Accident benefits updates in Canada

ACCIDENT BENEFITS UPDATE: AVIVA BEATS DEAD HORSE… TWICE!

In two recent decisions of the Licence Appeal Tribunal, released on consecutive days, Aviva mounted spirited attempts to broaden the scope of accident benefits claims under the Minor Injury Guideline or MIG. N.R. and Aviva, 2019 CanLII 51313, and the Reconsideration Decision in G.S. and Aviva, 2019 CanLII 51320, were both heard in writing before Vice-Chair Susan Mather released May 9 and 10, respectively. At issue in both was whether the claimant’s chronic pain was a minor injury under the MIG. Historically, Aviva had some success in demonstrating that the presence of chronic pain does not remove a claimant from the MIG unless there is evidence of functional impairment.

In N.R. and Aviva, the claimant, N.R. was involved in a car accident on October 12, 2016. Damage to the car was minimal, and her airbag did not deploy. Aviva, her auto insurer, determined that her treatment should be governed by the $3,500 limit under the MIG. When MIG funding was exhausted, Aviva denied subsequent treatment plans. The two parties were unable to settle their dispute, and a hearing before the LAT was held in writing.

N.R. argued that her psychological impairment and chronic pain were not “minor” injuries. The Vice-Chair was not convinced that she suffered non-MIG psychological impairment. The only evidence offered by N.R. was a “pre-screening” assessment based on her self-report of psychological issues. Aviva relied successfully upon a psychological Assessment by Dr. MacKay that found no evidence of psychological impairment warranting treatment.

Regarding her chronic pain, Aviva argued that N.R.’s complaints were “clinically associated sequelae” captured by the definition of “Minor Injury” in the MIG, and that Chronic Pain Syndrome was of a different order that these complaints. In support, Aviva presented the definition of Chronic Pain Syndrome from the AMA Guides -which are used to evaluate permanent impairment and determine potential Catastrophic Impairment. Since N.R. did not meet at least three of the six listed criteria under the AMA Guides definition, Aviva argued, her ongoing complaints fit within the MIG.

Vice-Chair Mather rejected this argument. She saw no reason to incorporate the AMA Guides definition into a consideration of the MIG. Instead, she relied upon a definition of chronic pain set out by Executive Chair Lamoreux in a Reconsideration decision from 2018 – which overturned a favourable Aviva decision, incidentally. Briefly, the Executive Chair found that chronic pain that continues after it should have healed was excluded from the context and purpose of the MIG.

Although N.R. did not have a formal Chronic Pain diagnosis, there was sufficient evidence of ongoing pain complaints, use of prescription painkillers, and reduced capacity at work with modified duties to conclude that she suffered from chronic pain. Therefore, Vice-Chair Mather held that the MIG did not apply, and ordered payment of several outstanding treatment plans with interest.

The next day, the Reconsideration hearing was released. From the original hearing of G.S. and Aviva, the claimant, G.S. was injured in a car accident on December 2, 2013. Following a hearing in writing on March 27, 2018, the adjudicator found that the MIG did not apply as a result of his ongoing chronic pain. Aviva sought a Reconsideration of the decision, claiming that the adjudicator had made errors in law and violated the rules of natural justice during the hearing. G.S. opposed the reconsideration, maintaining that there was neither a reviewable error nor violation of natural justice. Instead, Aviva was simply attempting to re-argue a correctly decided claim so it could continue to use the MIG against chronic pain claimants to avoid payment of benefits.

Aviva claimed, as above, that evidence of chronic pain is not enough in itself to justify the removal of a claimant from the MIG. Given the decision in N.R., it is not surprising that Vice-Chair Mather denied the Reconsideration request, finding no errors of law of breaches of procedural fairness that would justify overturning the decision.

Aviva argued that the failure by the adjudicator to address whether G.S.’s chronic pain was separate and distinct from the “clinically associated sequelae” of his minor injuries demonstrated an error of law. It relied upon T.S. and Aviva to support this position. The Vice-Chair noted that T.S. was a) not binding precedent, and b) overturned by Executive Chair Lamoreux on July 27, 2018. In that Reconsideration, the Executive Chair specifically observed that chronic pain does not qualify as a “Minor Injury” because it cannot be treated effectively under the 12-week MIG protocol. Therefore, Vice-Chair Mather dismissed Aviva’s request.

Insurers have tried aggressively to broaden the MIG category through a variety of arguments. However, since at least July 2018, insurers have had clear guidance from the LAT on the relationship between chronic pain and the MIG. Hopefully, this is the FINAL, final word on the issue.

If you have questions about your accident benefits claim, the Minor Injury Guideline, Catastrophic Impairment or related issues, contact the experts for a free consultation. Campisi LLP- “Clients First, Excellence Always!”