by Kaitlyn MacDonell, Associate

The existence of chronic pain is often talked about but rarely understood. This type of injury is invisible to the naked eye. Chronic pain does not appear on an x-ray, ultrasound or MRI image. Plaintiff counsel face great difficulty in proving the subjective complaints of clients without objective evidence.

The Courts have struggled with defining what constitutes chronic pain. The Supreme Court of Canada has acknowledged that chronic pain is “pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.”

The Superior Court of Ontario recently pronounced on a chronic pain case resulting from a MVA that occurred on February 12, 2007 (Maxwell v. Luck). At the conclusion of the Trial, the Defendant brought a threshold motion. Since the collision, the Plaintiff returned to work as an exotic dancer, had two successful pregnancies and began job retraining but was not able to complete it due to her limitations.

The Plaintiff called an orthopaedic surgeon with a specialty in chronic pain and the Defendant used a different, well-known expert. What differentiated the Plaintiff and Defendant experts was their appreciation of chronic pain and whether objective findings were made. The Defendant’s doctor “categorically dismisses chronic pain” when he is unable to find a mechanical basis for the complaint. He gave the Plaintiff a cursory examination which consisted of him watching her walk, do neck extensions and rotations, and provide a summary of her history. However, the Plaintiff’s expert found objective findings, which included decreased range of motion, muscle tightness and tenderness to palpitation. The Defendant’s doctor dismissed these findings as “simple and uncomplicated”.

Justice Howden was satisfied that the Plaintiff’s doctor had the experience and more relevant expertise to assess a patient who is “affected not by a broken bony mechanism but by less obvious musculo-ligamentous or tissue/nerve trauma and chronic pain which is only partially understood”. The Court rejected the opinion of the Defendant’s doctor and found that he did not have an understanding of the fundamental aspects of chronic pain, a condition that often has no objective evidence.

This case highlights the importance of retaining an expert who is proficient in the area of chronic pain, a unique and evolving speciality. At Howie, Sacks & Henry, we represent all seriously injured accident victims, including those with brain injuries, fractures, psychological conditions, and chronic pain. Every accident victim is unique and we take all necessary steps to prove our clients’ damages and achieve maximum recovery for them.

Howie, Sacks & Henry LLP – Personal Injury Law – Kaitlyn MacDonellKaitlyn’s practice includes acting for victims who suffer from chronic pain. For more information regarding chronic pain accident victim’s rights in general, please contact Kaitlyn MacDonell at 647-260-4498  or Michael J. Henry at 416-361-0889.

 

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