A Legal Perspective on Chronic Pain

Toronto Personal Injury Lawyer Albert Conforzi: The greatest challenge in the personal injury field regarding the resolution of chronic pain cases is that most of them fall under the heading of a subjective complaint. That is, the client is telling you about the pain they are experiencing, but there is no clear cut medical evidence - an X-ray or MRI scan, for instance - to objectively support the claim.

It is rare for there to be an “objective” topology for reported pain and limitation of function. In those rare cases where objective evidence is present, the resolution of compensation issues isn't usually a problem.

The challenge in chronic pain cases stems, in large part, from the inherent skepticism of the insurance industry. Insurance personnel are institutionally-motivated and rewarded for their skepticism. Their primary focus is to limit claim amounts, as opposed to separating meritorious claims from frivolous ones.

We also have a legal system which is oriented to "cause and effect" questions. While chronic pain has been recognized at the highest court levels as a legitimate claim for damages, claimants face the hurdle that self reporting is the only way to know if they are suffering from chronic pain.

Insurance adjusters and insurers' counsel pore over every word of medical documentation for the slightest hint of skepticism about the veracity of the complaint. The goal is to undermine the credibility the claimant.

Despite significant advances in diagnostic technologies, it is presumptuous and naive to assume that diagnosis has achieved a level of certainty from which flows the legitimate conclusion that an absence of “objective” findings means that either the pain is not “real” or  is purely psychosomatic in origin.

Dry, “observational” language in recording self-reported symptoms for assessments and treatment recommendations can have a powerful impact on legal outcomes. While it is essential for assessors to maintain their professional integrity by objectively assessing and reporting on chronic pain scenarios, it is equally important for them to avoid relegating the self-report aspects of a case to “second class” evidentiary status.

Insurance adjusters and insurers' counsel pore over every word of medical documentation for the slightest hint of skepticism about the veracity of the complaint. The goal is to undermine the credibility the claimant, thereby limiting their exposure or forcing a minimal settlement. A medical assessor, concerned primarily with the therapeutic welfare of the patient, might well be unaware that their words, if poorly chosen, can seriously impair the patient's efforts for legitimate legal recovery.

Individuals experiencing chronic pain typically have been subjected to multiple diagnoses, various unsuccessful therapeutic interventions, and overt skepticism. They can understandably feel demoralized and frustrated. Nonetheless, unless there are clear reasons for discounting their self reported symptoms, it is essential that medical assessors be alert to the wider implications of their reports so as to avoid victimizing the chronic pain victim a second time.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Alleged Insurance Fraud Makes a Big Splash

Albert Conforzi

Toronto Personal Injury Lawyer Albert Conforzi - I read with interest about the recent arrests made in alleged fraudulent staged collisions in the GTA. It is likely we will never hear whether a single conviction takes place.

The Insurance Bureau of Canada (IBC) spent a total of 18 months investigating 9 collisions before they turned it over to the police. One of these collisions involved a van that sat 5 passengers where there were 7 claims. One wonders how long it took for that investigation. The IBC claims that claimants would receive up to $75,000 for participating in the scam.

Those who are in the system know that this cannot be factually correct. These were "soft tissue claims," which are routinely treated as minor injury claims by the insurance industry. For these injuries, there is a treatment cap of $3,500, including assessments. A treatment cap means that claimants don't get the money - it goes to the clinics. A clinic would not stay in business very long by paying people $75,000 for a maximum return of $3,500.

That's not all. A soft tissue claim in tort would be subject to a $30,000 deductible. Insurance companies like Aviva - the biggest insurer in Ontario -  refuse to pay these type of claims all the time. It is again difficult to believe that this scam would work against such a sophisticated and organized industry.

Insurers are supposed to treat their customers with the utmost good faith, and not as adverse claimants. Unfortunately, that's not the way it is.

It isn't a stretch to believe that the insurance industry is doing some of their usual fear mongering. They have trotted out the same fraud statistics for the last 20 years.

Keep in mind that the cost of fraud is simply passed on to the consumer by insurance companies, and it's been that way forever. Think about it. If fraud has been roughly the same annual component of gross premiums since at least 1990 when they started crying about it, the very first year's increase in premiums would have covered and continued to cover fraud to today. Instead, the IBC continues to raise the fraud flag as the lever to extract reductions in coverage from successive governments that affect all consumers.

I'm not suggesting that fraud doesn't exist, nor that the people who practice it shouldn't be punished. But it is getting to the point where if a claimant has the temerity to make a claim for benefits which the insurance industry doesn't want to cover, then you, your doctor, your treatment facility and your legal representative are tarred with the same brush -- suspicion of fraud.

Those of us who practice in this area know that there is a 35,000 case backlog for mediation at the Financial Services Commission of Ontario (FSCO), the largest, longest (1 year) backlog since it was created in 1990. The backlog is there because the insurance industry lives in a culture of denial, treating every claim and claimant with scepticism and doubt. Insurers are supposed to treat their customers with the utmost good faith, and not as adverse claimants. Unfortunately, that's not the way it is.

Consumers and claimants should not be subject to intimidation, which stops them from advancing a legitimate claim. I have dedicated my legal career to making sure that injured claimants get what they deserve for their injuries, and I will continue to fight for my clients' rights, no matter how long it takes. I just wish they weren't made to feel like criminals in the process.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.

Simple Letter Solves Problem

Allan Chapnik

by Toronto Lawyer Allan Chapnik: Yesterday, over the phone, a potential new client told me that his mother had passed away and the insurance company refused to pay out on the credit insurance she had on a loan from the bank. They said it was because she died within 12 months of the loan (and the matching insurance) being granted. The problem was, the loan only had a 12 month term, and was in fact the third or fourth 12 month renewal of an older loan. It sounded like a great way to collect insurance premiums but never pay out.

I met with the guy today. He brought the insurance policy with him. It turns out it has a perfectly fair provision for loan renewals - only the insurance adjuster wasn't aware the loan was a renewal, and didn't know to apply it. So, instead of taking him on as a client, I helped this guy write a nice letter to his insurance company pointing out their oversight. I fully expect the insurance money to be paid out right away.

I've never been so happy not to be retained.

Toronto Personal Injury Law - Joanna Leong

Joanna earned her law degree from Queen's University in 2007 and was called to the Ontario Bar in 2008. While studying at Queen's, she was an active volunteer in the Queen's Law community and was awarded the David Sabbath Prize in Tax Theory and Policy upon graduation.

Prior to joining Pace Law Firm, Joanna worked at a prominent personal injury litigation law firm in Toronto, Ontario. She has appeared before the Superior Court of Justice, the Divisional Court, the Financial Services Commission of Ontario, and the Criminal Injuries Compensation Board.

Joanna is a member of the Ontario Trial Lawyers' Association, the Advocates' Society, the Federation of Asian Canadian Lawyers, and the Ontario Bar Association.

You can reach Joanna by dialing 1-416-IINJURED, or by email here.

Toronto Personal Injury Law - Al Pace

Al Pace is the Founder and Principal of Pace Law Firm. He has practiced law for more than 30 years and has earned a stellar reputation for skill and outstanding client service.

As CEO of Pace Law Firm, Al takes a personal interest in all of the firm's cases to ensure the highest standards of service excellence are met consistently. In addition to his legal practice, Al supports community involvement, and has taken an active and prominent role in the Lithuanian community and the Trillium Health Centre.

You can contact Al Pace here.

Toronto Personal Injury Law - Nancy Young

Toronto personal injury lawyer Nancy Young.

Nancy regularly appears before the Superior Court of Justice and has conducted numerous arbitrations, appeals and expense hearings at the Financial Services Commission of Ontario. She has also appeared before the Landlord Tenant Board.

Nancy speaks fluent Chinese (Cantonese) and is a member of the Ontario Trial Lawyers Association, the Advocates Society and the Federation of Asian Canadian Lawyers.

If you have been injured in an accident or need legal advice, contact Nancy here and at 647-789-2349.