October 3, 2018

ACCIDENT BENEFITS UPDATE: CHRONIC PAIN IS NOT A MINOR INJURY (AGAIN!)

The central issue in the recent Reconsideration of 17-000835 v. Aviva General Insurance Canada (2018 CanLII 83520) was whether chronic pain should be considered a “minor injury” or “clinically associated sequelae” under the Minor Injury Guideline (MIG) and Statutory Accident Benefits Schedule (SABS). While this issue should have been resolved already, Insurance companies continue to use the MIG as justification for denying payment of benefits to chronic pain claimants.
The Applicant, T.S. was injured in a collision on January 16, 2015 and sought treatment through his automobile insurer, Aviva. Based on the report of his initial injuries, his claim was processed under the MIG by Aviva, and was subject to a $3,500 cap on funding.

 

After he exhausted the $3,500 cap, the Applicant submitted treatment plans for ongoing rehabilitation of his persisting injuries.  Aviva denied the plans, explaining that the MIG was applicable, and therefore there was no additional funding available for treatment.

The Applicant applied to the Licence Appeal Tribunal (LAT) seeking payment of the outstanding treatment plans and an acknowledgement that his ongoing accident-related chronic pain meant that the MIG framework should not apply. At the hearing, the Tribunal disagreed.  It accepted Aviva’s position that the Applicant’s chronic pain was “clinically associated sequelae” of a “minor injury” and that the MIG therefore did apply to his claim.

Following her review of the decision, Executive Chair Lamoureux found that the Tribunal had made significant errors.  She overturned the decision, holding that chronic pain exceeded the injuries intended under the MIG.  Specifically, she found that the Tribunal had applied an overly narrow interpretation of the relevant provisions of the MIG, in opposition to its plain language reading and to the legislature’s overall purpose for introducing the MIG framework.  

The MIG defines a “minor injury” 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.”  It was not disputed that the Applicant’s initial injuries fell under this definition. However, he provided expert evidence from an Orthopaedic surgeon stating that he suffered from Chronic Pain Syndrome more than 2 years post-accident.  Significantly, the Tribunal accepted this evidence, and acknowledged that the Applicant did, in fact, suffer from CPS. As well, it agreed that the proposed treatment plans were reasonable and necessary treatment for the condition.

Despite these findings, the Tribunal held that the claim was barred because the Applicant’s chronic pain should be considered “clinically associated sequelae” of his initial injuries.

Executive Chair Lamoureux rejected the Tribunal’s conclusion. She highlighted the fact that chronic pain is not listed under the MIG definition of “minor injury”.  While “clinically associated sequelae” is undefined in the MIG, the Executive Chair refused to recognize chronic pain as appropriately described in this way.

The MIG is organized around a 12-week “functional restoration” model of rehabilitation for minor injuries including Whiplash Associated Disorder.  The purpose of the 12-week model is to prevent minor injuries including Whiplash from becoming chronic. The only reference to chronic pain in the MIG is contained in Appendix A, a “Getting the Facts about Whiplash Brochure”, in a section entitled “Avoiding Chronic Pain”.  

Based on this reference, Executive Chair Lamoureux concluded that the legislature, when drafting the MIG, specifically considered that “minor injuries” like Whiplash may develop into a more serious condition, and offered the 12-week MIG framework as a possible means of avoiding this development.  As a result, it would make no sense to recognize chronic pain as a “clinically associated sequelae” under the MIG definition.

The Executive Chair referred to the principle under the Legislation Act that, “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”  Aviva had argued that one of the purposes of the MIG was, “to provide certainty around cost and payment for insurers and regulated health professionals”. It claimed that there could be no certainty around cost and payment if chronic pain following MIG injuries was not also captured under the MIG framework.  

Executive Chair Lamoureaux acknowledged that Aviva’s position did reflect a purpose of the MIG.  However, the larger purpose of the SABS (and the MIG, by extension) was consumer protection including the provision of timely and effective access to health care for automobile accident victims.  Treating chronic pain in the way Aviva proposed, and the Tribunal had decided, was contrary to these purposes.

As a result, the LAT decision was cancelled, and several proposed treatment plans were approved.  

This is an important reaffirmation of what should be an obvious fact- documented chronic pain claims do not fall under the MIG framework, even if the original injuries did.  However, insurers continue to use the MIG to justify delays in approving treatment plans to minimize their costs and frustrate claimants into undervaluing their accident benefits claims.  If you or a loved one are facing this situation, or if you have other questions, please do not hesitate to contact us for a free consultation.  

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