Tips for personal injury solicitors conducting fibromyalgia claims
Fibromyalgia claims are not for the faint hearted. Solicitors working in this complex area, have to fight tooth and nail for every penny of compensation they obtain for their clients. This blog will explore some of the common features which make these claims challenging, with some tips on how as a claimant’s solicitor you can ensure your client obtains the compensation they deserve.
What is fibromyalgia?
Fibromyalgia is a condition characterised by painful muscles, tendons, ligaments, and other soft tissue areas. The pain is often severe and causes distinct areas of tenderness in specific locations called “tender points”. Fibromyalgia can be generalised, affecting the whole body, or regionally affecting specific areas of the body. Sufferers often experience secondary syndromes including fatigue, cognitive deficits, for example in memory and concentration (known as “fibro fog”) and disturbed sleep. Make no mistake; fibromyalgia can have a seriously debilitating affect on a client’s life.
Can fibromyalgia be caused by an accident?
It is now well recognised that fibromyalgia can be precipitated by physical trauma suffered in an accident, and this is known as post traumatic fibromyalgia. The most common cause of post traumatic fibromyalgia appears to be whiplash injuries. This is certainly my experience and confirmed in a study published in “The Arthritis and Rheumatism” journal in March 1997 which found that post-traumatic fibromyalgia is 13 times more likely to occur following a neck injury then following a leg injury.
Some challenging aspects of personal injury claims involving fibromyalgia
Fibromyalgia claims are often significant in value because of the debilitating and long term nature of the condition; unfortunately there isn’t a cure. Generally clients with fibromyalgia require considerable care and assistance which generates large care claims. In addition, it is common for clients with fibromyalgia to be unable to return to work. If they are able to work they may only be able to work part time or in a less demanding job. This can lead to a large a loss of earnings claim.
In fibromyalgia claims, a common scenario is a client who initially had a minor whiplash injury, who now has a high value personal injury claim. This creates suspicion among insurers who spend considerable resources attempting to undermine the client’s credibility.
They will seek to do this by:
- Carrying out a very detailed and through examination of your client’s disclosure and evidence in order to identify any inconsistencies; and/or
- Commissioning surveillance evidence to show a significant difference between the levels of disability as reported to the medical experts or in the witness evidence to that shown on the surveillance DVD.
You must therefore ensure that you obtain and carefully examine all of your client’s records yourself. This includes medical records, employment records, DWP records and therapy records for example. This will enable you to identify and deal with any inconsistencies before the issue is raised by the defendant.
In relation to surveillance evidence, see my blog – ‘Tips on what to do with surveillance evidence in personal injury claims’.
b) Expert evidence
Getting the right expert medical evidence in fibromyalgia cases is crucial. Most solicitors initially instruct a GP or orthopaedic expert because the client has been diagnosed with a whiplash injury by an A&E doctor or their GP. However in my experience, these experts do not understand fibromyalgia. They tend to give a short prognosis period and when the client does not recover, and in fact their symptoms get worse, the orthopaedic experts state that there is no organic cause for the ongoing symptoms. This obviously raises issues of causation and can leave the client feeling very confused and frustrated. I have taken over conduct of many claims at this point; because a client is unhappy with the medical evidence obtained, they feel they are not being believed and may be feeling pressured by their solicitor to accept a low offer of compensation in settlement of their claim.
The presence of tender points is the main criteria used to diagnose fibromyalgia. You therefore need an expert who is familiar with tender point testing and who understands the condition. This is usually a consultant rheumatologist or a pain expert. I have had the best reports from pain experts.
The defendants will typically instruct an orthopaedic expert who will conclude that there is nothing wrong with your client. They will suggest that your client is exaggerating or malingering. Alternatively, if they accept that your client is suffering from fibromyalgia, they will likely assert that the condition was not caused by the accident and would have occurred in any event. This is why they scrutinise the claimant’s medical records so carefully.
Whether you decide to instruct a pain expert or a consultant rheumatologist, you need an expert who is robust and will not be intimidated by the defendant’s expert’s arguments about exaggeration or malingering, or be put off by surveillance evidence which apparently shows that your client is free from pain.
These points also apply to counsel. In large fibromyalgia claims, it’s likely you will involve counsel at some point. You need to instruct a barrister with experience of these claims, otherwise you may find yourself on the receiving end of very cautious advice to accept or make an offer for less than the claim is worth. This could have implications for your client’s After the Event insurance if they have any.
Causation is undoubtedly the most important issue in fibromyalgia litigation. The claimant must show a causal link between the symptoms and the initial injury suffered in the accident. There has to be continuity of pain from the accident which is shown to have evolved from the whiplash injury. In order to establish this, you should provide your expert with a clear and concise instruction letter and a carefully drafted witness statement from your client detailing the progression of the condition from the initial injury. You must also instruct your expert to scrutinise your client’s medical records very carefully to ensure your expert can deal with the defendant’s expert’s argument that your client would have suffered fibromyalgia in any event.
d) Interim payments
The complexities of diagnosis and causation in these cases usually make it difficult to obtain interim payments. The defendant will often refuse to make a voluntary interim payment of damages because based on their medical evidence, the claim worth very little. The only way to deal with this is to make an application to the court; however your client needs to be aware of the risks of the application not being successful. Unfortunately it is generally the case that only modest interim payments are obtained in these claims.
Although this is one of the most difficult areas of personal injury litigation, it can also be very satisfying. With the right medical experts and a thorough, determined and confident approach, it is possible to obtain significant levels of compensation for clients with fibromyalgia.