What Is Objective Evidence of Chronic Pain?

Court Concludes that Orthopaedic Insurer Examinations Have Little Value in Chronic Pain Cases

One of the more frustrating aspects of practicing in accident benefits law that that insurance companies repeatedly send claimants who have soft tissue, chronic pain injuries to orthopedic surgeons for independent medical examinations to determine their eligibility for certain benefits or the reasonableness of treatment plans. They are requested to perform these assessments even though they are typically outside their area of expertise. Way more often than not, the assessment invariably finds “no objective evidence on ongoing impairment”, following which, the insurer denies all benefits. 

In a recent case of Maxwell v. Luck et al, which heard December 3, 2014, the Court stated that such an opinion is of little value in a chronic pain case, where the pain is very real to the victim, despite a lack of “objective” proof.

In this case, the plaintiff, Ms. Maxwell, was injured in a motor vehicle collision on February 12, 2007.  The defendants brought this “threshold” motion, in which they argued that she failed to meet the test under the Insurance Act of “permanent and serious impairment”.

Ms. Maxwell relied on the evidence of Dr. Alpert, an orthopedic surgeon with significant expertise in chronic pain.  His evidence was that Ms. Maxwell had suffered a serious whiplash-type injury that aggravated a pre-existing condition, leading to a chronic moderate to severe neck injury.  As a result of the impairment, she was forced to quit her job, and despite treatment, was unable to return.

The insurer relied on the evidence of Dr. Ford, an orthopedic surgeon specializing in spinal trauma.  This doctor’s opinion was that Ms. Maxwell had not suffered a permanent impairment from the collision and that any ongoing symptoms related to her pre-existing condition.  He found no objective evidence of impairment stemming from the collision to change his opinion.

The judge in this case found that the plaintiff was permanently and seriously impaired.  He found that Dr. Alpert was knowledgeable in the treatment and assessment of chronic pain, and accepted his opinion.  The judge also found that Dr. Ford’s position where he dismisses chronic pain complaints unless he can see or understand the mechanism causing the complaint revealed a complete lack of understanding of chronic pain cases, which typically lack objective proof.  Instead, a thorough history of the patient, coupled with an equally thorough physical examination and review of the medical records is required in order to understand the nature and extent of the pain-related impairment. The judge dismissed the opinion of Dr. Ford.

The decision can be found at the following link:

http://www.canlii.org/en/on/onsc/doc/2014/2014onsc7179/2014onsc7179.html

If you have been involved in a car accident and suffered chronic pain, contact one of the lawyers at McNally Gervan for a free initial consultation.