It can’t happen because it doesn’t happen often: The Insurance defence to Chronic Pain, Fibromyalgia, Fracture injuries and Wide-spread pain
If someone were to tell you that John F. Kennedy Jr. did not die in a plane crash because the statistical possibility of dying in a plane crash was so small, you might look at that person like they were nuts.
However, this is exactly the kind of argument that is being made by some insurance lawyers, insurers and doctors who are hired by insurance companies, when dealing with personal injury lawsuits, car accident injuries and disability claims involving chronic pain, firomyalgia, chronic fatigue syndrome, and other associated conditions. The argument is that the vast majority of people who sustain non-fracture injuries get better – so this person must have recovered too. This argument is being made across Ontario Canada, including in Whitby, Ajax, Oshawa and the Greater Toronto Area.
However, once the difficulty with the position is pointed out, things can change. My experience is that, while the insurance company or their doctor may take that position in an initial long term disability or car insurance denial letter, or an insurance doctor may take that position in their medical report, they will readily admit that certain people don’t get better when pressed in questioning.
That being said, reference to the statistics about the number of people who do recover from non-fracture injuries, can be a powerful tactic. It automatically turns everyone’s mind to the obvious question: “why didn’t person x recover when so many others do”. A failure to adequately address that question can be deadly to an injured person’s lawsuit claim. A personal injury lawyer’s duty in these types of cases is to figure out that question together with the injured person and highlight why this particular injury case had a poor outcome.
Even those with fractures can face these types of arguments. In those types of cases, it is important to find and highlight the reason for the difficulty. Ie: Did the fracture unite properly? Was it a fracture that was “comminuted”, was it an intra-articular fracture? Did the fracture affect joints, a person’s gait or an important area of movement or load-bearing? Is there irritation from the hardware that was installed during a surgery? Did surgery not go ahead because of a person’s age or some other reason?
A person’s health before an accident can be very important in all cases as well. Any lawyer who tries to side-step a history of problems before the accident is missing a valuable opportunity to explain things to a judge or jury or insurance company. A person with some pre-accident issues was probably more vulnerable to injury than a 19 year old swim team captain. That information has to be built into the case to assist everyone in understanding why the injured person has ongoing pain and problems. Ontario’s law says that a person who causes an accident or injury takes their victims as they find them and cannot just say “someone else wouldn’t have been injured as badly”.
Another very important component is to consider the mechanics of how the accident happened, the forces that were applied to the injured person in the collision and the force of the impact on the particular person. Those are things that are sometimes helpful when seeking to explain to the jury why this particular person has ongoing pain and problems.
Witnesses can also have a very powerful impact when presenting a case. Obtaining statements from people who know and have treated the plaintiff and can attest to the person’s honesty, ongoing problems and candour can provide Trying to obtain a report from a person’s family doctor can often be a very important step.
I am a personal injury lawyer in Whitby (serving Durham- Ajax/Oshawa, Bowmanville) and in Toronto. I deal with these types of issues in my practice on an ongoing basis. I am happy to provide free consultations in order to give our thoughts on your claim. Please feel free to call us.
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