Accident benefits in Canada

ACCIDENT BENEFITS UPDATE: Proving Chronic Pain? – A Cautionary Tale

In S.K. v. Aviva Insurance Canada (2019 CanLII 126203) recent Reconsideration Hearing before the Licence Appeal Tribunal (LAT), the applicant S.K. argued that the LAT had erred in fact and at law by finding that her injuries were appropriately treated under the Minor Injury Guideline (MIG). As a result of this finding, her claims for outstanding treatment plans were also dismissed.

In the original decision, the tribunal held that the applicant had not proven on the balance of probabilities that she suffered from Chronic Pain Syndrome (CPS) as a result of a partial shoulder tear from her collision. The tribunal accorded little weight to the applicant’s expert report, submitted by Dr. West, although he was an Orthopedic Surgeon with 34 years of experience, including the authoring of numerous medico-legal reports. Dr. West had not been established as an expert in chronic pain, and his report did not demonstrate that the applicant suffered from CPS as a result of the collision.

The applicant argued that the tribunal erred in its finding that she did not suffer from CPS and, as a result, that her injuries fell within the MIG. Specifically, it erred by finding a lack of “any other evidence” supporting the CPS diagnosis, and by failing to accord appropriate weight to Dr. West’s opinion.

Adjudicator Lake upheld the decision and dismissed the applicant’s Reconsideration request. She found that there was no error in the tribunal’s refusal to recognize Dr. West as a chronic pain expert. The report did not provide any credentials demonstrating his expertise in chronic pain. No specific training or education was described in his CV. The fact that Dr. West was a practicing Orthopedic Surgeon did not automatically qualify him to comment authoritatively on CPS. Most tellingly, the West report did not provide any discussion, let alone an opinion, regarding CPS beyond noting in passing that the applicant’s shoulder injury had persisted, “far beyond the normal expected time of healing.”As the original claim was heard in writing, Dr. West was not examined as a witness, and no additional written argument or evidence was provided to the tribunal.

Adjudicator Lake also dismissed the applicant’s claim that the tribunal had erred by failing to identify or consider other evidence of her condition that would have changed the tribunal’s decision. The applicant argued that the clinical notes of her family physician, Dr. Bellaire contained evidence of her ongoing pain complaints that demonstrated on the balance of probabilities she suffered from CPS.

The adjudicator observed that, although Dr. Bellaire’s evidence was included in the applicant’s original written hearing submissions, they were not referenced in the portion of her submissions that addressed CPS. These notes were only used as evidence supporting the applicant’s partial left shoulder tear in support of her entitlement to a February 7, 2019 treatment plan for assistive devices. Dr. Bellaire’s notes were specifically not addressed under the heading “Clinical Diagnosis of CPS”- the only evidence provided by the applicant under this heading was the West report.

For the sake of completeness, Adjudicator Lake commented on the Bellaire notes. She found that the notes did not support the CPS claims advanced in the hearing. In fact, they detracted from the overall strength of the applicant’s position. The adjudicator noted that the only criteria pertaining to a CPS diagnosis had been provided by Aviva, which had referred to the six CP criteria listed in the AMA Guides (used to determine catastrophic impairment where three or more of the six are present). She found that the Bellaire notes did not describe ongoing impairment that met any of these criteria. For example, the applicant had returned to work full-time without accommodations, was resuming her recreational activities and was not taking prescription medication for ongoing pain.

Finally, Adjudicator Lake rejected the applicant’s argument that the ongoing pain from her unresolved partial shoulder tear was sufficient grounds in itself for a finding of CPS. In support, the applicant provided a LAT decision (G.S. v. Aviva General Insurance Company,2019 CanLII 51320) in which similar impairments had resulted in the applicant’s removal from the MIG. However, in that case, the diagnosis was provided in a report by a recognized Chronic Pain specialist. Based on this, the adjudicator found the GS case distinguishable.

As a result of these considerations, the applicant’s request was dismissed.

IMPACT: This decision highlights some of the challenges facing applicants under the new LAT accident benefits regime. The original hearing proceeded in writing, which limited the applicant’s ability to present her case compellingly. It also placed additional emphasis on the quality and presentation of the medical evidence. While the AMA Guides CP criteria are not required to prove CPS, they can be used (as was done here) to discredit an unsupported or inadequately supported claim. The much tighter timelines also impacted this result. If the applicant had time and resources to develop her claim properly, including commissioning a Chronic Pain report, the outcome could have been better.

If you have been seriously injured in a car accident, and have questions about this decision, the Minor Injury Guideline or your claim generally, we are pleased to offer a free consultation. Put Campisi LLP to work for you – Clients First, Excellence Alw