"I've never been in so much pain in my life." When the claim adjuster hears these famous words but the trauma that led to the claim was minor, believability becomes the issue. Now science and technology may be coming to the adjuster's rescue.
Pain has always been a nebulous factor for evaluation in a casualty claim. The fact that pain, suffering, and discomfort are elements of general damages in a liability claim makes proving the damages an issue. The burden falls to the claimant, but the adjuster cannot just sit around and await the notorious "package."
It is well known that pain is experienced differently by people. Some have a high tolerance for pain, whereas others have a low threshold. Sociological factors often play a role in how people experience pain. A social environment may encourage individuals to be stoic about their aches and pains, while others complain bitterly (and often) about even slight discomfort. The adjuster must deal with both types.
The fact is that no one can see pain; however, it can be imagined. I was recently on a train sitting next to a man with a splint on his wrist. Curiosity led to questioning, and the man revealed that he had been riding his bicycle when he fell, fracturing his left elbow and his right wrist. Being in semi-state of recovery from a torn rotator cuff myself, I could imagine the amount of pain this poor gentleman was suffering. The pain, undoubtedly, was omnipresent. It was severe at moments, but perhaps occasionally forgotten when other factors drew his attention.
Most casualty adjusters wish there was a way to prove or disprove pain. It has been the subject of many of my columns over the decades. Pain experts tell us that pain is real and that it can be debilitating. It's more than just a nuisance. Not only does it disrupt and change our lifestyle, but it also makes the victim — and anyone around the victim — miserable. Doctors try to assess a patient's pain on the basis of a scale of one to 10, with 10 representing "unbearable." But what causes the worst pain? Some likely candidates are child birth, kidney stones, reflex dystrophic syndrome (RDS), and lower-back pain. I'm sure any of those who have suffered these pains would place them high on the doctor's scale. Some that claim electrical stimulation, using a transcutaneous electrical nerve stimulation device helps. Other pain clinics use biofeedback.
Technological Breakthroughs
A few decades ago, the insurance industry bought into the idea that pain could be viewed through a process of "thermography." Many physicians, especially those who were frequently involved with auto accident or workers' compensation claims, purchased gizmos that supposedly measured the infrared heat produced by pain, and took a photograph of it. The patient would lean against this gizmo, which measured the various hotspots on the patient's body. When the hotspot matched the location where the patient said he hurt, then there would be a "Eureka!" moment. The pain was visible. Somehow the process lost its validity, and we don't hear much about thermography any longer.
Now medical science has come up with another method of measuring pain. According to an article written by Jonathan Leake, science editor for the International Herald Tribune (June 7, 2009, pg. 6), scientists at England's Oxford University have found a way to measure pain. The process, reports Leake, uses brain scans to measure the true depth of a person's pain. He reports that "a series of studies involving brain imaging techniques, such as functional magnetic resonance imaging (fMRI), has shown distinct differences between the brains of people in pain and others who are not." In the article, Leake quotes Dr. Irene Tracey, professor of anesthetic science at Oxford and director of its center for fMRI.
"Pain seems to increase the blood flow to certain parts of the brain, roughly in proportion to the amount of pain felt, and we can measure the activation in a brain scan," she says. The Oxford scientists refer to this as a "pain matrix" that activates more than a dozen parts of a brain.
"Such findings … could one day be measured objectively, a change that would have widespread legal and social implications," Leake wrote. "In accident compensation cases, for example, lawyers might be able to order reports on just how much pain a victim was suffering. Doctors might also be able to monitor the exact benefits of drug regimen and treatments. Professor Tracey, speaking at a Cheltenham [U.K.] science festival, said 'the aim was to build a generalized model of how pain activated the brain, collated from scans of many different people. Then individuals suffering chronic pain could be compared with the model to give a measure of the type and level of pain they were in.'" Perhaps such a method of testing might even reveal if the pain was being exaggerated.
Pain: Real or Imagined?
Insurance adjusters have struggled for a century or more with the issues of whether pain was real or merely an exaggerated symptom that a claimant or insured alleged to boost a claim's value — something akin to malingering. The decisions are simple when there are fractures or lacerations or other evidence of physical trauma. When the pain cannot be envisioned by the physical evidence, however, it becomes difficult to prove one way or the other.
The so-called low-impact, soft-tissue injury (LIST) claim has led many insurers to resist paying for pain and suffering when there is no tangible evidence except a patient's declaration of "hurt." That resistance can even lead an insurer to the courthouse, where it must defend its position that the impact was not severe enough to cause the pain being alleged. When the refusal to pay a claim takes on unreasonable aspects, the result can often be a bad-faith claim.
In one Hawaiian case — I'll not cite the case name to protect the guilty — the insurer was found by the state's Supreme Court to have intentionally inflicted emotional distress on the claimant. The 84-year-old claimant was stopped in traffic when her car was struck from behind by the insured, who told the insurer that he had fallen asleep. The plaintiff's car was totaled, and she suffered neck, rib, knee, thoracic and lumbar spine injuries. In addition, she began to suffer from depression.
It was during this time that the involved auto liability insurer had designed its claim-handing procedures in a manual called the "Claims Core Process Redesign." This stipulated that, with a minor impact and soft-tissue injuries, there were to be immediate promises made to the claimant that the insurer would provide "quality service." Instead, low offers were to be made, along with assurances that the claimant did not need to seek legal advice. If the claimant sought representation, then the insurer was to initiate what one legal commentator termed "a scorched-earth litigation policy," contesting every aspect of the claim regardless of its merits, and appealing any arbitration award or judgment, without regard to the merits of the case.
The elderly claimant's medical bills totaled more than $6,000. The insurer first offered $5,000; it then increased the offer to $5,300. The claimant believed that the insurer had breached its promise to provide "quality service," and so she filed a lawsuit. The insurer maintained its $5,300 offer during a court-ordered mediation, and the matter went to arbitration, where more than $45,000 was awarded. The insurer, of course, following its manual, appealed, and the case went to trial. The jury awarded the lady almost $200,000, along with attorney's fees and prejudgment interest.
The plaintiff then filed another lawsuit against the insurer alleging that the insurer's claim plan was an abuse of process leading to malicious defense and intentional infliction of emotional distress, as well as a breach of the insurer's duty of good faith and fair dealing. Hawaii does not recognize a third-party, good-faith duty of insurers, and a state circuit court granted the insurer's motion to dismiss on the various grounds. The plaintiff appealed to the state's high court, which affirmed the dismissal with the exception of the intentional infliction of emotional distress action. Two dissenting justices indicated that they would have adopted a tort of malicious defense, but the insurer won on three of the four allegations. Trial on the remaining issue is still pending in the state courts, with yet an additional jury to determine the insurer's fate for its claim practices.
Fighting Fraud
As discussed in the June column, casualty insurers allege a $30 billion loss each year because of claim fraud. That is basically a guess, as the vast majority of fraud cannot be proven, and even the Insurance Information Institute terms much of this as "soft fraud," such as exaggerated pain and suffering. Undoubtedly, the insurer in the above claim would argue that their tactics (which it may or may not still employ) were intended to prevent fraud. But it is precisely stories such as this that lead the public to be receptive to the television ads from plaintiff attorneys who charge that every insurer is out to rob the accident victim.
There are valid arguments on both sides of the pain game. A few years ago on a temporary assignment to handle some sub-prime insurance market claims, those same advertising attorneys were accepting offers of 50 percent or less of the amount of medicals they had submitted in their so-called "package," on clear liability claims. It was obvious that the attorney, the doctor who prepared the bills, and the claimant who was "so severely injured," were less than forthright. But what insurer can afford to defend all such claims? The nonsense is out there, and perhaps the only way to counter it is to go back to the old-fashioned process of visiting every injured claimant in person.
In Agatha Christie's first mystery novel, The Murder of Roger Ackroyd, she quotes Rudyard Kipling, who stated the motto of the mongoose. The furry little animal in India is somewhat like a weasel. It is always scurrying about with its nose to the ground. Its motto is to "go and find out." This makes perfect sense to any adjuster whose claimant alleges, "I'm in pain."
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