Handling the Invisible Injury
By Michael M. Bowden
In Washington State, a worker insists he's in constant pain following a lifting mishap on the job, but doctors can find nothing physically wrong with him. Nonetheless, the worker claims total disability, saying the accident caused fibromyalgia – a condition many doctors say doesn't even exist.
He sues and wins $2.3 million.
In North Carolina, a woman develops a vague ache in her arms and shoulders while working on an assembly line. There's no physical explanation for the pain, but the woman says it's disabling and applies for workers' comp, claiming "thoracic outlet syndrome" and "reflex sympathetic dystrophy" – two more conditions viewed skeptically by the medical establishment.
After an initial denial, she wins her claim on appeal.
Over the past few years, a new wave of "invisible injuries" – controversial conditions that appear to be disabling, but are usually not supported by objective medical evidence – has been steadily gaining strength. All of these conditions are alleged to cause physical rather than emotional injuries, which distinguishes them from purely emotional problems such as post-traumatic stress disorder.
Although such cases were once considered an easy defense win, that appears to be changing.
"As the body of literature documenting these conditions grows, we'll be seeing more and more successful cases," says Steve Krafchick, a Seattle attorney in a two-lawyer firm that specializes in invisible injury litigation and is currently handling more than 40 fibromyalgia cases. "They're still not totally accepted, but the medical and legal communities are coming around."
Even the defense bar agrees that a change is in the air.
"Some of these verdicts have recently begun to turn – [even] in cases we once would have laughed at," says Joseph Fasi II, a Milwaukee defense attorney and chair of the Defense Research Institute's medical liability committee. "That's because 10 years ago the cases faced total skepticism from the medical community. In the past two or three years, however, more articles and studies are validating the existence of some of these ailments."
Among the most common invisible injuries are:
Closed-Head Brain Trauma.
Involves head traumas which don't show up in x-rays, CT scans or MRIs. These cases have been around for nearly two decades, and provide the prototypical case strategy for invisible injury cases.
Fibromyalgia.
Characterized by general musculoskeletal pain, with headaches and general fatigue among the possible accompanying symptoms. This condition is at the forefront of the new invisible-injury wave. It was formally recognized by the American College of Rheumatology in 1990.
Chronic Fatigue Syndrome (CFS).
Unexplained fatigue, low-grade fever, muscle pains, headaches, and problems with memory and concentration. Last year, the Social Security Administration recognized the condition as a legitimate medical disorder that can be the basis of a finding of disability. (SSR 99-2p.)
Temporomandibular Joint Dysfunction (TMJ) injury.
A disabling chronic pain centered in the face, neck and jaw, sometimes with additional bodily symptoms.
Thoracic Outlet Syndrome: A nerve disorder apparently caused by compression of the arteries, veins or nerves in the base of the neck, with symptoms that include pain in the arms, hands and fingers. The North Carolina worker's comp case is among the first to recognize this condition. Greene v. Dana Corporation. Appealed from Opinion & Award of Jones, Deputy Commissioner. I.C. No. 547882.
Reflex Sympathetic Dystrophy (RSD).
Another controversial nerve disorder, similar in symptoms to thoracic outlet syndrome, but considered to be technically distinct. The plaintiff in Greene v. Dana Corporation also recovered for this disorder.
Although the names and symptoms may change, the fundamental legal approach remains the same for all of these invisible injury cases.
Assessing Credibility
Complaints about any of these conditions crop up in several contexts. Trauma-induced invisible injuries often appear in PI cases, where the plaintiff claims the defendant's actions caused the accident and the accident caused the disabling symptoms. They can also come up in an employment context, where the plaintiff claims that his duties on the job are the cause of his debilitating symptoms.
In such scenarios, plaintiffs' lawyers must prove (a) that the invisible condition medically exists in the first place; (b) that this particular plaintiff is suffering from it; and (c) that the defendant is somehow liable for that condition. Defense lawyers must try to disprove at least one of these elements.
In Social Security and disability insurance cases, the last of these elements is removed. The injury claimed may be trauma-induced or spontaneously occurring, but the plaintiff claims to be partially or totally unable to work, and is attempting to collect disability payments.
In any of these cases, there are five elements that plaintiffs' lawyers need to assess before accepting the case:
The extent of the loss suffered by the client.
The credibility of the client.
The nature of the client's medical records, and the literature available on the claimed condition.
Whether they have the time and resources needed to handle an invisible injury case.
Whether they have the temperament necessary to handle an invisible injury case.
The first step in assessing these cases is to determine what the plaintiff has lost. The ideal plaintiff will be an active, productive person who has – against their will – become inactive and unable to remain productive.
"I look for people who were highly functional in their lives and have become dysfunctional," Krafchick says.
But plaintiffs' and defense lawyers alike agree that the invisible injury case is ultimately won or lost on the issue of credibility.
So plaintiffs' lawyers should ask themselves questions such as: Is the potential plaintiff believable? Are the experts authoritative and persuasive? Do the doctors really believe in the ailment? Do they have studies and expertise to back up their opinions? Do they express themselves with clarity, persuasiveness and conviction? What about the lay witnesses – usually friends, family members and co-workers who can speak to the ways in which the plaintiff changed in the wake of the alleged injury? Are their stories compelling and convincing?
"If I can get the plaintiff in an area where their credibility is damaged – whether they have directly lied about something or where you catch them in a misstatement or inconsistency – then that would truly hurt a fibromyalgia-type case," says defense lawyer Fasi.
The same goes for expert and lay witnesses. In invisible injury cases, it's all about trust: Can the judge or jury comfortably believe that this plaintiff has an injury, to the extent that they will award compensation despite a lack of hard medical evidence?
Plaintiffs' lawyers should look at their own personalities and practices as well. They should consider:
Do they have the time?
Invisible injury cases are more time-consuming than conventional PI and disability cases. They require a lot of legwork, interviewing lots of potential witnesses, spending time getting to know plaintiffs and their families, and tracking down experts who specialize in a little-known injury.
"It's a lot more time-intensive than traditional injury cases," says Howard Spiva, a small-firm lawyer in Savannah, Ga., who handles a large number of closed-head injury cases. To keep up with all of the interviews and other preparatory work, he keeps a number of trained non-lawyer assistants on staff, including paralegals, a nurse and a former insurance adjuster.
The trial itself will also take time.
"To do these cases properly, it takes five to 10 days just to try the plaintiff's side of the case," Krafchick says. "You need to have doctors in different specialties, and you usually have lots of medical records."
Do they have the money?
Because these cases require such extensive preparation, lawyers can run up a lot of out-of-pocket expenses up front.
"One recent fibromyalgia case I did here in Washington State cost around $50,000, another was in the neighborhood of $75,000," says Krafchick. "For a recent out-of-state case, we were looking at spending more than $100,000."
Part of Krafchick's strategy is to overwhelm the opposing side by matching every defense expert with multiple plaintiffs' experts, rather than simply matching them one-on-one. It can get expensive, and if you're not willing or able to fork out that kind of money, this may not be the legal area for you.
"The attorneys I've talked to who've tried these cases and not taken this [expense-heavy] approach have not been very successful," Krafchick says.
Do they have the right personality?
Experts say plaintiffs' lawyers should stay away from these cases unless they're able to work up the passion and conviction needed to convince a skeptical judge or jury that a client is truly entitled to compensation.
"You need to believe in your client and believe in the issues," says Krafchick. "If you don't, the jury's going to sense it. I have a total conviction that this is real, or I wouldn't be trying these sorts of cases."
It's also helpful to bring a compassionate, empathetic personality to the table.
"You've got to be passionate about these things, and care deeply about your client," Spiva says.
And it's not enough to just pay lip service to those ideals. Plaintiffs' lawyers have to roll up their sleeves and delve into the client's world, visiting their home, talking to their family, friends and co-workers, and building up an ironclad conviction in the case.
"You really have to learn the person before you can know how to translate to a jury what the injury has changed," Spiva says.
If that sort of hands-on lawyering doesn't appeal to an attorney, invisible injury cases probably aren't for them.
Prepping a Case
In preparing for settlement or trial, a plaintiff's first task is – or used to be – proving that the client's claimed ailment even exists. But nowadays, when the College of Rheumatology has issued diagnosis guidelines for fibromyalgia, and the CDC and Social Security Administration have recognized chronic fatigue syndrome, that is becoming less and less of a problem.
"The question, 'Is this a real condition or is it baloney?' really only comes from insurance companies now," says Krafchick. "You don't see that from the medical community quite as much."
So a plaintiffs' lawyer can focus most of his or her effort on establishing that the client has the disease, and – in the case of PI and employer-employee cases – that the defendant is liable. This starts with the medical literature – any studies of the new ailment that may be available – and the plaintiff's medical records, the only real physical evidence upon which the case can be built.
The literature will answer the question, "Is this diagnosis a legitimate diagnosis? Can the medical and legal community have some level of comfort that the diagnosis is what it claims to be?" says Davis.
The starting point with fibromyalgia, for example, is the 1990 criteria set by the College of Rheumatology – documenting tender points and offering the appropriate blood work (to rule out other rheumatic disorders such as osteoarthritis, rheumatoid arthritis, lupus, etc.).
"That gives the diagnosis a lot more validity and credibility, so that the other side can't attack the diagnosis itself," says Davis.
He adds, "A lot of people have pain, but they're not necessarily unable to work because of this pain. So these claims are won or lost on medical records: How well documented are the client's symptoms and limitations, their severity and frequency? Is there a specialist or rheumatologist involved? What level of pain medications are they taking? Judges always look at these things."
If a claimant complains of constant, disabling pain, but their medical records show that they're not taking any prescription pain medication, their credibility is severely eroded. If they ask for medication but their doctor refuses to prescribe it, this shows that even the patient's own doctor has little faith in their claim.
"Their case usually isn't going anywhere if their own doctor doesn't support the claim," notes Davis.
The possible exception to this rule occurs with primary physicians who are non-specialists, and may not have been aware that a claimed condition even existed. In those cases, a fresh review of the medical records may shed light on symptoms that fall into place in the context of an invisible injury.
Spiva offers the following model for questioning for plaintiffs' lawyers to ask these doctors:
Q: Doctor, during the first visit, three days after the accident, I see you've noted that my client had muscle spasms?
A: Yes.
Q: Did you actually put your hand on the muscle spasm and feel it?
A: Yes.
Q: So you know for a fact that it was there?
A: Yes.
Q: Is that something that the patient can fake?
A: No, it's absolutely involuntary.
Q: So doctor, the fact that their body was spasming – is that an objective sign that tells you there was an injury?
A: Yes.
Q: So this isn't something subjective, where you're just believing the patient?
A: No, that's an objective sign of an injury.
So invisible injury cases can still be viable even when the plaintiff's lawyer has less hard evidence than he or she would usually require in a medical case.
"The fact that MRIs or CT scans are negative is not inconsistent with the existence of, say, a head injury," notes Kenneth Kolpan, a Boston plaintiffs' lawyer and expert on invisible injuries.
"You have to look for other signs and symptoms as well – such as alterations of the plaintiff's mental state, nausea and vomiting, or post-traumatic amnesia of events immediately before or immediately after the accident," he says.
Spiva agrees.
"Whenever you have a soft-tissue injury that you can't see on an x-ray, it's going to be more difficult to convince a jury," he says.
Making the Connection
In PI cases, the trickiest task can be drawing the causal connection between the injury and the defendant's alleged action – especially if there is a gap in time between the alleged cause and the diagnosis.
For example, the work injury in the $2.3 million Washington State case wasn't diagnosed as fibromyalgia until two years after the plaintiff's accident.
In such cases, the typical defense is to argue that just because the symptoms began sometime after an event occurred doesn't mean this event is the cause. The defense will argue the claim is too vague – especially when the claimed injury is invisible, and the symptoms can occur so long after the alleged triggering event.
The bottom line? It all comes back to trust.
If the plaintiff comes across as honest and hard-working – not the sort of person who's looking for a free ride – and if the medical records show his or her complaints beginning after the triggering event, then a jury may find that the event is the cause even if the medical evidence isn't clear.
Choosing Experts
With a few exceptions, choosing experts in an invisible injury case is the same as in any injury case – you'll want someone who is authoritative, has published on the subject and is articulate and down-to-earth on the stand.
"You'll need an expert with enough knowledge and experience to begin educating the jury. That means being familiar with the medical literature, how these patients react to a treatment, how you diagnose them, and how you can sort out those who are faking from those who really have the condition," Krafchick says.
Because the medical community is divided on the existence of these ailments, plaintiffs' lawyers will want to dedicate a larger proportion of the expert's time establishing the existence and causes of the ailment.
Krafchick recommends that plaintiffs' attorneys try to out-expert the defense, to give the subjective opinion supporting your case at least a quantitative advantage. He suggests at least two experts for every one the defense offers.
"If you don't do this, then too much will rest on the credibility of any one witness," he says. "And oftentimes the doctors who say these conditions are baloney are very good blusterers."
Experts can help plaintiffs forge the causal link between the injury and the defendant's action. For instance, if your client suffered a neck injury in a car wreck, your expert might expound upon a recent study in Israel that found that people who suffered whiplash had 13 times more incidence of fibromyalgia than those who suffered leg injuries. The suggestion is that there is some correlation, although it has not yet been fully explained.
As with many studies, of course, the facts contained in the invisible injury literature can be distorted to serve almost any purpose.
"Sometimes doctors pick and choose from the literature," says Krafchick. "Also, they sometimes cite articles that are editorials and opinions rather than actual studies."
Gathering Lay Witnesses
A major component of a plaintiff's case will be lay witnesses – people who are a part of the plaintiff's life and can communicate a sense of the plaintiff's loss.
"Get as many lay witnesses as you can find," recommends Krafchick, who uses about a dozen in any given case. Due to the logistical challenges of a long trial, he says these witnesses are handy to call whenever you find yourself with a brief gap if an expert finishes testifying early, or gets delayed getting to court when they're scheduled to testify.
"We look for people who can paint a good picture in a short period of time," he says. "Don't waste your time with those who make vague statements like, 'They didn't hurt and now they hurt,' or 'They did work and now they can't work.'"
Because credibility is so important, "We want somebody who has done something with them – 'I used to go shopping with this person and we would walk from morning until night' or 'We used to close the bars down three times a week.' Or 'This person had so much energy, she'd be the last one on the dance floor' or 'Once, we went climbing Mount McKinley.' Something like that – which happened within, say, the summer before a collision happened – to demonstrate the plaintiff's prior physical ability."
Usually, a plaintiff won't be able to reel off such incidences during a meeting with a lawyer. If the activity occurs to them at all, they may dismiss it as insignificant. So plaintiffs' lawyers should root out the experiences that will be most useful in proving the case – roughhousing with the kids, playing racquetball with a colleague, using the stairs instead of the elevator at work. They should talk to the clients' family members, neighbors, people from their church and employers or employees.
"I get in there and learn the client's life," says Spiva. "I go to their house and spend time them and their families, look at their walls – what kind of awards are hanging there? I look in their family albums – what activities are in there?
"For instance, one of my clients had to give up his morning basketball game with his son. And your first reaction might be, 'So what?' But when you learn what that time really meant to him and his son, you can see that it makes a significant difference in their lives."
In another example, he tells of an older, unemployed woman who lived in the projects, and suffered a closed-head injury in a car crash. The defense portrayed her as fat and lazy – an unproductive person who had lost little by her injury.
Spiva's investigation, however, revealed that she was president of the project association, and a beloved figure to neighborhood children, for whom she often baked giant batches of cookies.
"That's how she got her feelings of importance, and that's how she communicated with people," he says. "So when she got in this car wreck and could no longer bake cookies; well, how do you replace that in somebody's life? These were the only things she did that gave her joy."
The Objectivity Gap
Because the defense's strongest argument is the plaintiff's lack of objective evidence for their injury, plaintiffs' lawyers recommend supplementing medical documents, expert testimony and doctors' testimony with a few additional items. These documents are intended to give the judge or jury some objective evidence upon which to hang their decision.
An affidavit from a co-worker or supervisor.
These can be hard to get due to the adversarial nature of these cases, in which the employer may be a defendant or fear an eventual ADA claim. But if a plaintiff can manage to procure one, it's a strong advantage, Davis says.
"I have found that it's very effective to get an affidavit from a co-worker or, preferably, a supervisor," he explains. "It should say something like, 'I worked with this person. Here's the before picture, here's the after. Here are the symptoms and problems that I observed. Here's what happened to their work quality. And in my opinion, this person is unable to do the job they used to do' – or, depending on the case, any job."
A functional-capacity evaluation.
Plaintiffs' attorneys recommend having a physical therapist conduct a functional-capacity evaluation. This is a half-day battery of tests that provides an objective set of answers to the question of exactly what work a person is physically capable of performing.
"It gives you a more objective idea of how a person is limited by their pain, their fatigue, and their other physical problems," says Davis.
A vocational expert report.
The functional-capacity evaluation can be paired with a vocational expert's report. The vocational expert uses objective statistical data to offer an opinion as to what kind of work, if any, a person is qualified to do based upon their age, education, work experience and physical limitations.
A neuro-psychologist report.
Defendants frequently argue that the injury is all in the plaintiff's head. In Social Security cases, the psychological distinction isn't a bar to recovery. But in PI or insurance disability cases, it most definitely can be. So if you want to shore up a case where the psychological element is particularly marked, Davis recommends getting the client a psychological evaluation.
"That either rules it in or out as a causative factor," Davis says.
However, even if there is a psychological factor, psychologists may find that an emotional symptom – say, depression – is simply a natural reaction to the physical disorder.
"They'll find that if the fibromyalgia or chronic pain or chronic fatigue weren't there, then the depression wouldn't be there," Davis explains. "Statistically, there's a heavy psychological component that's oftentimes associated with fibromyalgia. Generally, that component is secondary to the fibromyalgia, but a lot of the cynics – whether they be doctors or judges – tend to raise an eyebrow, and dismiss the whole thing as a psychological disorder."
Some defense lawyers question neuro-psychology altogether.
"Neuropsychology doesn't rely on hard diagnostic studies," says Denver defense attorney Matthew Biscan, whose practice includes a lot of medical liability work. "It's an area that's certainly in dispute in the legal community and, to a lesser degree, in the medical community. So you need to attack the science in cases like this. It's also very, very important to comprehensively investigate the plaintiff's intellectual functioning before the accident, and to question the credibility of any witnesses relating a change in his or her personality."
Closing Arguments Are Key
In closing arguments Spiva has had good luck describing invisible injuries by metaphor.
"I'll tell the jury, 'You can't see this injury on an x-ray, but you've seen all the results of the injury. In the same way, when you look outside, you can't see the wind, but you can see the trees bending so you know it's there,'" he says. "Or I'll say, 'Before the Hubble telescope, you couldn't see a lot of the galaxies that are out there, but they were still there. And this injury is there too, it's just that our medical technology hasn't yet advanced far enough for us to be able to see it.'"
Ultimately, it all comes back to credibility – which can not only win or lose a case at trial, but can also affect settlement before trial.
"If I look at one of these cases, and find that the plaintiff is not to be believed – because their medical records show great inconsistencies or, worse yet, because we have them on video surveillance doing the things they say they can't do – then that case is gutted," says defense lawyer Fasi.
But if he senses a legitimate complaint, however invisible it may be, he's always willing to negotiate.
"In some cases, I can't find an inconsistency," Fasi says. "And my expert tells me, 'You know, this person doesn't seem like the typical calculating plaintiff who's out to make a buck; I think this person is really injured. That's when I'll say to myself, 'All right, then maybe there's something here,' and I'll take the case with more than a grain of salt."
In Washington State, a worker insists he's in constant pain following a lifting mishap on the job, but doctors can find nothing physically wrong with him. Nonetheless, the worker claims total disability, saying the accident caused fibromyalgia – a condition many doctors say doesn't even exist.
He sues and wins $2.3 million.
In North Carolina, a woman develops a vague ache in her arms and shoulders while working on an assembly line. There's no physical explanation for the pain, but the woman says it's disabling and applies for workers' comp, claiming "thoracic outlet syndrome" and "reflex sympathetic dystrophy" – two more conditions viewed skeptically by the medical establishment.
After an initial denial, she wins her claim on appeal.
Over the past few years, a new wave of "invisible injuries" – controversial conditions that appear to be disabling, but are usually not supported by objective medical evidence – has been steadily gaining strength. All of these conditions are alleged to cause physical rather than emotional injuries, which distinguishes them from purely emotional problems such as post-traumatic stress disorder.
Although such cases were once considered an easy defense win, that appears to be changing.
"As the body of literature documenting these conditions grows, we'll be seeing more and more successful cases," says Steve Krafchick, a Seattle attorney in a two-lawyer firm that specializes in invisible injury litigation and is currently handling more than 40 fibromyalgia cases. "They're still not totally accepted, but the medical and legal communities are coming around."
Even the defense bar agrees that a change is in the air.
"Some of these verdicts have recently begun to turn – [even] in cases we once would have laughed at," says Joseph Fasi II, a Milwaukee defense attorney and chair of the Defense Research Institute's medical liability committee. "That's because 10 years ago the cases faced total skepticism from the medical community. In the past two or three years, however, more articles and studies are validating the existence of some of these ailments."
Among the most common invisible injuries are:
Closed-Head Brain Trauma.
Involves head traumas which don't show up in x-rays, CT scans or MRIs. These cases have been around for nearly two decades, and provide the prototypical case strategy for invisible injury cases.
Fibromyalgia.
Characterized by general musculoskeletal pain, with headaches and general fatigue among the possible accompanying symptoms. This condition is at the forefront of the new invisible-injury wave. It was formally recognized by the American College of Rheumatology in 1990.
Chronic Fatigue Syndrome (CFS).
Unexplained fatigue, low-grade fever, muscle pains, headaches, and problems with memory and concentration. Last year, the Social Security Administration recognized the condition as a legitimate medical disorder that can be the basis of a finding of disability. (SSR 99-2p.)
Temporomandibular Joint Dysfunction (TMJ) injury.
A disabling chronic pain centered in the face, neck and jaw, sometimes with additional bodily symptoms.
Thoracic Outlet Syndrome: A nerve disorder apparently caused by compression of the arteries, veins or nerves in the base of the neck, with symptoms that include pain in the arms, hands and fingers. The North Carolina worker's comp case is among the first to recognize this condition. Greene v. Dana Corporation. Appealed from Opinion & Award of Jones, Deputy Commissioner. I.C. No. 547882.
Reflex Sympathetic Dystrophy (RSD).
Another controversial nerve disorder, similar in symptoms to thoracic outlet syndrome, but considered to be technically distinct. The plaintiff in Greene v. Dana Corporation also recovered for this disorder.
Although the names and symptoms may change, the fundamental legal approach remains the same for all of these invisible injury cases.
Assessing Credibility
Complaints about any of these conditions crop up in several contexts. Trauma-induced invisible injuries often appear in PI cases, where the plaintiff claims the defendant's actions caused the accident and the accident caused the disabling symptoms. They can also come up in an employment context, where the plaintiff claims that his duties on the job are the cause of his debilitating symptoms.
In such scenarios, plaintiffs' lawyers must prove (a) that the invisible condition medically exists in the first place; (b) that this particular plaintiff is suffering from it; and (c) that the defendant is somehow liable for that condition. Defense lawyers must try to disprove at least one of these elements.
In Social Security and disability insurance cases, the last of these elements is removed. The injury claimed may be trauma-induced or spontaneously occurring, but the plaintiff claims to be partially or totally unable to work, and is attempting to collect disability payments.
In any of these cases, there are five elements that plaintiffs' lawyers need to assess before accepting the case:
The extent of the loss suffered by the client.
The credibility of the client.
The nature of the client's medical records, and the literature available on the claimed condition.
Whether they have the time and resources needed to handle an invisible injury case.
Whether they have the temperament necessary to handle an invisible injury case.
The first step in assessing these cases is to determine what the plaintiff has lost. The ideal plaintiff will be an active, productive person who has – against their will – become inactive and unable to remain productive.
"I look for people who were highly functional in their lives and have become dysfunctional," Krafchick says.
But plaintiffs' and defense lawyers alike agree that the invisible injury case is ultimately won or lost on the issue of credibility.
So plaintiffs' lawyers should ask themselves questions such as: Is the potential plaintiff believable? Are the experts authoritative and persuasive? Do the doctors really believe in the ailment? Do they have studies and expertise to back up their opinions? Do they express themselves with clarity, persuasiveness and conviction? What about the lay witnesses – usually friends, family members and co-workers who can speak to the ways in which the plaintiff changed in the wake of the alleged injury? Are their stories compelling and convincing?
"If I can get the plaintiff in an area where their credibility is damaged – whether they have directly lied about something or where you catch them in a misstatement or inconsistency – then that would truly hurt a fibromyalgia-type case," says defense lawyer Fasi.
The same goes for expert and lay witnesses. In invisible injury cases, it's all about trust: Can the judge or jury comfortably believe that this plaintiff has an injury, to the extent that they will award compensation despite a lack of hard medical evidence?
Plaintiffs' lawyers should look at their own personalities and practices as well. They should consider:
Do they have the time?
Invisible injury cases are more time-consuming than conventional PI and disability cases. They require a lot of legwork, interviewing lots of potential witnesses, spending time getting to know plaintiffs and their families, and tracking down experts who specialize in a little-known injury.
"It's a lot more time-intensive than traditional injury cases," says Howard Spiva, a small-firm lawyer in Savannah, Ga., who handles a large number of closed-head injury cases. To keep up with all of the interviews and other preparatory work, he keeps a number of trained non-lawyer assistants on staff, including paralegals, a nurse and a former insurance adjuster.
The trial itself will also take time.
"To do these cases properly, it takes five to 10 days just to try the plaintiff's side of the case," Krafchick says. "You need to have doctors in different specialties, and you usually have lots of medical records."
Do they have the money?
Because these cases require such extensive preparation, lawyers can run up a lot of out-of-pocket expenses up front.
"One recent fibromyalgia case I did here in Washington State cost around $50,000, another was in the neighborhood of $75,000," says Krafchick. "For a recent out-of-state case, we were looking at spending more than $100,000."
Part of Krafchick's strategy is to overwhelm the opposing side by matching every defense expert with multiple plaintiffs' experts, rather than simply matching them one-on-one. It can get expensive, and if you're not willing or able to fork out that kind of money, this may not be the legal area for you.
"The attorneys I've talked to who've tried these cases and not taken this [expense-heavy] approach have not been very successful," Krafchick says.
Do they have the right personality?
Experts say plaintiffs' lawyers should stay away from these cases unless they're able to work up the passion and conviction needed to convince a skeptical judge or jury that a client is truly entitled to compensation.
"You need to believe in your client and believe in the issues," says Krafchick. "If you don't, the jury's going to sense it. I have a total conviction that this is real, or I wouldn't be trying these sorts of cases."
It's also helpful to bring a compassionate, empathetic personality to the table.
"You've got to be passionate about these things, and care deeply about your client," Spiva says.
And it's not enough to just pay lip service to those ideals. Plaintiffs' lawyers have to roll up their sleeves and delve into the client's world, visiting their home, talking to their family, friends and co-workers, and building up an ironclad conviction in the case.
"You really have to learn the person before you can know how to translate to a jury what the injury has changed," Spiva says.
If that sort of hands-on lawyering doesn't appeal to an attorney, invisible injury cases probably aren't for them.
Prepping a Case
In preparing for settlement or trial, a plaintiff's first task is – or used to be – proving that the client's claimed ailment even exists. But nowadays, when the College of Rheumatology has issued diagnosis guidelines for fibromyalgia, and the CDC and Social Security Administration have recognized chronic fatigue syndrome, that is becoming less and less of a problem.
"The question, 'Is this a real condition or is it baloney?' really only comes from insurance companies now," says Krafchick. "You don't see that from the medical community quite as much."
So a plaintiffs' lawyer can focus most of his or her effort on establishing that the client has the disease, and – in the case of PI and employer-employee cases – that the defendant is liable. This starts with the medical literature – any studies of the new ailment that may be available – and the plaintiff's medical records, the only real physical evidence upon which the case can be built.
The literature will answer the question, "Is this diagnosis a legitimate diagnosis? Can the medical and legal community have some level of comfort that the diagnosis is what it claims to be?" says Davis.
The starting point with fibromyalgia, for example, is the 1990 criteria set by the College of Rheumatology – documenting tender points and offering the appropriate blood work (to rule out other rheumatic disorders such as osteoarthritis, rheumatoid arthritis, lupus, etc.).
"That gives the diagnosis a lot more validity and credibility, so that the other side can't attack the diagnosis itself," says Davis.
He adds, "A lot of people have pain, but they're not necessarily unable to work because of this pain. So these claims are won or lost on medical records: How well documented are the client's symptoms and limitations, their severity and frequency? Is there a specialist or rheumatologist involved? What level of pain medications are they taking? Judges always look at these things."
If a claimant complains of constant, disabling pain, but their medical records show that they're not taking any prescription pain medication, their credibility is severely eroded. If they ask for medication but their doctor refuses to prescribe it, this shows that even the patient's own doctor has little faith in their claim.
"Their case usually isn't going anywhere if their own doctor doesn't support the claim," notes Davis.
The possible exception to this rule occurs with primary physicians who are non-specialists, and may not have been aware that a claimed condition even existed. In those cases, a fresh review of the medical records may shed light on symptoms that fall into place in the context of an invisible injury.
Spiva offers the following model for questioning for plaintiffs' lawyers to ask these doctors:
Q: Doctor, during the first visit, three days after the accident, I see you've noted that my client had muscle spasms?
A: Yes.
Q: Did you actually put your hand on the muscle spasm and feel it?
A: Yes.
Q: So you know for a fact that it was there?
A: Yes.
Q: Is that something that the patient can fake?
A: No, it's absolutely involuntary.
Q: So doctor, the fact that their body was spasming – is that an objective sign that tells you there was an injury?
A: Yes.
Q: So this isn't something subjective, where you're just believing the patient?
A: No, that's an objective sign of an injury.
So invisible injury cases can still be viable even when the plaintiff's lawyer has less hard evidence than he or she would usually require in a medical case.
"The fact that MRIs or CT scans are negative is not inconsistent with the existence of, say, a head injury," notes Kenneth Kolpan, a Boston plaintiffs' lawyer and expert on invisible injuries.
"You have to look for other signs and symptoms as well – such as alterations of the plaintiff's mental state, nausea and vomiting, or post-traumatic amnesia of events immediately before or immediately after the accident," he says.
Spiva agrees.
"Whenever you have a soft-tissue injury that you can't see on an x-ray, it's going to be more difficult to convince a jury," he says.
Making the Connection
In PI cases, the trickiest task can be drawing the causal connection between the injury and the defendant's alleged action – especially if there is a gap in time between the alleged cause and the diagnosis.
For example, the work injury in the $2.3 million Washington State case wasn't diagnosed as fibromyalgia until two years after the plaintiff's accident.
In such cases, the typical defense is to argue that just because the symptoms began sometime after an event occurred doesn't mean this event is the cause. The defense will argue the claim is too vague – especially when the claimed injury is invisible, and the symptoms can occur so long after the alleged triggering event.
The bottom line? It all comes back to trust.
If the plaintiff comes across as honest and hard-working – not the sort of person who's looking for a free ride – and if the medical records show his or her complaints beginning after the triggering event, then a jury may find that the event is the cause even if the medical evidence isn't clear.
Choosing Experts
With a few exceptions, choosing experts in an invisible injury case is the same as in any injury case – you'll want someone who is authoritative, has published on the subject and is articulate and down-to-earth on the stand.
"You'll need an expert with enough knowledge and experience to begin educating the jury. That means being familiar with the medical literature, how these patients react to a treatment, how you diagnose them, and how you can sort out those who are faking from those who really have the condition," Krafchick says.
Because the medical community is divided on the existence of these ailments, plaintiffs' lawyers will want to dedicate a larger proportion of the expert's time establishing the existence and causes of the ailment.
Krafchick recommends that plaintiffs' attorneys try to out-expert the defense, to give the subjective opinion supporting your case at least a quantitative advantage. He suggests at least two experts for every one the defense offers.
"If you don't do this, then too much will rest on the credibility of any one witness," he says. "And oftentimes the doctors who say these conditions are baloney are very good blusterers."
Experts can help plaintiffs forge the causal link between the injury and the defendant's action. For instance, if your client suffered a neck injury in a car wreck, your expert might expound upon a recent study in Israel that found that people who suffered whiplash had 13 times more incidence of fibromyalgia than those who suffered leg injuries. The suggestion is that there is some correlation, although it has not yet been fully explained.
As with many studies, of course, the facts contained in the invisible injury literature can be distorted to serve almost any purpose.
"Sometimes doctors pick and choose from the literature," says Krafchick. "Also, they sometimes cite articles that are editorials and opinions rather than actual studies."
Gathering Lay Witnesses
A major component of a plaintiff's case will be lay witnesses – people who are a part of the plaintiff's life and can communicate a sense of the plaintiff's loss.
"Get as many lay witnesses as you can find," recommends Krafchick, who uses about a dozen in any given case. Due to the logistical challenges of a long trial, he says these witnesses are handy to call whenever you find yourself with a brief gap if an expert finishes testifying early, or gets delayed getting to court when they're scheduled to testify.
"We look for people who can paint a good picture in a short period of time," he says. "Don't waste your time with those who make vague statements like, 'They didn't hurt and now they hurt,' or 'They did work and now they can't work.'"
Because credibility is so important, "We want somebody who has done something with them – 'I used to go shopping with this person and we would walk from morning until night' or 'We used to close the bars down three times a week.' Or 'This person had so much energy, she'd be the last one on the dance floor' or 'Once, we went climbing Mount McKinley.' Something like that – which happened within, say, the summer before a collision happened – to demonstrate the plaintiff's prior physical ability."
Usually, a plaintiff won't be able to reel off such incidences during a meeting with a lawyer. If the activity occurs to them at all, they may dismiss it as insignificant. So plaintiffs' lawyers should root out the experiences that will be most useful in proving the case – roughhousing with the kids, playing racquetball with a colleague, using the stairs instead of the elevator at work. They should talk to the clients' family members, neighbors, people from their church and employers or employees.
"I get in there and learn the client's life," says Spiva. "I go to their house and spend time them and their families, look at their walls – what kind of awards are hanging there? I look in their family albums – what activities are in there?
"For instance, one of my clients had to give up his morning basketball game with his son. And your first reaction might be, 'So what?' But when you learn what that time really meant to him and his son, you can see that it makes a significant difference in their lives."
In another example, he tells of an older, unemployed woman who lived in the projects, and suffered a closed-head injury in a car crash. The defense portrayed her as fat and lazy – an unproductive person who had lost little by her injury.
Spiva's investigation, however, revealed that she was president of the project association, and a beloved figure to neighborhood children, for whom she often baked giant batches of cookies.
"That's how she got her feelings of importance, and that's how she communicated with people," he says. "So when she got in this car wreck and could no longer bake cookies; well, how do you replace that in somebody's life? These were the only things she did that gave her joy."
The Objectivity Gap
Because the defense's strongest argument is the plaintiff's lack of objective evidence for their injury, plaintiffs' lawyers recommend supplementing medical documents, expert testimony and doctors' testimony with a few additional items. These documents are intended to give the judge or jury some objective evidence upon which to hang their decision.
An affidavit from a co-worker or supervisor.
These can be hard to get due to the adversarial nature of these cases, in which the employer may be a defendant or fear an eventual ADA claim. But if a plaintiff can manage to procure one, it's a strong advantage, Davis says.
"I have found that it's very effective to get an affidavit from a co-worker or, preferably, a supervisor," he explains. "It should say something like, 'I worked with this person. Here's the before picture, here's the after. Here are the symptoms and problems that I observed. Here's what happened to their work quality. And in my opinion, this person is unable to do the job they used to do' – or, depending on the case, any job."
A functional-capacity evaluation.
Plaintiffs' attorneys recommend having a physical therapist conduct a functional-capacity evaluation. This is a half-day battery of tests that provides an objective set of answers to the question of exactly what work a person is physically capable of performing.
"It gives you a more objective idea of how a person is limited by their pain, their fatigue, and their other physical problems," says Davis.
A vocational expert report.
The functional-capacity evaluation can be paired with a vocational expert's report. The vocational expert uses objective statistical data to offer an opinion as to what kind of work, if any, a person is qualified to do based upon their age, education, work experience and physical limitations.
A neuro-psychologist report.
Defendants frequently argue that the injury is all in the plaintiff's head. In Social Security cases, the psychological distinction isn't a bar to recovery. But in PI or insurance disability cases, it most definitely can be. So if you want to shore up a case where the psychological element is particularly marked, Davis recommends getting the client a psychological evaluation.
"That either rules it in or out as a causative factor," Davis says.
However, even if there is a psychological factor, psychologists may find that an emotional symptom – say, depression – is simply a natural reaction to the physical disorder.
"They'll find that if the fibromyalgia or chronic pain or chronic fatigue weren't there, then the depression wouldn't be there," Davis explains. "Statistically, there's a heavy psychological component that's oftentimes associated with fibromyalgia. Generally, that component is secondary to the fibromyalgia, but a lot of the cynics – whether they be doctors or judges – tend to raise an eyebrow, and dismiss the whole thing as a psychological disorder."
Some defense lawyers question neuro-psychology altogether.
"Neuropsychology doesn't rely on hard diagnostic studies," says Denver defense attorney Matthew Biscan, whose practice includes a lot of medical liability work. "It's an area that's certainly in dispute in the legal community and, to a lesser degree, in the medical community. So you need to attack the science in cases like this. It's also very, very important to comprehensively investigate the plaintiff's intellectual functioning before the accident, and to question the credibility of any witnesses relating a change in his or her personality."
Closing Arguments Are Key
In closing arguments Spiva has had good luck describing invisible injuries by metaphor.
"I'll tell the jury, 'You can't see this injury on an x-ray, but you've seen all the results of the injury. In the same way, when you look outside, you can't see the wind, but you can see the trees bending so you know it's there,'" he says. "Or I'll say, 'Before the Hubble telescope, you couldn't see a lot of the galaxies that are out there, but they were still there. And this injury is there too, it's just that our medical technology hasn't yet advanced far enough for us to be able to see it.'"
Ultimately, it all comes back to credibility – which can not only win or lose a case at trial, but can also affect settlement before trial.
"If I look at one of these cases, and find that the plaintiff is not to be believed – because their medical records show great inconsistencies or, worse yet, because we have them on video surveillance doing the things they say they can't do – then that case is gutted," says defense lawyer Fasi.
But if he senses a legitimate complaint, however invisible it may be, he's always willing to negotiate.
"In some cases, I can't find an inconsistency," Fasi says. "And my expert tells me, 'You know, this person doesn't seem like the typical calculating plaintiff who's out to make a buck; I think this person is really injured. That's when I'll say to myself, 'All right, then maybe there's something here,' and I'll take the case with more than a grain of salt."