The Birth of Chronic Benign Pain

First published in The Lawyers Weekly December 1, 2000,  Vol. 20, No. 29

The claimant is rear-ended, suffers whiplash and FibroMyalgia Syndrome, is indefinitely incapacitated. The defendant’s car then slams into a tree, resulting in multiple fractures of arm and leg, abdominal contusion, moderate Traumatic Brain Injury - and complete recovery. Why does long-term disability bear little relation to the severity of the injury?

Nociception is the appreciation of harm, the awareness of injury that triggers the experience of pain. In acute pain there is a direct and readily understood causal linkage with suffering and pain behaviour: awareness causes pain - pain causes suffering - suffering causes behaviour. Physical injury to tissue typically takes up to three months to heal. During that three months, the injured tissues continue to trigger acute pain.

In chronic benign pain ("pain, that persists beyond the normal time of healing..."), the causal linkage between the appreciation of injury and the experience of pain similarly continues for up to three months. During those weeks of healing, experts in physical medicine (sports medicine specialists, orthopedic surgeons, rheumatologists, physiatrists, general practitioners) can document and explicate Medical Causation.

In a quarter to a third of people living in North America - the proportion is different in other cultures - something different now happens. Although the physical injury is fully healed, the pain, suffering and behaviour continue. The tissue damage that gave birth to the pain is gone, but pain continues to cause suffering, and suffering continues to cause pain behaviour.

Pain, suffering and pain behaviour now have a life of their own. Although the umbilical cord of Medical Causation has already been cut, the birth of this free-living creature took place from the womb of acute injury. If the acute injury was compensable, the requirements of tort law are fulfilled - but the causal link has now vanished.

Asking physical medicine experts to undertake an Independent Medical Examination to determine Cause In Fact is an exercise in futility. Although it now has a life of its own, this creature’s birth was already complete by three months after the injury. The umbilical cord that linked nociception to pain has long shrivelled. Current history and examination by even the most skilled clinical expert cannot recreate the Medical Causation.

Whether chronic benign pain predated the injury is, of course, a whole other question. The answer lies in the clinical records for one to five years before the injury.

Neither the client’s current account of the evolution of symptoms, nor Independent Medical Examination, will shed further light on Medical Causation.

Although empirical research on revisionist memory in claimants is remarkably sparse, personal injury litigators know well that claimant memory for the evolution of symptoms is self-serving. If it is discrepant with contemporaneous documentation by care-givers, the claimant’s recall favours simple, direct causal relationships. This distortion is a normal function of the human mind, not a conscious attempt to deceive.

Similarly, differences in cause attributed by Independent Medical Examiners do not usually reflect their individual clinical skills or even disagreements about objective findings. Their conclusions often have more to do with individual belief systems than with scientific discipline. In the final analysis, claimant experts are generally saying little more than "I believe the patient", defence experts are reporting, "I am sceptical..."

The only eye-witnesses to the genesis of chronic benign pain are those care-givers who were present at the birthing. Their contemporaneous records are the sole source of objective medical evidence on which Legal Causation can be established. Skilled analysis, integration and interpretation of that medical documentation prepare the stage for the legal debate.

Other medical and paramedical experts can however help the Court understand the mechanism whereby Disability persists. Psychiatrists and psychologists can analyse and describe the Psychological Thin Skull that permitted a fully self-healing physical injury to cause long-term pain. These professionals should also provide the evidence on which the Court can determine whether the claimant is malingering.

Tough mindedness, cultural values and Secondary Gain have been proposed as components of the Psychological Thin Skull. These are value judgments that generate more heat than light. There is prolific research on the psychological profiles of benign chronic pain sufferers, generally using terminology that is descriptive rather than prejudicial.

The underpinning of this medicolegal dilemma is that our model of human functioning is flawed. Chronic benign pain cannot be explained in purely mechanistic terms. If we think of body and mind as a duality rather than a continuum - as most lawyers and most doctors tend to do - we will continue to wrestle the problem and never win through.

We pay lip-service to the inter-relationship between physical and mental physiology while holding irrational beliefs about the nature of pain and suffering. "It’s all in her mind" is rarely far from consciousness when we think about chronic benign pain. It bears repeating that, absent malingering or exaggeration, the pain is real. Just because our rational and intuitive understanding of the phenomenon is incomplete does not mean that it is imaginary.

I am not legally qualified to enter the debate whether the Tortfeasor should be held responsible for all consequences of the pain - suffering - pain behaviour that demonstrably originated in Tortious injury. Whether we, as a society, will continue to compensate long-term disability after relatively trivial injury is a legislative rather than a judicial decision.

I recommend that counsel for the claimant explicitly acknowledge that the first link in the chain of causation is now broken, that the causal connection between experience of injury and pain can only be reconstructed from the contemporaneous clinical records.

Rather than evading the issue of Psychological Thin Skull, I suggest pre-emptively asking a psychiatrist or psychologist to determine and document the evidence for pain (somatoform) disorder according to Diagnostic and Statistical Manual, 4th Edition (DSM-IV) criteria. The expert should be asked simultaneously to assess evidence for malingering and, if appropriate, depressive disorder, Post Traumatic Stress Disorder and any other psychological disorder that might co-exist.

Copyright © Handbook of Legal Medicine