
Page 7 and 8: −7−Fatigue:Patients must have o
Page 9 and 10: −9−The divergence of medical op
Page 11 and 12: −11−The Plaintiff’s credibili
Page 13 and 14: −13−In Kuhne v. Minife 16 , a d
Page 15 and 16: −15−Justice Thomson ultimately
Page 17: −17−In the recent decision of N
Page 21: −21−In Fimiani and Liberty Mutu

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