Chronic pain is a drastically misunderstood disability. Though it affects millions of Canadians at any given time, many chronic pain sufferers report a lack of empathy from the people around them and grave difficulty accessing compensation. The lack of understanding of the illness has contributed not only to the prolonged suffering of those afflicted, but also to North America’s ongoing opioid epidemic. In some cases, improper chronic pain treatments have even necessitated the hiring of personal injury or medical malpractice lawyers.

What is chronic pain?

Broadly, chronic pain can be defined as pain that endures for more than three months after the time of normal healing. The cause of the pain is often unknown or not readily apparent, and generally invisible to friends and family. It often also affects sufferers mentally as well as physically.

The fact that the cause of chronic pain is not readily apparent is particularly important, as it complicates matters from a legal standpoint.

Legal challenges associated with chronic pain

When a person is injured in a car accident or negligent medical procedure, their injuries are often immediately recognizable. Fractured bones require a cast; spinal injuries may necessitate a wheelchair; brain injuries can affect victims in a variety of ways, both physically and cognitively.

These types of injuries can also be easily diagnosed by a physician. Doctors will perform x-rays or CT scans, assess the scope of the damage, and can explain the injury in court. Chronic pain sufferers are rarely diagnosed so easily, and sometimes bear no physical scars. As a result, they often face hurdles when trying to access compensation.

Indeed, the government of Nova Scotia until recently “had a regulation in place that explicitly excluded long-term disability benefits to those suffering from chronic pain,” according to Bernard Gluckstein and Jan Marin in a recent article for The Lawyer’s Daily.

That stipulation was deemed discriminatory and overturned in a landmark 2003 Supreme Court case. In explaining the ruling, Justice Charles Gonthier wrote: “… since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.”

Despite the ruling, accessing appropriate compensation remains a challenge for chronic pain sufferers and the personal injury and medical malpractice lawyers that represent them. As an example, Gluckstein and Marin point to Mandel v. Fakhim, a 2016 Ontario Superior Court of Justice case in which the plaintiff sought $1.2-million in compensation for chronic pain relating to injuries from a 2009 car accident, but was awarded just $3,000 by the jury.

If you or someone you love is suffering from chronic pain stemming from a medical accident, you may be entitled to compensation. Contact Neinstein Personal Injury Lawyers’ team of medical malpractice lawyers today to arrange a free, no-obligation consultation. We can assess your case and advise you on your best path to recovery.

Greg Neinstein

Greg Neinstein, B.A. LLB., is the Managing Partner at Neinstein Personal Injury Lawyers LLP. His practice focuses on serious injury and complex insurance claims, including motor vehicle accidents, slip and fall injuries, long-term disability claims and insurance claims. Greg has extensive mediation and trial experience and has a reputation among his colleagues as a skillful negotiator.
Greg Neinstein