In Canada, 9% of all disability payments are for FibroMyalgia Syndrome (FMS).

In population studies, prevalence of FMS varies from 1 in 200 men to nearly 1 in 10 elderly women. Prevalence is no different in poorer countries (Poland, for instance) or where disability compensation is not available (Israel, for example).

Though the 1994 International Consensus Report (Vancouver, BC) recommended that the term Post-traumatic Fibromyalgia Syndrome be abandoned for clinical research purposes, this condition remains a common focus of personal injury Actions.

In litigating or defending post-traumatic FMS, counsel should be aware of the following generalisations:

1. The pre-injury medical records will yield evidence of pre-existing FMS.

2. Characteristic objective abnormalities in cerebrospinal fluid, blood and on ElectroEncephaloGraphy (EEG) are not routinely tested for clinical purposes.

3. Neither physical trauma nor emotional stress Cause the condition, but both can trigger a relapse.

4. Post-traumatic symptoms and signs of FMS last for weeks to a few months at most, before returning to baseline.

5. The condition is compatible with full-time employment.

In up to 10% of cases, review of 5 years’ pre-injury medical records will reveal no evidence of pre-existing symptoms of FMS or myofascial pain syndrome.

Such pre-injury records should be routinely available to defence counsel. The court’s denial on "fishing expedition" grounds makes no sense: personal injury occurs in a medical context and its outcome can be understood only in that context.

It follows that in a minority of clients widespread pain, with the requisite 11/18 tender points, will appear de novo following compensable trauma. Symptoms and signs will fluctuate over the succeeding months and years, particularly following further trauma and the usual psychological stresses of life.

Because many life events may Cause relapse, disability assessed at a point in time after many months or even years should not be Causally attributed to the injury. The chronic nature of the condition means that actus novus interveniens is probable.

FMS can be malingered. It is self-evident that widespread pain is entirely subjective. It may not be so obvious that litigants can be coached to simulate appropriate tenderness, and to avoid reacting to pressure at "control" tender points.

90% of FMS patients who desire to work are able to do so. However, a majority have to either change jobs or modify their work activities to accommodate their needs.

Symptoms tend to be worsened by computer work, typing, long periods of sitting, stress, heavy bending and lifting. By contrast, certain activities are well tolerated: walking, light sedentary or desk work, and phoning.

About a fifth of FMS sufferers collect disability benefits at some stage of their illness.

In time we will know which of the oases of knowledge in the deserts of our ignorance will prove to be mirages.

Currently, a practicable model for FMS is that of pain threshold.

A person’s pain sensitivity can usefully be considered to be somewhere on a continuum between very high and very low.

Patients with FMS not only have a low pain threshold, but they experience as painful the sensations of normal fatigue and physical pressure that others experience as pleasurable or neutral (allodynia, Greek for "other pain"). .

The body chemistry, including that of brain and spinal cord, may be disturbed for some weeks following physical and psychological trauma. Such disturbance can materially lower the pain threshold and, in those with FMS ("thin skull"), the lowering may result in spontaneous pain and disability.

Practical approach to FMS disability

Here are some practical suggestions for both claimant and defence counsel to consider when FMS disability is being litigated.

1. Routinely review at least 5 years of pre-injury or pre-disability medical records for evidence of pre-existing FMS-related symptoms.

2. Insist on in-depth psychological diagnosis, particularly for evidence of potentially treatable conditions such as depressive disorder, Post Traumatic Stress Disorder (PTSD), undisclosed childhood trauma, pain disorder, as well as for other somatoform disorders, personality disorder and malingering.

3. If malingering is suspected, consider requiring testing of blood for natural killer cells; nocturnal EEG for alpha-wave intrusion into delta-wave sleep, and cerebrospinal fluid for serotonin by-products, substance P and nerve growth factor;. Spinal tap for cerebrospinal fluid is not without risk - but then even routine venepuncture has occasionally Caused cardiac arrest.

4. Use the Activities of Daily Living rating as being the best instrument currently available for assessment of FMS disability.

5. Focus multidisciplinary medical expert opinion on identifying or excluding

a) predisposing factors - stressful life events, chronic medical or psychiatric illness, personality disorder;

b) precipitating factors - infection, trauma, emotional stresses;

c) perpetuating factors - dislike of work, medical or psychiatric illness, psycho-social problems, sleep disruption, faulty attribution of symptoms.

6. Ensure each of the following interventions has been explored:

a) therapy - physical, occupational, rehabilitation, medication;

b) information - education, counselling;

c) adaptation - ergonomic assessment, modification, change of job.

FMS following personal injury is common, and is difficult to both litigate and defend. The potential Quantum of Damages is often high.

Counsel who thoroughly and exhaustively explore the claimant’s unique version of this complex condition can reasonably expect to reap financial reward.