Chronic Pain Claims Guide

Introduction

Personal injuries can sometimes cause unforeseen and long-lasting consequences. One such consequence, which can arise from major or minor injuries, is chronic pain.

Developing chronic pain after an accident can turn a relatively common soft-tissue injury, such as whiplash or a minor back injury, into something drastic and life- changing – perhaps with permanent effects.

This guide provides background information on making a personal injury claim for injuries which include chronic pain. As chronic pain conditions can be poorly understood, personal injury claims involving chronic pain present a number of additional challenges. These need to be handled with care and expertise to ensure you receive the right treatment, support and compensation.

If you believe you may have developed a chronic pain condition as a result of an injury suffered in an accident, it is important to get legal advice from specialist solicitors who understand the unique nature of chronic pain claims.

At Truth Legal, our experienced personal injury solicitors have helped many clients recover compensation for chronic pain conditions. If you would like to discuss making a claim with us, please contact us.

If you already have other lawyers working on your personal injury claim, you can always switch solicitors to Truth Legal. This is crucial if your existing lawyers are not taking your chronic pain symptoms seriously. Even if they are, you should also consider whether you are satisfied that they have the skills and experience to investigate your condition as thoroughly as it should be.

What is chronic pain?

There is no single, accepted definition of chronic pain, but the term is generally used to mean persistent or recurring pain.

There are many technical definitions of chronic pain. For example, the World Health Organisation’s International Classification of Diseases (ICD-11 – entry MG30) defines chronic pain as pain which “persists or recurs for a period longer than 3 months”.

The entry also defines pain itself as “an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.”

Chronic pain can be contrasted with the acute pain which comes from a direct injury or from an illness. As unpleasant as any pain may feel, acute pain serves a useful purpose in warning you of damage, problems, or threats to your safety. For example, burning your finger on a flame causes an immediate pain response and the natural reflex is to pull your finger back. Chronic pain, however, is often characterised as providing no such ‘survival value’. The body is sending constant or repeated warning signals but without any obvious cause or purpose.

Some of the most common explanations for chronic pain are that it stems from psychological sources or the body’s central nervous system. What causes a chronic pain condition to arise in the first place, however, can be even more difficult to determine.

If you have developed a chronic pain condition following an accident, it is something which needs to be investigated thoroughly. Chronic pain can have a huge effect on your life, and on the lives of those around you. If this has been caused by someone else’s negligence then it may mean you have suffered much more harm than originally thought as a result of your initial injuries in the accident.

Different chronic pain conditions

Chronic pain is not fully understood by medical science. This can make it difficult for you to have your symptoms recognised and properly supported or compensated.

Chronic pain conditions can also take many forms. There may be some physical changes to the body which have caused or contributed to the development of chronic pain symptoms. Equally, there may be no detectable physical changes at all.

Psychological factors are thought to play a part in the vast majority of chronic pain conditions. In some conditions, they might be considered the sole source of the chronic pain.

If your chronic pain is thought to be entirely psychological, it can be very difficult to take in. However, it is important to recognise that ‘psychological’ does not mean ‘made up’. It does not invalidate your symptoms.

We perceive everything through our brain and senses. If something has gone wrong with that perception process it can be as real for you as anything else in life.

Below are some of the different kinds of chronic pain condition:

Chronic Pain Syndrome

Chronic Pain Syndrome is a name used widely in connection with chronic pain. It is a general term, but often refers to situations in which long-lasting pain has become linked with further complications, such as depression, anxiety, tiredness, and other psychological or emotional reactions. These complications may then increase sensations of pain, setting up a ‘vicious cycle’ – e.g. you become depressed about constantly feeling pain and the depression in turn heightens your sensitivity to that pain.

Experiencing chronic pain in this way can naturally have a big impact on someone’s life, perhaps causing them to lose their livelihood or change relationships with their loved ones. Recognising these effects can also create additional pressures, which may feed into, and further complicate, their condition.

If it has developed following an injury, Chronic Pain Syndrome will often persist even after the initial injury has healed.

Complex Regional Pain Syndrome (or Reflex Sympathetic Dystrophy)

Complex Regional Pain Syndrome is one of the more easily identifiable chronic pain conditions, although it is a very rare and has strict criteria for diagnosis. The disorder usually affects arms or legs, causing localised effects such as:

• Swelling
• Discolouration of the skin (usually red or purple blotches)
• Burning pain
• Increased sensitivity to touch
• Hot or cold sensations
• Changes to hair or nail growth in the affected area

The root of Complex Regional Pain Syndrome is believed to be in the central nervous system. The symptoms of increased sensitivity are thought to develop from a dysfunction of the body’s system for inhibiting pain signals.

The visible symptoms, such as the swelling and discolouration, are then believed to be the result of an overactive response to the pain. Again, this sets up a vicious cycle where the body’s response to the triggering pain amplifies that pain – and so on.

Somatoform Disorders

This term actually covers a range of chronic pain conditions. The unifying element is an experience of physical pain by the sufferer without any obvious, physical evidence to explain its cause.

Unlike some other kinds of chronic pain disorder, Somatoform Disorders are ones in which the ongoing chronic pain is attributed to an entirely psychological source.

Chronic Fatigue Syndrome (also known as Myalgic Encephalomyelitis – M.E.) Chronic Fatigue Syndrome, as the name suggests, is long-term condition characterised by extreme fatigue. However, it can also include many other symptoms, such as

• Muscle and joint pain
• Headaches
• Nausea
• Dizziness
• Difficulties focusing, thinking or remembering.

The cause of Chronic Fatigue Syndrome is not known; theories suggest it may be triggered by a number of causes including psychological stress and viral infections.

Fibromyalgia

Both Fibromyalgia and Chronic Fatigue Syndrome are sometimes labelled as Chronic Widespread Pain conditions. Although symptoms can vary between them, widespread pain and ongoing, inexplicable fatigue are common elements.

Some of the symptoms of Fibromyalgia include:

• Lower back pain
• Headaches
• Arthritis
• Muscle spasms
• Anxiety
• Depression
• Fatigue
• Tinnitus
• Bladder problems
• Irritable Bowel Syndrome

Some medical experts believe that the cause is found within how the brain and central nervous system handle the pain signals it receives from around the body,
‘magnifying’ the incoming sensations to abnormal levels.

The challenges of making a personal injury claim for chronic pain

When you make a personal injury claim, whether it follows a road traffic accident, accident at work, clinical negligence, or any other kind of incident, it is for you as the party making the claim to establish your case. This means proving that the party you are claiming from was negligent and that this caused the harm you have suffered.

With claims involving chronic pain, the challenge is usually proving that the accident in question caused your symptoms to develop and the extent of such symptoms. Because of the nature of litigation, the person or organisation you are claiming from may try to discredit or undermine the extent of your injuries, or to argue that what you are experiencing is not related to the injuries you suffered in the accident.

There are a number of potential features in chronic pain claims which a defending party may use to try to argue that they are not responsible. These include:

• A relatively minor initial injury – If you suffer from chronic pain after a relatively minor injury, the chronic pain condition can appear disproportionate in comparison. This is a common feature of many chronic pain cases, but it can lead to challenges from the party defending the claim because it seems inconsistent with the initial injury. Of course, with an understanding of chronic pain conditions, it is possible for chronic pain to occur after a minor accident. Naturally, chronic pain symptoms can develop after major injuries too, but in those situations the party defending the claim is often more likely to accept the chance that serious, possibly permanent injuries were caused.
• Delayed development of chronic pain symptoms – A number of chronic pain cases, which follow on from an injury, display a strange pattern where the initial injuries heal but the injured person continues to suffer symptoms with the development of chronic pain. Because this is an unusual course for recovery to take, it is often used to dispute any link between the chronic pain and the accident.
• The subjective nature of chronic pain – Only you can understand the pain that you feel; there is no scientific way of measuring it. You can describe the extent of the pain but your perceptions may be different from those of other people. This adds difficulty to proving the existence and extent of your chronic pain symptoms.
• Psychological factors – Chronic pain which is caused by a psychological source (either in full or in part) is also difficult to prove. Studies into chronic pain conditions have indicated that people with existing psychological conditions, such as depression and PTSD, are at greater risk of developing chronic pain disorders. This can lead to arguments that the chronic pain stems from these pre-existing conditions rather than the accident-related injuries. There is, however, a legal principle which prevents a negligent party from avoiding responsibility for harm just because the injured party was more vulnerable to suffering it. This is called the ‘eggshell skull’ principle.

However, you should not let any of these potential objections stop you from making a claim. Instead, you can recognise and prepare for these challenges, particularly by instructing solicitors who have specialist experience of chronic pain claims, such as Truth Legal.

Additionally, there are steps you can take to assist your claim, such as keeping records of your symptoms at the times when you are experiencing them. See the
section below: ‘Is there anything I can do to help my chronic pain claim?’

How much is a chronic pain condition worth?

Compensation for an injury works on the principle that the greater harm you have suffered, the more you should be compensated. Chronic pain conditions are typically long-lasting or permanent consequences, so if it can be proved that you have developed chronic pain because of someone else’s negligence, the compensation value can be substantial.

When valuing a personal injury, lawyers will take into account two general considerations:

1. How much pain and suffering an injury has caused you.
2. How the injury has affected your enjoyment of life.

Chronic pain conditions are potentially high value because they often involve a high extent of pain and suffering, and over an extended period of time. In addition, chronic pain almost invariably has a high impact on the sufferer’s enjoyment of life and ability to work.

The Judicial College Guidelines is one of the main tools used by solicitors and judges to establish a rough valuation for an injury. These guidelines have a section dedicated to different chronic pain conditions, providing brackets of valuations based upon the condition and the severity of the symptoms being experienced.

For example, the guidelines indicate that general ‘pain disorders’, which are of a moderately serious nature, should be valued in the region of £19,770 to £36,120, dependent on circumstances. For severe Complex Regional Pain Syndrome, the guidance suggests that between £49,270 to £78,840 is appropriate.

However, valuing a personal injury claim involves much more than the Judicial College Guidelines. The unique circumstances of your injury have to be taken into account, as well as an examination of previous cases which involve similar injuries and losses. For this reason, you should be very wary of any ‘valuations’ of your chronic pain condition which have been made without detailed knowledge of your circumstances.

If you would like to know more about how personal injury claims are valued, download our free ebook: The Ultimate Personal Injury Compensation Guide.

Can I claim compensation for other losses besides my chronic pain?

Because of the life-changing nature of chronic pain, it is unlikely that the effects of the accident will be limited to just your injuries themselves. If the accident or your injuries cause you to incur other financial losses, it is possible for you to claim compensation for them as well.

For example, you might:

• Take time off work and lose earnings
• Have to pay for medication or treatment
• Incur travel expenses to medical appointments
• Require care and assistance from professionals or loved ones

These are just a few examples of how your injuries could occasion further costs. Our free ebook, The Ultimate Personal Injury Compensation Guide, contains details of typical (and more unusual) kinds of loss which you may incur.

For an idea of how such additional losses are calculated and documented in a personal injury claim, you can look at a sample ‘Schedule of Loss’ in our Legal Library.

How long does it take to complete a claim involving chronic pain?

It is difficult to predict the duration of any personal injury claim. A lot depends on the circumstances of your case and how your injuries progress. However, because of the complexity of chronic pain conditions, and the possibility of facing some of the challenges discussed above, these claims tend to take longer to complete than more straightforward personal injury claims.

If you are suffering from chronic pain, you will normally require specialised medical evidence to document your condition. This can take time to complete properly but it is necessary to ensure your chronic pain is fully evidenced and accounted for as part of your claim.

When will I receive compensation?

Normally, compensation for a personal injury is paid as a single lump-sum at the end of a successful claim. This could be following a judgment given in court or, more commonly, after you have agreed a settlement with the other party.

However, there are ways in which compensation can be paid earlier. This can be particularly useful where you are suffering from prolonged chronic pain symptoms and the complex nature of your injuries means extensive medical evidence and/or treatment is required. If you are struggling financially, receiving some compensation before the claim is fully completed could make a huge difference.

Interim payments

Interim payments are small amounts of compensation paid to you whilst your claim is ongoing. You should think of them as advance payments from your final compensation award. However, you should bear in mind that a defending party will only agree to make an interim payment if they have accepted some responsibility for your injuries.

Other kinds of compensation payment

In rare cases involving very high-value injuries, compensation can be paid as periodical payments or provisional damages, rather than a lump-sum award. Whilst technically possible in cases involving chronic pain, they are normally more appropriate in catastrophic injury claims.

If you would like to know more about interim payments and other ways in which compensation can be paid, our free ebook: ‘The Ultimate Personal Injury
Compensation Guide’ can provide you with further detail.

How long do I have to make a claim for chronic pain?

Personal injury claims can only be made within certain legal time limits. Usually a claim must be made within 3 years of the date on which the injury occurred. If your claim has not been settled or lodged with the court in that time, the general rule is that you will be unable to continue with the claim.

Cases involving chronic pain are also subject to these time limits. However, you may already have a case ongoing, perhaps focused on your original injury rather than any chronic pain which has later developed. If so, it is important to keep an eye on the time limit. Where chronic pain has arisen in the aftermath of a relatively minor initial injury, the time limit will still run from that original injury in most cases. You should seek legal advice from a specialist personal injury solicitor with experience in chronic pain claims if you are at all unsure of your position.

What can I do if my chronic pain condition is ignored or overlooked?

One of the most frustrating aspects of chronic pain can be the feeling of not being taken seriously – the idea that the pain you experience has apparent physical cause so it must be ‘made-up’. If you are currently making a claim and have encountered this attitude from your own lawyers, you need to consider changing solicitors (as soon as possible!) to a firm of specialists who understand chronic pain claims before it is too late.

Already completed claims

If you made a claim which did not include your chronic pain, and it has already been finalised, you will not be able to re-open your claim to seek further compensation.

However, your lawyers who acted in that claim will have been under a professional duty to ensure all of your injuries and losses (caused by the accident in question) were included in your claim before it was completed.

If you reported chronic pain symptoms which your lawyers did not sufficiently investigate, they may have failed in their duty of care towards you. As such, you may be able to claim compensation from your former lawyers instead – for the losses their professional negligence has caused you.

Is there anything I can do to help my chronic pain claim?

If you have instructed specialist solicitors to handle your claim, you have already given your claim a good start. However, it can also be helpful to know some ways to offer your claim the best chances of success. We wrote a blog post with the light- hearted title of: ‘How to be a Good Solicitor’s Client’. Many of the tips there are effective ways of assisting your claim in general, and may prove particularly useful if your chronic pain claim is disputed.

However, some additional steps are:

1. Keep a pain diary – A pain diary should record your symptoms as you experience them, detailing good days and bad days for your symptoms felt worse or better. You could ask a loved one to help you. A record which is kept as close to the relevant time as possible can be very compelling and it may help you to recognise patterns in your symptoms.
2. Don’t exaggerate your symptoms – The evidence you give and how you describe your symptoms will often be crucial in a claim involving chronic pain. You may think that your symptoms have to be excruciating to be taken seriously. This is not the case. Deliberately making your symptoms sound worse than they actually are is morally wrong and will damage the credibility of your claim, making it more likely to fail. You should report your symptoms accurately – good days and bad days – and the pain diary mentioned above can help with this.
3. Co-operate as fully as possible with medical appointments and rehabilitation – Chronic pain can be debilitating and may understandably stop you from getting around. However, medical appointments allow medical experts to give their opinions on your symptoms and this is a crucial part of supporting your claim. Similarly, certain kinds of rehabilitation, such as cognitive behavioural therapy (CBT), have been observed to ease chronic pain symptoms. Making every possible effort to attend such appointments can
   benefit both your claim and your well-being.

‘No Win, No Fee’ chronic pain claims

You may be worried about funding a claim for chronic pain compensation, or the financial effects of making a claim but being unsuccessful.

Truth Legal offer ‘No Win, No Fee’ Agreements wherever we can, as a way of funding a claim. These agreements mean that, if we are unsuccessful in recovering compensation for you, you will not have to pay our legal fees, except in very rare situations.

When you are successful in your claim under a ‘No Win, No Fee’ Agreement, a small proportion of your compensation payment will go towards our fees.

Any funding arrangements for your claim are always explained to you in full detail before we begin working on your case. However, please do not hesitate to contact us if you have any questions about this side of making a personal injury claim.