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Pain. We all think we know what it means—but do we? You know what it means to you, but pain is subjective. Everyone feels it differently, and the manner in which it is experience reflects the particular physiological and psychological make-up of the individual, the trigger for the pain, along with other underlying factors that may not be easy to observe or uncover. You can feel your own pain, but not someone else’s.
Observe, for example, healthy women’s different responses to normal, uncomplicated childbirth, an experience shared by many. One woman claims to have felt no pain; another found childbirth to be rather painful, yet a positive experience; and a third claims that the pain of childbirth was the worst pain imaginable and something she would not want to repeat. Is one correct and another a liar? Who knows why these women felt the same experience so differently? In this example, the pain is fairly short-lived and in the vast majority of cases (but not all) disappears when the birth is complete. Not so, however, in many cases of on-the-job injuries.
Evaluating pain in relation to disability in a Workers’ Compensation case may be problematic, not only because pain is subjective, but because its cause may or may not be readily observed. Pain associated with a work-related injury or illness may become chronic. Chronic pain may be an ongoing symptom of a physical injury that has not, and may never be completely resolved, causing permanent disability. Or the original injury may have healed, leaving a legacy of debilitating pain that has no physical/biological explanation. And what might be debilitating pain for one person could, in theory, be reasonably tolerable in another.
When determining the extent of a worker’s permanent disability, it is important to understand the two types of chronic pain: that which has a physiologic explanation, and that which does not.
1.) Physiologic pain can be further divided into two types:
2.) Non-physiologically based chronic pain, or “somatic symptom disorder,” has no known bio-physiological explanation and persists long after the underlying injury has healed. And yet it is just as real and debilitating as physiological pain.
A claimant will need to document any pain in medical records throughout the treatment period. Workers’ Comp carriers often routinely deny claims for chronic pain, but if the pain clearly made its first appearance after the occurrence of the injury or illness that is the subject of the claim, it should be covered. Even if it was a pre-existing condition that was exacerbated by the injury, it should be included in the claim. Don’t accept a denial as final. Talk to your lawyer about disputing it.
Chronic pain should be included by a physician when determining the percentage of impairment a patient has suffered. A WPI (whole person impairment) rating is based on a rating system based on the AMA Guides, which then may be increased up to 3 percent for pain beyond that which is associated with the underlying injury on which the claimant’s impairment rating is based. Pain can only be used as a add-on to the existing impairment; the determination should be arrived at by adding together the percentage of impairment for the underlying injury with the percentage of impairment that can be attributed to pain (not to exceed 3 percent).
An attorney negotiating a permanent disability settlement involving a chronic pain condition will work to ensure that maximum consideration is given.