singerkwinter
New Member
CHRONIC PAIN? - DISABILITY CLAIM DENIED
From the perspective of a personal injury lawyer who represents only Plaintiffs, there is probably no greater challenge than the disability claim of a person suffering from chronic, disabling pain where there is no "objective" evidence to support the condition. Anyone involved in the treatment of pain knows that one can suffer unremitting pain and be totally disabled from working yet not have objective evidence to support the complaints. Establishing this condition to an insurance company for purposes of obtaining monthly disability benefits can be a very difficult task.
Insurance companies understandably approach these claims with a great deal of skepticism. Firstly, there is often no objective evidence such as an X-ray, MRI, CT scan or other tests to confirm the patient's complaints. Even a condition such as fibromyaglia, while recognized by rheumatologists (although not so quickly recognized by some other specialties) is often seen by insurance companies as a suspicious condition and insurers often do not readily accept the "pressure point" test as an objective measure of disability. Certainly the main evidence that a person is suffering from chronic pain is the word of the sufferer. To an insurance company which is being asked to payout many thousands of dollars often over a period of many years, the word of the claimant alone is simply not enough.
HOW TO SUPPORT THE CLAIM
The first question I ask a chronic pain client is "Does your family doctor confirm your disability?" Such support is essential. After all, it is the family doctor who has usually seen the patient on numerous occasions and very often has known the person for many years and will be most familiar with the patient's medical history. The family doctor will have had an opportunity to have seen the patient when he or she was not suffering from this condition and can compare the patient's conduct, behavior and presentation both before and after. A sympathetic and understanding family doctor who supports the claim is a must.
SPECIALIST REFERRALS
Unfortunately, the family doctor's opinion, as essential as it is, will usually not be sufficient to satisfy an insurer. Insurance companies often see the family doctor as an advocate for the patient, and will very often discount the family doctor's opinion. While this in no way diminishes the importance of the family doctor's support. It is important that the patient be referred to a specialist to confirm the diagnosis that supports the claim of total disability. Here again, the family doctor must be understanding and knowledgeable of these types of conditions. This is important not only to support the claim but also to know what specialist to refer the patient to. Usually, patients suffering from chronic pain will be referred to such specialists as physiatrist, psychiatrist, or rheumatologist. If there is a referral to an orthopaedic surgeon, it would usually be made not to confirm a diagnosis but for the purposes of eliminating any possible orthopaedic injury or condition. As with the family doctor, referral to a specialist who understands and treats chronic pain is most important. This is particularly so as the insurer will most certainly have the claimant seen by a doctor of its own. In many cases, such a doctor will often be someone who is skeptical of chronic pain. I often see reports making statements such as "there is no objective evidence to support this disability", "there is pain magnification", "and secondary gain". So aligned are some insurers with certain doctors that in a city the size of Toronto, where there are numerous doctors readily available to perform examinations, an insurer will wait months to have a specific doctor see the claimant for what is commonly misdescribed as "an independent" medical examination.
SURVEILLANCE
Probably the most effective and often used "weapon" of insurance companies in disability claims is surveillance. Following the claimant around to observe his or her activities, photographing the person, and taking videos of the person's activities can be very effective in challenging a disability claim. Most people suffering from pain, while unable to maintain full-time employment, are usually not confined to their bed or home but will go about their day to day activities albeit at a slower pace. Very often, such persons are in great pain and under heavy medication. By following a person around and video taping his or her activity the insurer will compare what the person is doing with what he or she is reporting to the treating doctors. Very often there will be a significant discrepancy in the complaints and the activities. If you are telling your family doctor that you can stand for only 15 minutes but are seen on a video walking around a Home Depot store for 45 minutes, this can cause a significant problem in the case. Similarly, if someone is seen engaging in strenuous activities while at the same time claiming that he or she can lift only very light loads, this can cause great difficulty in proving a claim. Where credibility is so important, I recommend to clients that they be cautious as to what activities they are engaging in. Certainly I would never suggest that anyone purposely curtail their activities. What I advise clients is that they should not do anything 'heroic' or strenuous which if observed on a video tape might make one seriously wonder if the person was disabled. I ask the client to imagine he or she sitting on a jury and watching such a tape. Would a person helping their neighbour move furniture likely be considered disabled?
Of course, the insurers have heard all the usual excuses when the claimant is confronted with such surveillance. "I really paid for that Mr. Kwinter, I was in bed for the next week", or "Mr. Kwinter they don't realize I was on 5 Tylenol 3's when I did that". The bottom line is, there is a good chance you are being watched. If you are presenting a claim for disability bored on chronic pain, govern yourself accordingly.
CONCLUSION
Disability claims for chronic pain are difficult claims. Insurance companies will often fight these claims hoping to discourage the claimant from proceeding or perhaps force the claimant into a low settlement by putting up a strong defence. With appropriate legal advice, strong medical support, and provided the claimant's credibility is not seriously compromised, these claims are usually resolved - most often in the client's favour.
From the perspective of a personal injury lawyer who represents only Plaintiffs, there is probably no greater challenge than the disability claim of a person suffering from chronic, disabling pain where there is no "objective" evidence to support the condition. Anyone involved in the treatment of pain knows that one can suffer unremitting pain and be totally disabled from working yet not have objective evidence to support the complaints. Establishing this condition to an insurance company for purposes of obtaining monthly disability benefits can be a very difficult task.
Insurance companies understandably approach these claims with a great deal of skepticism. Firstly, there is often no objective evidence such as an X-ray, MRI, CT scan or other tests to confirm the patient's complaints. Even a condition such as fibromyaglia, while recognized by rheumatologists (although not so quickly recognized by some other specialties) is often seen by insurance companies as a suspicious condition and insurers often do not readily accept the "pressure point" test as an objective measure of disability. Certainly the main evidence that a person is suffering from chronic pain is the word of the sufferer. To an insurance company which is being asked to payout many thousands of dollars often over a period of many years, the word of the claimant alone is simply not enough.
HOW TO SUPPORT THE CLAIM
The first question I ask a chronic pain client is "Does your family doctor confirm your disability?" Such support is essential. After all, it is the family doctor who has usually seen the patient on numerous occasions and very often has known the person for many years and will be most familiar with the patient's medical history. The family doctor will have had an opportunity to have seen the patient when he or she was not suffering from this condition and can compare the patient's conduct, behavior and presentation both before and after. A sympathetic and understanding family doctor who supports the claim is a must.
SPECIALIST REFERRALS
Unfortunately, the family doctor's opinion, as essential as it is, will usually not be sufficient to satisfy an insurer. Insurance companies often see the family doctor as an advocate for the patient, and will very often discount the family doctor's opinion. While this in no way diminishes the importance of the family doctor's support. It is important that the patient be referred to a specialist to confirm the diagnosis that supports the claim of total disability. Here again, the family doctor must be understanding and knowledgeable of these types of conditions. This is important not only to support the claim but also to know what specialist to refer the patient to. Usually, patients suffering from chronic pain will be referred to such specialists as physiatrist, psychiatrist, or rheumatologist. If there is a referral to an orthopaedic surgeon, it would usually be made not to confirm a diagnosis but for the purposes of eliminating any possible orthopaedic injury or condition. As with the family doctor, referral to a specialist who understands and treats chronic pain is most important. This is particularly so as the insurer will most certainly have the claimant seen by a doctor of its own. In many cases, such a doctor will often be someone who is skeptical of chronic pain. I often see reports making statements such as "there is no objective evidence to support this disability", "there is pain magnification", "and secondary gain". So aligned are some insurers with certain doctors that in a city the size of Toronto, where there are numerous doctors readily available to perform examinations, an insurer will wait months to have a specific doctor see the claimant for what is commonly misdescribed as "an independent" medical examination.
SURVEILLANCE
Probably the most effective and often used "weapon" of insurance companies in disability claims is surveillance. Following the claimant around to observe his or her activities, photographing the person, and taking videos of the person's activities can be very effective in challenging a disability claim. Most people suffering from pain, while unable to maintain full-time employment, are usually not confined to their bed or home but will go about their day to day activities albeit at a slower pace. Very often, such persons are in great pain and under heavy medication. By following a person around and video taping his or her activity the insurer will compare what the person is doing with what he or she is reporting to the treating doctors. Very often there will be a significant discrepancy in the complaints and the activities. If you are telling your family doctor that you can stand for only 15 minutes but are seen on a video walking around a Home Depot store for 45 minutes, this can cause a significant problem in the case. Similarly, if someone is seen engaging in strenuous activities while at the same time claiming that he or she can lift only very light loads, this can cause great difficulty in proving a claim. Where credibility is so important, I recommend to clients that they be cautious as to what activities they are engaging in. Certainly I would never suggest that anyone purposely curtail their activities. What I advise clients is that they should not do anything 'heroic' or strenuous which if observed on a video tape might make one seriously wonder if the person was disabled. I ask the client to imagine he or she sitting on a jury and watching such a tape. Would a person helping their neighbour move furniture likely be considered disabled?
Of course, the insurers have heard all the usual excuses when the claimant is confronted with such surveillance. "I really paid for that Mr. Kwinter, I was in bed for the next week", or "Mr. Kwinter they don't realize I was on 5 Tylenol 3's when I did that". The bottom line is, there is a good chance you are being watched. If you are presenting a claim for disability bored on chronic pain, govern yourself accordingly.
CONCLUSION
Disability claims for chronic pain are difficult claims. Insurance companies will often fight these claims hoping to discourage the claimant from proceeding or perhaps force the claimant into a low settlement by putting up a strong defence. With appropriate legal advice, strong medical support, and provided the claimant's credibility is not seriously compromised, these claims are usually resolved - most often in the client's favour.
