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.
Our lawyers see this particularly in car accident cases where there is a threshold and a deductible at play, which are NOT allowed to be explained to the jury during trial.
In the case of Mandel v. Fakhim 2016 ONSC 6538 the Honourable Justice Meyers made the following comments on a threshold motion following a Jury Trial.
The Plaintiff had been involved in collision in 2009. There was minimal property damage, but he complained of chronic pain. He was not able to return to work, or engage in his everyday activities following the car accident. Keep in mind that the Judge’s decision was released in 2016. This represents around a 7 year turnaround from the date of loss until the date of the trial.
The trial lasted 12 days (2.3 weeks of Court time). But here is my favourite comment from the Judge, which accurately describes the state of Jury Trials, chronic pain, depression and fibromyalgia cases in Ontario:
“The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict. The jury awarded the plaintiff just $3,000 for general damages and nothing at all for past or future income loss, medical care, and housekeeping costs….
There is no way to understand the jury’s verdict other than to conclude that either: (a) the jury did not believe the plaintiff’s testimony as to the extent of his injuries; or (b) they did not believe that the plaintiff proved that his injuries were caused by the trivial contact between the parties’ vehicles….
…jury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers, the fact is that the jury system is still the law of the land. “
Please keep in mind that this is a Judge, who hears these sort of cases all the time, commenting on essentially how broken the system is in Ontario when addressing car accident cases, along with chronic pain, fibromyalgia and depression cases.
If this doesn’t cause you some concern, then you had better read back those quotes again from the Honourable Justice Myers. The civil justice system should NOT work this way. It’s one thing to lose a case on its merits. It’s another thing when a Judge is hinting that it’s systematically broken. It’s also another thing when the Judge tells you that the usual experts gave their usual testimony. This should tell the general public about the huge industry which has developed for Courtroom testimony of experts who are predisposed to say certain things their clients want them to say; or to not say; depending on the case.
The end result was that the Plaintiff ended up with ZERO, after 7 years of hotly contested litigation. That same Plaintiff will likely also be responsible for paying the insurer’s legal costs should they be seeking them (which I imagine they will).
This is the very danger and risk when presenting a chronic pain, depression or fibromyalgia case. If the jury doesn’t buy your story, they the Plaintiff will lose. But, even when a jury accepts the Plaintiff’s evidence, the damage awards may not be what they seem; or what the general public thinks of.
There are caps for pain and suffering awards in Canada, which hover around $363,000 or so.
There are caps for long term disability claims as well. A Judge can only award you on an LTD claim what’s recoverable under the policy. The Judge can only order that the insurer make back payments, with interest (which is VERY LOW), and order that the insurer put you back on claim so that you get a monthly LTD benefit. After about a year or so, that very same LTD insurer can send you for an Insurance Medical Examination (IME) which may find that you no longer meet the definition of disability under the LTD policy. If that’s the case, then the insurer can terminate your LTD benefits once again, even though you’ve already gone through the trial process.
We also have to keep in mind that in the context of LTD cases, the insurer is only responsible to pay a monthly LTD benefit based on a percentage of your pre-disability salary. That LTD benefit is also subject to a wide array of deductibles such as CPP Disability, WSIB, ODSP, OW, or any other private disability pension available to the Plaintiff. Unfortunately, you cannot just make up figures that your LTD case is worth $10,000,000 because it’s a nice big round figure when the mathematics behind calculating those damages just don’t make sense. Aggravated and Punitive Damages also have special rules when determining when these damages apply; along with quantifying those damages.