The majority of fibromyalgia claims stem from relatively minor accidents and injuries. For this reason establishing a duty of care and a negligent breach of that duty is often as straightforward as regular claims. Where it gets complicated is where causation is concerned.
When claiming compensation for personal injury, the following criteria must be met:
- You are owed a duty of care by the defendant, and
- The defendant was negligent in breaching that duty of care to you, and
- The negligence caused the injury and losses that you are seeking to recover by way of compensation.
In many claims this is relatively straightforward. For example, a car driver, who owes a duty of care to other road users, was negligent by failing to keep a proper lookout and collided with another vehicle. Through negligently colliding with the other car, he is now liable for all losses that were caused by his negligence, such as vehicle damage and personal injury. This last part is called ‘causation’.
The primary argument of any defendant defending a fibromyalgia claim would be, how reasonable is it to establish that a seemingly minor accident caused such a debilitating and long term pain condition which will not allow the claimant to work or care for themselves as they did prior to the accident?
Although there is much medical literature supporting the link between soft tissue injuries and fibromyalgia, there are many other factors that can contribute to the development or progression of fibromyalgia. These can include previous injuries, emotional or mental stressors, or other medical conditions.
With this in mind, it is crucial that your medical and personal history is examined to ascertain to what extent the accident caused the fibromyalgia.
Fibromyalgia, like other pain conditions, is rarely consistent. There are good days and bad days. There are days where you are able to manage relatively pain-free, whereas on other days, getting out of bed seems near impossible. Defendants often employ surveillance operatives to follow fibromyalgia claimants in order to confirm that the claimant they are being presented with is consistent with the claimant they have been watching. The difficulty with this is, you are only going to be under surveillance when you are out and about and you are only out and about on your good days. What the defendant won’t see, is the days when you are in bed unable to move or stuck at home due to a flare-up of your symptoms. The solution to this would be for us to pay close attention to the extremes of your condition. The extent and frequency activity undergone on a good day and contrast that with a bad day. This paints a clearer picture of both sides of the chronic pain and removes any doubt into your condition.
If your fibromyalgia is severe to the point where you can no longer return to work and you will need long-term care and assistance, calculating this loss is not always straightforward. Apart from calculating what you would have likely earned in absence of the accident, natural degeneration and other risk factors must be taken into account in order to accurately calculate the losses that have stemmed from this particular accident.
As fibromyalgia claims are often fairly valuable, the defendant would be seeking to get away with making the smallest pay-out possible. For this reason, any opportunity of attacking your case will certainly be taken advantage of by the defendant. This could be disheartening and stressful for you as a claimant.
Due to the complexities and nuances of a fibromyalgia claim, the process can take a lot longer than you may expect, with many cases going on for 2 to 3 years.
At Brian Barr Solicitors, we know how to best represent a fibromyalgia claim. So whilst at times it seems that the world is against you, know that you are in safe, caring, and professional hands. Solicitors who will do their utmost to ensure that you receive the compensation you deserve whilst giving you the support that you need along the way.