As experts in managing risk, insurance companies will go to great lengths to sniff out and protect against fraud – sometimes to the point of denying compensation to honest victims. In the absence of objective and incontrovertible evidence, chronic pain sufferers and their legal representatives need to establish a credible, comprehensive claim that will pass an insurance provider’s many tests. Fortunately, the Supreme Court of Canada has recognized the existence of chronic pain as a legitimate source of impairment and disability. The absence of objective findings and mainly subjective complaints can be the basis of a real chronic pain disorder and the foundation for a legal claim to compensation in Ontario.
As disorders like fibromyalgia and chronic fatigue syndrome have gained wider acceptance in the courtroom, insurers have been less successful in denying or cutting off disability payments. But they still scrutinize claims closely, especially where the disability is harder to prove – and over years of defending themselves in court they have learned how best to cast doubt.
Surveillance is considered valuable evidence in refuting a claim of disability. Insurance companies routinely hire private investigators to capture the claimant on camera, in the hopes of catching them doing something incriminating like engaging in yard work or driving a car.
The video or photographic evidence can be damaging to a claimant, particularly when they are caught doing something they told their insurer or doctor they couldn’t. In the insurer’s eyes, it could be a case of exaggerating claims to avoid work; though trial judges, now better aware of such disorders, know that pain can be recurrent rather than chronic and sufferers can have good days and bad.
Insurance companies and their investigators will also take any opportunity to paint the claimant as untrustworthy or not credible. They may actively pursue neighbours, former co-workers or other associates, in search of conflicting stories or incriminating evidence. Part of that may entail the claimant’s work history, where investigators look for anything to indicate that person is looking for a free ride.
Getting insurance companies to provide fair compensation in chronic pain cases requires the legal expertise of someone who understands how to stand up to such tactics. Establishing the claimant as a consistent, credible and honest individual, with the backing of valuable medical evidence, is the way to success in these hotly contested cases.
