Believe it or not, the prevalence of ‘whiplash’ claims no longer seems to be the insurance industry’s biggest bugbear. Rather, its place has, at least in part, been taken by an escalation in the number of claims involving chronic pain. Numbers are unavailable, but anecdotal evidence of a growth in claims is supported by the springing up of specialist departments in insurance law firms, specifically to defend claims involving chronic pain.
The medical profession simply describe chronic pain as pain that has persisted for longer than 3 months. However, a chronic pain condition can be debilitating and permanent and, for an insurance company, that potentially means very expensive.
Some chronic pain conditions, such as Fibromyalgia, are now more widely known; others such as Somatic Symptom Disorder, Myofascial Pain Syndrome and Complex Regional Pain Syndrome, much less so.
However, the statistics for even less well known conditions are worrying. Take, for example, Complex Regional Pain Syndrome, commonly referred to by its acronym, CRPS. One study suggests that each year in the UK, 1 in 3,800 people will develop this condition. Ok, so that sounds like pretty good odds on one individual not developing CRPS, but scale that up to the whole population and suddenly you’re faced with over 17,000 people a year in the UK that will develop the condition.
So what is CRPS? Unfortunately, its cause remains relatively unknown. However, what is known is that it develops following trauma and leads to persistent pain, most often in the hand and arm or foot and leg. It is typically characterised by intense burning pain, substantially increased skin sensitivity, changes in skin colour and temperature and abnormal nail and hair growth.
Probably around half of those who develop CRPS will recover or largely recover, but a significant proportion will not. For many sufferers, their symptoms deteriorate. Worse than that (and this is where things become very strange indeed) the condition can spread to other limbs which were not injured by the original trauma.
CRPS can severely affect a person’s mobility, their ability to work and to care for themselves and their family. There’s also the psychological impact, not only of being in constant pain, but of suddenly finding that you’ve gone from being a fit and healthy individual with a good quality of life to being dependent upon others for many basic activities you previously took for granted. Then to add further insult, the doctors can’t really tell you for certain what’s going on and why.
In very severe cases, sufferers may actively seek amputation of the affected limb. However, that comes with its own particularly nasty twist. Not only is the risk of developing phantom limb pain as high as 50%, but there is a significant risk of the CRPS reappearing above the level of the amputation.
Taking all of this into consideration, it can be seen that the financial impact of developing CRPS can be very substantial indeed. It is not unusual to find claims for CRPS and other chronic pain conditions settling for high six figure and even seven figure sums.
The cause of some types of pain is fairly obvious. Should you fall and fracture your femur, an x-ray is clear objective evidence of the cause of your pain. The problem with claims involving chronic pain is that for some conditions there are few, in any, objective signs at all. Pain itself is a very subjective sensation so, if you are not prepared to accept a person’s word for it, it is difficult to prove objectively that they are in pain and what the level of that pain is. And clearly, the higher their level of pain, the greater their level of disability and therefore the potential value of their claim.
It is this lack of objective evidence, combined with a level of symptoms which is often out of all proportion to the original injury, that insurance companies find so difficult to swallow.
Consequently, a claimant’s diagnosis with a chronic pain condition is usually greeted by an insurance company like a declaration of war. Not only will they require disclosure of a panoply of documents – medical records, DWP records, employment records, military records – for forensic examination by their lawyers and medical experts, but the claimant will be placed under close, ongoing observation, not only in the form of covert surveillance, but also the monitoring of the social media of both the claimant and their family and friends.
They are not only attempting to find any cause for the claimant’s condition other than the event they insure, but are also looking for any shred of evidence that may help them to undermine the claimant’s credibility. If they can show to the satisfaction of the court that a genuine claimant has been ‘fundamentally dishonest’, even in some fairly minor regard, perhaps understating the distance they can walk, the whole of the claim may be defeated. Even if they cannot prove fundamental dishonesty, any element of doubt that they can introduce into the claim can serve to increase what lawyers describe as ‘litigation risk’, which may prove to be a significant bargaining chip during settlement negotiations.
So why have the number of claims involving chronic pain grown so much in recent years? It is not that there has been some great epidemic of chronic pain. Rather, it is at least in part due to the legal profession becoming more aware of chronic pain and learning to ask the right questions, both of their clients and the medical experts.
Too often in the past, a claimant’s own medical expert would scratch their head and say that they could not explain the ongoing symptoms which were ‘out of all proportion to the accident’, before going on to refer to ‘illness behaviour’ and giving an opinion that ‘any symptoms related to the accident most likely resolved within 6 months’. The lawyers would often accept this at face value and recommend to the claimant that their claim be settled on that basis.
There must therefore be many thousands of people suffering chronic pain who, over the years, ended up being substantially undercompensated.
However, in recent years we have not only seen an increase in awareness among the lawyers, but also among the medical profession and in particular GPs and others working in primary care. Consequently, we are now seeing earlier diagnosis of chronic pain and referral for specialist treatment. This increase in awareness of chronic pain among the medical profession is not entirely down to an increase in the number of claims, but it’s good to think that perhaps the claims process has played at least some role in the improvement of people’s lives, whether or not they are personally involved in litigation.