Articles Posted in Chronic Pain

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Personal injury law should be simple.

Plaintiff sustains an injury in an accident (the damages component).

Defendant’s negligence caused the accident (the liability component)

Plaintiff’s injuries directly caused as a result of the Defendant’s negligence (the causation component).

Any personal injury case without all three of these components will fail. When you put it out in such easy to understand terms, it would seem that personal injury litigation is very straight forward.

But it’s not.

Insurer’s will challenge the Plaintiff’s position every way until Sunday. That’s their job. Insurance companies don’t gratuitously throw money at claims which they don’t believe have merit. And even claims which they believe have merit are viewed through a difference valuation lens than then injured accident victim and his/her personal injury lawyer. Translation: The injured Plaintiff will think that their case is worth a lot. The Defendant insurer will think the opposite. Getting parties to agree to a valuation of damages can be a tricky exercise.

Aside from the normal defense tactics of surveillance (both in person and online), defence medical examination, digging in to one’s pre-accident history and testing their credibility at each step; there are other barriers to a Plaintiff’s recovery which can be even more difficult to overcome than a tactful defence lawyer.

It’s those hidden barriers to recovery which we wish to examine in this week’s edition of the Toronto Injury Lawyer Blog Post.

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Recently in the news, a Windsor Ontario doctor was disciplined for over prescribing opioid medication. His license to practice medicine was revoked. This was the first disciplinary case of its kind involving the over prescribing of opioid medication where the doctor lost his license to practice medicine.

Also recently, the government of British Columbia launched the first law suit of its kind against opioid manufacturers and distributors alleging that the drugs created more negatives and burdens for the health care industry than benefits.

The trend is that opioid medication is bad. Personal Injury lawyers see this trend on the front lines with respect to how their clients react to opioid medication. Times are certainly changing and medication trends are heading in a different direction. They are trending towards cannabis.

It used to be that smoking cannabis for chronic pain was taboo. Pot smokers were frowned upon by the Courts, insurers and jurors thinking that the smoker was masking their smoking habit just to get high. The disingenuous comment “I need to smoke pot for my pain” was very common and was sneered upon.

With the recent crack downs on opioid medication, and a better understanding of the potential harms which opioid medication can cause; more people (and doctors) are seeking out alternative remedies. Enter medical cannabis.

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Everyone here at Goldfinger Injury Lawyers hopes that you had a safe holiday season, along with a Happy New Year. We also hope you’re doing your best to keep warm, as most parts of Ontario have experienced a deep winter freeze over the past month or so.

We kick off the first post of 2018 in the Toronto Injury Lawyer Blog with an examination of medical marijuana for your personal injury or long term disability case.

We here at Goldfinger Injury Lawyers are going out on a limb and declaring 2018 the year of pot/marijuana. As we get closer to July 1, 2018, we will hear more and more about the legalization of recreational marijuana. It may, or may not be legalized by that time. Justin Trudeau has given mixed signals on when recreational marijuana will be legalized; and the provinces are still working out how it will be dispensed. Ontario is leaning towards an LCBO style model. What model will work best has yet to be seen.

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Many of our clients suffer from fibromyalgia, depression and chronic pain. These injuries arise and present themselves in a wide variety of ways. Each case is fact specific. We never know how these injuries will present themselves or manifest.

Our lawyers see fibromyaligia, depression and chronic pain in the context of car accidents, long term disability (LTD) claims, motorcycle accidents, slip and fall cases and assault claims.

Even though the starting of these points of these claims may be different, the end result is similar. An inability to work, function, or engage in your normal routine of daily living.

The struggle of having to explain to family, friends and loved ones the nature of your injury and how it impacts you life, when the injury is invisible is taxing. It would almost be easier if you had a broken leg. That way, everyone would see what’s wrong with you. Having to describe the pain and depression is difficult and hard for others to understand or sympathize with.

Insurers know this. That’s why in chronic pain, depression and fibromyalgia cases we see lawyers for insurance companies file Jury Notices right away. They know that they can play upon the subjective nature of chronic pain, fibromyalgia and depression in order to defeat your claim. Their goal is to have the jury disbelieve your version of the events along with your pain, such that your case will get dismissed.

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Over the past few months, we have seen a war play out in the media between Ontario doctors and the Ontario government. Doctors and the province have been operating without a proper contract in place for quite some time. Neither side can agree to terms. Ontario unilaterally cut doctor fees, along with certain billing codes. The result is that it has presented a cut to Ontario’s thousands of doctors. Doctors are fighting this in Court by way of Charter challenge. It’s pretty interesting to see the public relations battle play out in the media. Not to mention that Ontario doctors are actually launching a Charter challenge, which gets any lawyer excited.

Some doctors are chosing to scale back their hours (why work more for less), close clinics, or move out of unprofitable centres. This was discussed in yesterday’s Globe and Mail which examined how some doctors were closing clinics (methadone and radiology) on account of the cuts to the OHIP system and billings.

The purpose of this edition of the Toronto Injury Lawyer Blog is to examine the crucial role which family doctors play in the context of a personal injury or long term disability case. At the end of the day, the family doctor can be the MOST IMPORTANT person on an injured accident victim or disability claimant’s team.

The great thing about Canada, is seeing a medical doctor is FREE. This is in stark contrast to the United States, whereby, for the most part, every time you visit you doctor, you have to pay for the visit (not withstanding Obama Care).

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The term Fibromyalgia is becoming dated, although doctors, insurance companies and disability claimants still use it.

The preferred term according to the Arthritis Society of Canada is “Chronic Widespread Pain“.

Many of our clients deal with Fibromylagia/Chronic Widespread Pain. We often see it associated with many other symptoms including but not limited to depression, anxiety, fatigue, impaired memory, impaired concentration, shortness of breath, and irregular sleep patterns/habits.

Some doctors believe in Fibromyalgia. Other simply don’t.

Firbromyalgia and Chronic Widepread Pain have been recognized and National Guidelines have been endorsed by the Canadian Pain Society and the Canadian Rheumatology Association.

But for many large, deep pocketed insurance companies, those endorsements aren’t enough to prove an injury or a disability under a Long Term Disability Policy with an insurer like Manulife, Great West Life, SunLife, Desjardins, SSQ, RBC Insurance or Industrial Alliance just to name a few of the big ones.
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If you keep up with the news, you will know there’s a shortage of family doctors. This shortage is more pronounced in rural or remote communities. Perhaps the notion of a shortage of family doctors isn’t accurate, but I’ll let the people at the Ministry of Health and the OMA debate that.

I’m sure we can all agree that people are having a tough time finding family doctors as many people in Ontario are WITHOUT family doctors. Many doctors aren’t accepting new patients.

Family doctors are very important. They represent the front line with respect to medical care and attention when you’re sick, injured or hurt.

In my travels across Ontario, I’m never shocked when people tell me that they don’t have a family doctor or that they haven’t seen a doctor in many years.

Lots of people don’t like going to see the doctor. The doctor’s office may conjure up bad memories, feelings of worry, or helplessness; so going to the doctor’s office isn’t a priority. Or, they can’t find the time in their busy work schedule to see a doctor. Or, perhaps they’ve had no reason for a very long time to get a family doctor when they have no pressing health problems. Or, their community just doesn’t have a family doctor nearby who’s taking on new patients. The closest family doctor might be a few hours drive away and making that drive just isn’t practical.

Our lawyers understand this. But, when an accident happens, the family doctor may be the most important medical professional for your case. Particularly in a chronic pain case.
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A recent CBC News story cited that chronic pain impacts one in five Canadians. That’s a helluva a lot of Canadians who have to deal with chronic pain. In case you’re wondering, “helluva” is NOT a legal term.

Are you suffering from chronic pain? Do you know what it’s like to live day after day with a pain that won’t subside. Do you know what it’s like to deal with pain that’s so bad you can’t focus, can’t concentrate, and causes you energy to deplete such that all you feel like doing is staying in bed all day long?

I wouldn’t wish this type of pain on my worst enemy. Dealing with chronic pain, and treating it are hard enough.

Having to explain your symptoms, along with your daily routine and why you can’t function for an already skeptical insurance adjuster and insurance lawyer are even more difficult.

Making matters even worse is that treating chronic pain isn’t always as simple as taking a pill and hoping that the pain goes away. The wait time to see a chronic pain doctor (commonly referred to as physiatrists, or rheumatologists or some family doctors with special training in chronic pain also qualify) can be over a year.

If you live in a rural community, then finding such a doctor might require travel to a more urban centre. I’ve seen clients from North Eastern Ontario and the Kawarthas travel to Peterborough or to Toronto for treatment. Sometimes they have to travel to Oshawa depending on the availability of doctors.
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How does an insurer, judge or jury assess one’s pain level? If their pain is not showing up on any x-ray, scan, or test result, then how does a Court truly know that the claimant is in pain; and in fact telling the truth?

What’s stopping somebody from simply making a claim that they’re disabled, and lying to their doctor and to the Court alike?

How do we know that somebody is telling the truth about their subjective pain, fatigue or other cognitive difficulties (loss of memory, sadness, fatigue, loss of concentration etc.)?

These are all very good questions. Believe it or not, our the way that personal injury claims and long term disability claims work in Ontario make it pretty clear who’s faking, and who’s not.

First, we have to draw a distinction between an objective injury vs a subjective injury. An objective injury is one that will show up on an xray, scan or test. A factured ankle. A broken femur. A cranial facture. A hematoma on the brain. All of these are injuries which will show up on a test, which any doctor, or non-medical person can likely see. It’s pretty hard for an insurer to refute an ankle fracture injury when the x-ray clearly shows that the ankle is fractured.
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