Toronto Injury Lawyer Blog
Fibromyalgia is a serious disorder characterized by widespread pain, fatigue, depression, memory loss and other symptoms which vary from person to person.
Some doctors believe in fibromyalgia.
Some doctors don’t.
The same way that some doctors believe that fibromyalgia exists and is a very real and debilitating condition; and other doctors don’t; some insurance companies accept that fibromyalgia is very real and can have a significant impact on a person’s livelihood and ability to engage in day to day activities.
Some insurance companies don’t accept that fibromyalgia is real. They will want to create a narrative that fibromyalgia is a figment of your imagination. They will hope to establish that because you cannot see fibromyalgia on any sort of objective test like an x-ray, CT Scan or MRI Report that it’s simply not there. They will also try to create the narrative that you can fight through or work through whatever pain or ailment it is that you’re experiencing.
This is a false narrative. There are hundreds of thousands of people across Canada who suffer from fibromylagia, and there are countless doctors across the country who treat people for fibromyalgia. Don’t let your insurance company beat you down and crush your hope; because this is exactly what they’re trying to accomplish.
It’s important to note that Canada has a hockey or harsh winter culture. This is especially prevalent outside of the Greater Toronto Area in more rural communities. The mindset to suck it up and tough out your pain is popular. Just skate it off and everything will be ok. This message resonates strongly with a jury. Insurance companies hope to use this narrative in order to combat and defeat your claim.
Sometimes the law for personal injury claims is not always about the truth. There are objective truths in personal injury cases which are undeniable. The accident happened on a certain date, at a certain time, as documented by the police. This is an objective truth in a personal injury case. The Plaintiff is “x” years old. The Plaintiff was driving a red Dodge Caravan with Ontario License Plate #XXXXXX. These are objective truths which won’t be critiqued at trial.
The problem with fibromyalgia cases is that they boil down to subjective pain, along with other subjective symptoms which aren’t experienced by any other party.
While the fibromyalgia may exist, the reality is that their symptoms are subjective. The subjective truth about whether or not a Plaintiff has fibromyalgia, and how that fibromyalgia plays out can, and will be challenged by a large insurance company; because it can be ! It’s subjective. An insurer will take any opportunity they can to create their own narrative in order to minimize their exposure to your claim.
So how does a Plaintiff combat the subjective nature of fibromyalgia in a legal proceeding?
For starters, put yourself in a position to win. Don’t post on social media. Social media posts have a tendency of destroying a Plaintiff’s case. It’s an opportunity for the Defendant insurer to dig in the dirt and make you look bad. Courts have tended to side with producing social media content to insurers instead of protecting your privacy. Once you start a fibromyalgia claim, consider your whole life to be fair game in a Court.
Putting yourself in a position to win also means regularly seeing your doctor, specialists and attending at appointments. Missing appointments or not following your doctors’ orders makes you look bad. It gives the impression that you aren’t taking your fibromyalgia seriously; or you’re not trying to get better. A Plaintiff has an affirmative duty to mitigate his/her damages. This means they cannot just sit back and wait to get paid out on their fibromyalgia claim. It means that they must take every measure to get better. By doing so, you are not only mitigating your damages; but you are also showing the insurer that you are doing everything you can to get better. If nothing works, or nothing helps, it only makes your case that much stronger and the fibromyalgia claim that much more credible because nothing is working. There is nothing better for a case than a failed return to work program or treatment program which failed not due to lack of effort. Rather, it failed on account that the treatment simply didn’t work because the fibromyalgia and associating symptoms were so debilitating that the course of treatment couldn’t work.
Seeing your doctor sometimes isn’t enough. You have to follow through on your doctor’s orders. If your doctor has recommended home exercise, then do the home exercises. If your doctor has recommended that you attend at physio, massage, or get counselling; then it’s up to you to follow through.
Your doctor has likely prescribed you with a cocktail of medication. It may work. It may not. Your doctor may try different blends of medications and dosages to figure out what works best for you. Refusing to take your medication may send a message to the insurer that you’re not serious about getting well. We realize that medication is not for everyone. But, you gotta give it a try. If it works; then that’s amazing. If it doesn’t work, then you can let the insurer, judge and jury know that at least you tried and it didn’t work. It sends a message that despite the fact that you don’t like taking medication, you were so serious about getting well that you gave it a shot. In spite of your efforts, the medication didn’t work and you are still feeling the effects of the fibromyalgia.
Insurance companies take each fibromyalgia case they see with a grain of salt. As a Plaintiff, it’s important to be extra vigilant with respect to mitigation in these cases. Insurers will be quick to pounce showing examples of times where a Plaintiff did not follow a recommended course of treatment for their fiboromyalgia. The insurer and their lawyers will point to these instances in order to create a narrative to defeat your claim.
