This blog post will focus on Chronic Pain. For more information on the categories and their criteria, please see our Introductory Blog.
This series of blogs focus on the Minor Injury Guideline (MIG) vs. Non-Catastrophic Impairment (NCAT) demarcation and gives an overview of the types of injuries that the License Appeal Tribunal (LAT) recognizes as not being a “minor injury” as defined by the Statutory Accident Benefits Schedule. The personal injury lawyers at Littlejohn Barristers have significant experience representing clients suffering from chronic pain. If you have been in an accident or have been denied disability benefits and suffer from chronic pain, contact our Barrie office at 705-725-7355 to see if we can help.
WHAT IS CHRONIC PAIN?
Although there is no authoritative definition, the Supreme Court of Canada (“SCC”) defines chronic pain as: “… pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques.”
Nova Scotia (Workers Compensation Board) v. Martin, 2003 SCC 54 (CanLII) at para 1 .
Pain is defined by the International Association for the Study of Pain as “an unpleasant sensory and emotional experience associated with actual or potential tissue damage or described in terms of such damage.” This definition accounts pain beyond the direct physical tissue damage, and therefore includes two types of pain:
Acute: Common physical response to injuries where the pain lasts for less than six months, following the underlying cause for the pain (i.e. cut/bruise, a broken bone, surgery, childbirth, etc.). This pain normally subsides 85% of the time.
Chronic: Where pain persists “beyond the expected healing time of the medical disorder thought to have initiated the pain.” The expected healing time is typically the aforementioned six-month period. While six months is a largely arbitrary number, it is meant to encompass the expected time of healing required of most situations with tissue damage (with the exception of injuries to the nervous system).
Chronic pain syndrome can exist through multiple disorders, such as Central Sensitization and Somatic Symptom Disorder. There are debates in the medical community as to whether this is a biological or psychological impairment, but regardless of the disorder or categorization, they carry a common characteristic in that the pain is continuous, disabling, and can result in a ‘vicious circle’ where reinforcing chain of events that exist in a negative feedback loop with detrimental results (i.e. employment loss leads to greater injury etc.). Injuries may also persist in certain cases without becoming chronic pain, where there is pre-existing low bone density, diabetes, coronary artery disease, or prior injuries.
LEGAL RESPONSES TO CHRONIC PAIN AND THE MIG
The MIG establishes a framework for the treatment of minor injuries. A “minor injury” is defined in subsection s. 3(1) of the SABS as: “… one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
Statutory Accident Benefits Schedule [O. Reg. 34/10], s. 3(1).
In G.S. v. Aviva General Insurance Company, 2019 CanLII 51320, the Appellant insurer argued that the adjudicator was required to consider that the applicant’s chronic pain was a sequelae of his minor injuries if those originating injuries were in fact minor. This argument was rejected by the adjudicator, who found that the term “minor injury” does not encompass chronic pain because chronic pain is not included in the definition and is not a clinically associated sequelae to a minor injury.
The chronic pain must, however, meet a threshold in order to take an injured person outside of the MIG. In the Reconsideration Decision of T.S. v. Aviva, 17-004847/AABS, the Tribunal stated that eligible chronic pain must meet certain criteria, including:
An accompanying functional impairment; and
A cause of suffering and distress for that functional impairment that rises to a certain threshold.
“Essentially, a diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.”
16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28.
Positive recognition of chronic pain is also supported by the Canadian Charter of Rights and Freedoms (“Charter”). In Nova Scotia (Workers Compensation Board) v. Martin, 2003 SCC 54 (CanLII), the SCC affirmed that chronic pain is a disability under section 15 of the Charter and made it unconstitutional for the SABS to discriminate on that basis.
Therefore, despite arguments to the contrary, chronic pain is not inherently a clinically associated sequela of a minor injury and does not automatically keep the injured party in the MIG, even if the original injury was minor. If chronic pain resulting from a minor injury (1) causes functional impairment that (2) results in suffering and distress rising to a certain level, then the individual should be discharged from the MIG. This would allow the injured person to seek more treatment and benefits.