MAY’S OPEN MIKE – Pain v Function
Compulsory Third Party insurance companies salivate when they stumble upon medical records listing injuries or complaints that pre-date the accident they are being held accountable for. They see it as the perfect opportunity to off load all (or part of) the blame to someone else.
But how successful are “pre-existing” injury arguments?
In our experience – not very – but it requires a high level of skill and proper evidence gathering to properly prove your point.
We have a string of successes in highly complex cases from proving a brain tumour was not a brain tumour (in defeating a “pre-existing” medical condition being used as an “inevitable accident” defence) to showing that four spinal fusions and several spinal stimulators BEFORE the accident was no excuse for blaming it all on “pre-existing” conditions.
To Be Successful You Need To Understand The Nature Of The Beast
“Pre-existing” injuries can be divided into two categories (for simplicity) – prior complaints of “pain” and prior complaints of “functional restriction”.
“Pain” is a complex concept to understand. There is no universal way of measuring it. It completely changes from individual to individual and to make it even more complex it changes within the same individual depending on the state of their mind. A person who is very upset and depressed may experience more pain than a similarly injured person going for a gold medal at the Olympics.
Pain is also divided into “pain threshold” and “pain tolerance” – these are not the same thing. They are both affected by your state of mind. Your pain “threshold” is your body’s sensitivity to pain so at what point will it register pain. Your “tolerance” is the degree of pain that you can withstand before you must stop doing a certain activity. People can have any combination of low, medium or high “pain thresholds” and low, medium or high “pain tolerances” and these may vary depending on mood or task.
It is possible for a person to have a pre-existing medical condition (most commonly spinal degeneration) with pain that sits below their “pain threshold” (therefore unnoticed and asymptomatic) who suffers an injury that causes pain to eclipse the threshold so that it is now noticed. A person may have pre-existing spinal pain from the degenerative processes however have a high “pain tolerance” which is lowered due to the psychological trauma of the accident.
“Pain” is a useful tool in understanding an individual as well as the injury but it should not be used as the sole marker for loss when calculating a person’s compensation.
Any lawyer worth his salt will know that prior complaints of “pain” will not withstand a barrage of evidence supporting prior functional capacity and will quickly and easily dispatch any counter-arguments posed by insurers.
“Function” is a concept that can be better understood. It can be objectively universally tested. You can create a baseline level of function to test against and use as a marker for loss. Function is not immune from the psychological elements as well but it is a stronger unit of measurement.
Dealing with prior complaints about “functional restriction” is more of a concern than prior pain. This can affect a claim and requires an experienced lawyer to completely understand the individual and place the prior complaints into the context in which they were made and the reasons for the complaint originated. And then cross referencing that against the mechanics of the subject accident, the bio-mechanics of the individual and the reported reduction in functional capacity.
So a painter might complain about a shoulder injury restricting his capacity to move his arm. An inexperienced lawyer or insurer may make assumptions about which segment of the range of motion is restricted without actually asking the claimant directly. In this example we find out that it is the bottom quarter of the claimant’s range of motion that is restricted. This won’t functionally impact their ability to paint above shoulder height which might be 95% of their daily work. If the claimant then has an accident and loses the top quarter of their range of motion that might prevent them from being about to do 70-80% of their work. So even though we have a shoulder complaint and a reported reduction in the range of motion it still needs to be referenced against the impact on a person’s ability to work.
If a person has a prior injury which has not healed and they are then in an accident, it is up to a medico-legal expert to assign the percentage of “pre-existing” functional restriction as against the accident-related functional restriction. You would need to gather evidence from both sides of the equation to help bolster the expert report.
WHAT ABOUT JOHNNY FAKING HIS PAIN AND INJURY?
It is often said so-and-so is “faking” their “pain” to get more money. In order to test this statement, remembering that pain is different for everybody, we need expert opinion based on good evidence to (a) look at the mechanics of the accident and consider the forces involved and determine the minimum likely level of pain you would associate with that type of accident (b) look at the contemporaneous medical evidence and reporting to friends, relatives and co-workers (c) have regard to the personal characteristics of the individual in question and place their personal bio-mechanics (short limbs/long limbs/unusual features) into the subject accident to test the forces at play and determine the minimum base level of pain you would expect (d) have regard to corresponding activities that might show inconsistencies between what reportedly causes pain and what their capacity to do certain tasks is and so on.
If we draw a conclusion that the subject accident involved low forces, there is no contemporaneous medical evidence to show high levels of injury, there is no reporting to GP or friends, family or co-workers and there is nothing specifically different about the bio-mechanics of the individual then we must consider the psychosomatic causes for the reported high levels of pain. We would run a similar exercise (having regard to individual pain thresholds and tolerances) to determine what the cause for the reported pain levels might be.
It is important to remember that pain is just a signal from the brain to the body. Therefore it is highly possible for the brain to create pain which cannot be physically explained. If this is the case your claim could quite easily live or die by the sword. If you are considered a credible witness – and there is a long list of ways to test credibility – your evidence has a good chance of being accepted. If you are not considered a credible witness your evidence does not have a good chance of being accepted and your claim could potentially lose.
So to fake pain you need to withstand the barrage of references and cross references physically and psychologically and you need to be a person of good credibility when all else fails. Stumble anywhere along the way and your claim could fail.
That’s why it is easiest and best to be honest and upfront.
So when a person talks about “pre-existing” injuries being the reason why you don’t have a claim. Make sure you get a second opinion from a lawyer who is experienced in dealing with these types of claims.
ILP Legal Practitioner Director
Level 13, 50 Cavill Avenue, Surfers Paradise 4217
T: 07 5635 4487 | F: 07 5635 4201