When the mind fails to heal

Personal injury lawyers, on the plaintiff and insurance-defence side, say they are increasingly dealing with claimants diagnosed with somatic symptom disorder, previously known as somatoform disorder.

When the mind fails to heal
Illustration: Isabelle Cardinal

Personal injury lawyers, on the plaintiff and insurance-defence side, say they are increasingly dealing with claimants diagnosed with somatic symptom disorder, previously known as somatoform disorder. The proliferation in diagnoses of this psychiatric condition and recognition by the courts in personal injury cases marks the increasing recognition of mental illness in society, though it remains difficult to win damages for what is a mysterious and hard-to-define condition.

Somatic symptom disorder, or SSD, is a psychological condition in which an injured person, though physically healed, is still in pain, often chronic and experiencing physical weakness, stress, anxiety and depression. They have “excessive and disproportionate thoughts, feelings and behaviours” associated with the symptoms, resulting in “significant disruption of functioning,” according to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which is put out by the American Psychiatric Association. Regularly meeting with a doctor, psychotherapy and anti-depressant or anti-anxiety medication are the suggested treatments.

Kiran Birdi is an associate at Scott Venturo Rudakoff LLP in Calgary, working almost exclusively in personal injury on the insurance-defence side. Since she began practising eight years ago, she says she’s seen an “astronomical” growth in the number of claimants who, after a minor injury, are suffering from SSD, often unable to work and fighting with their insurance company, years after the incident. Birdi says she is currently working on 10 files where the claimant has the disorder.

“You’re thinking, ‘really, why am I still dealing with this file? Six years after the fact?’” she says.

In personal-injury law, SSD often arises when a person is injured and their injury becomes so central to their life that they become obsessed, experiencing real pain and psychological distress that is out of proportion to the seriousness of their injury when compared with others who have suffered comparable injuries. That can mean those with the illness can appear like malingerers or frauds building a claim by seeking a plethora of different treatments for pain after their injury has healed.

“This is not somebody faking or committing fraud,” Birdi says. “They genuinely believe it and their diagnostic protocol is in place.”

Amelia Staunton is a Vancouver partner at insurance defence boutique Dolden Wallace Folick LLP and has defended personal injury claims for 14 years, mostly catastrophic bodily injury claims. She says she too has seen a rise in diagnoses for SSD and other psychiatric disorders and that the 2017 Supreme Court decision Saadati v. Moorhead has crystallized the importance of considering the psychiatric injuries which accompany physical injuries that are the result of a tortious act.

In the British Columbia motor-vehicle case, Mohsen Saadati sued Grant Moorhead, Thi Hao Hoang and Able Leasing Ltd. for negligence causing mental injury. The trial judge awarded Saadati damages for mental injury based on lay witnesses who established that Saadati’s personality had changed due to the accident, rather than using expert witnesses to give a medical opinion of a “recognizable psychiatric illness.” The Court of Appeal found that approach lacking and reversed the decision.

The Supreme Court, however, took a different approach. The court found that requiring mental injury to pass the threshold of medical-expert testimony showing a “recognizable psychiatric illness,” while not requiring the same “classificatory label” of physical injury, would amount to unequal protection for those with a mental injury.

“The law of negligence accords identical treatment to mental and physical injury,” the decision states. The court cited the Supreme Court case Mustapha v. Culligan of Canada Ltd. as setting out the threshold for mental injury. In that decision, the justices wrote that psychological injury must rise above “psychological upset.” It must be “serious trauma or illness” that is prolonged and cannot be merely “disgust, anxiety, agitation.” In Saadati, the justices found the injury passed that test.

Staunton says that prior to Saadati, case law in B.C. indicated that psychiatric injury without an underlying physical condition was not compensable, with some exceptions.

“It is, I think, sort of emblematic of a trend at the plaintiff’s bar to look at the plaintiff as a whole person, rather than just focus on the physical injury,” she says.

Staunton also believes that the broader public health policy in the province is leading to the increase in SSD claims against insurers. B.C. has seen closures of mental health facilities to move to a “community-based system,” she says.

“I personally have noticed that with the dilution of mental health services in this province, that there’s been a corresponding increase in the volume of these claims,” she says.

“Plaintiffs who have these disorders and genuinely want to be treated can’t find people to help them. And that’s a real problem.”

Renn Holness of Holness Law Group PLC in Vancouver has been working in personal injury law for 22 years and happens to be the son of a former head of Neurosurgery at Dalhousie University and president of the Canadian Neurological Society.

In 2013, when the DSM-5 came out, it brought together several disorders under the banner of SSD to “better reflect the complex interface between mental and physical health,” according to the American Psychiatric Association. While good for treatment, Holness says the diagnostic criteria are restrictive for the purposes of the courts. If a claimant has PTSD, anxiety, depression or other symptoms, the psychiatrist on the stand will only diagnose SSD, as per the DSM-5’s standards, he says.

“That’s well and dandy for treatment, because then that can focus the treatment and ultimately, in a practical sense, it provides the funding,” he says.

But to convince judge and jury that the claimant is not malingering, Holness says they need a more detailed description of the various aspects of the condition from expert testimony.

That is because, unlike a straightforward health condition backed by something tangible like an X-ray, these cases turn on the credibility of the plaintiff. So, despite the rise in SSD cases noted by Birdi and Staunton, Holness says he often advises clients not to put themselves at risk of a trial, spending tens of thousands of dollars on experts only to have the judge or jury decide they don’t like them.

“A lot of people don’t pursue it and the people that do pursue it are really in peril because they don’t have the X-ray, they don’t have the scan, they don’t have something they can just say, ‘Hey, it’s real!’ and then, of course, a good defence lawyer’s going to create all these doubts.”

Charles Gluckstein of Gluckstein Lawyers in Toronto says that SSD is the “most litigated disability” and that, in his experience, the vast majority of claimants lose.

“The difference-maker ends up being will they like the client or not?” he says. “And that’s hard to do when you’re an injured person because someone who’s complaining all the time and telling you it hurts everywhere is not usually the person you want to hang out with.”

Rose Leto, a partner at Neinstein Personal Injury Lawyers LLP in Toronto, says that insurance companies tend to focus on statistical evidence. If people typically recover from whiplash in three to six months and most respond to a treatment, an outlier with SSD who has no physical signs that would explain the pain takes on the burden of having to prove they’re not a liar. And plaintiff lawyers say they are met with the defence side, who will thoroughly research, inspect and investigate the claimant’s life in any way they can.

Apart from the real surveillance that insurance companies often employ, they will also use a plaintiff’s social media profiles to show inconsistency in their claims. “I call social media free surveillance,” Leto says.

The problem, Leto says, is that SSD is inconsistent. The sufferer has good days and bad days.

“If there’s a picture on a vacation or rock climbing or a social event, then it’s possible that the smile that they have in that selfie will be misconstrued as ability,” she says.

“They’ll use the photograph taken on a good day to suggest a lack of credibility.”

Insurance companies will also use evidence of pre-existing psychiatric conditions to argue that the claimant is a “crumbling skull,” personal-injury parlance for someone who would have developed the SSD from other life events, regardless of the event in question.

Leto, who practises primarily in motor vehicle accidents, slips and falls and long-term disability, says she focuses mainly on lay witnesses; friends and family who can describe what the plaintiff was like before and after the event.

“You definitely need expert evidence that’s not going to be replaced but it does, in these types of cases, turn a great deal on the lay witness evidence to corroborate the problems,” she says.

Adding insult to injury, Gluckstein says there is a severe societal impact where those suffering from chronic pain who cannot win compensation have, until recently, also been prescribed opioids to deal with the pain.

“The origin could be from a minor car accident and then you’re left with an addicted person to opioids because of the way the system neglected them and just said, ‘Here, take another pill,’” he says.

“I’m sure a lot of these opioid suicides and overdoses can be linked to an original pain management issue that got out of control,” he says. “And some of those would be reflective of neglected injury cases, workers’ comp cases, slip and fall cases, disability cases that were neglected through their system, either through insurance or through the public system.”

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