The Mysterious Case of RSD

Claims officers across Canada should be preparing for the latest type of auto collision-related injury, known as ‘Reflex Sympathetic Dystrophy’ [RSD].

Jamie Chipman, a partner at Stewart McKelvey Stirling Scales in Halifax, issued the warning at CICMA/CIAA Ontario’s 40th Annual Joint Conference in Toronto.

Insurance adjusters should have their “ears to the ground,” Chipman said, always looking out for the “lizard factor” in claimants who are asserting RSD.

RSD is of uncertain origin and is a “newly formed and relatively untested” condition, Chipman notes in his conference paper. Sometimes the only way to avoid large claims payouts in RSD cases is to target the credibility of the people asserting RSD before a jury of their peers.

But even if defence litigators can keep RSD cases from reaching the sympathetic ears of a jury, Chipman noted, “there are nave judges out there who want to believe in people’s tales of woe.”

The principle dilemma for insurers in defending RSD claims is causation, Chipman observed. For example, do auto collisions directly result in injuries that manifest as RSD symptoms? Or is RSD a secondary byproduct of the injuries arising out of a collision? Or are RSD symptoms entirely unrelated to a claimant’s auto injuries?

Medical researchers themselves are not clear about RSD’s origins. Citing medical texts, Chipman told his audience of claims professionals “there is no universally accepted theory to explain the genesis of RSD.” According to one medical author Chipman quoted, RSD “may develop spontaneously.”

In his paper, Chipman quotes the definition of RSD – also known as ‘Complex Regional Pain Syndrome’ [CRPS] – advanced by Drs. Maria Wilson, Michael Stanton-Hicks and Norm Harden, who are cited as experts in the area.

“CRPS describes the way of painful conditions that are characterized by continuing (spontaneous and/or evoked) regional pain but is seemingly disproportionate in time or degree to the usual course of any known trauma or other lesion. The pain is regional (not in a specific nerve territory or dermatome) and usually has a distal predominance of abnormal sensory, motor, sudomotor, vasomotor and/or trophic findings,” the doctors say. “The syndrome shows variable progression over time.”

Symptoms of RSD may include burning pain, temporary changes to the temperature or colour of the skin, sweating and joint loss of functioning, to name a few.

In one insurance case involving RSD, a judge was “brought to tears” when the plaintiff in the auto insurance case told the court about her RSD symptoms, Chipman said. Assuming the point of view of the insurance defence counsel, he added: “When that happens, you know your case isn’t going very well.”

Teed v. Amero helped put RSD on the claims officers’ legal map in 2001. In that case, Calvin Teed was talking to a farmer while lying on his back under his truck, trying to fasten chains to the wheels of a truck. A second truck arrived on the scene, and the farmer told the driver of the second truck that there was no room for him to proceed through the narrow space beside the truck. The second truck proceeded anyway, and drove over Teed’s leg, severely injuring him.

The court was satisfied that Teed had received almost every possible treatment available for RSD, with little result. General non-pecuniary damages were awarded in the amount of Cdn$150,000.

Since then, the Nova Scotia Court of Appeal has made some observations about RSD in its 2007 Abbott v. Sharpe decision. In that decision, Tammy Murina Sharpe was a front seat passenger in a vehicle that was stopped in a line of traffic and rear-ended by a van behind it.

Sharpe went to her local hospital complaining of discomfort on the left side of her neck, which radiated into her left shoulder and upper arm. She was given a soft collar and prescribed muscle relaxants.

Eight months after the collision, and 29 physiotherapy treatments later, Sharpe reported hip pain and was subsequently diagnosed with RSD. A lower court awarded her Cdn$750,000, which the appellate court lowered to Cdn$625,000.

The crucial question in this and other RSD cases is whether a causal link can be established between the pain associated with RSD and the motor vehicle collision. Given the lack of consensus about RSD within the medical community, many in the industry question whether a trial by a jury of non-medical experts is suitable for claims involving RSD. Chipman noted that in jury trials, “the mere mention of RSD ramps up the awards” to plaintiffs.

Chipman’s presentation included advice to insurers dealing with RSD cases, or other cases in which the medical origins of the symptoms are unclear.

“The most important thing to remember when dealing with RSD is that there is relatively little known about its origin or treatment,” Chipman’s paper states. “As a result, most, if not all, of the evidence presented at trial comes from the testimony of the parties and the doctors who treat them.

“The importance of using the right expert cannot be understated.”

Since RSD cases commonly rely on the credibility of the testimonials, insurers must prepare for the case with strong documentation, including reports and adjustments by independent medical examiners (IMEs).

Definitely RSD cases should be “kept away from a jury,” Chipman added.

As far as documentation is concerned, insurers will have to make sure they get the opinion of an IME. If one IME says they cannot do the job, then quickly find one who can, Chipman recommended at the CICMA conference.

The nature of the injury must be carefully documented, as well as the circumstances surrounding the original event. Also, Chipman says, since the credibility of the person suffering the pain is an issue, insurers should find any past employment, medical or even school records that might bear on the origins of the RSD symptoms being claimed.

All efforts should be made to try mitigation arguments, Chipman advised.