Accident Benefits and the Challenge of Chronic Pain

Claimants injured in a motor vehicle accident have access to benefits under their own insurance (or through another driver’s insurance policy, or the Motor Vehicle Accident Claims Fund) to help compensate for losses such as, but not limited to, medical and rehabilitative benefits, income replacement, lost educational expenses, attendant care and damaged clothing or medical devices.

Before an accident victim can pursue a tort claim and sue the negligent driver, they must at least start (not conclude) an accident benefits claim for initial treatment to mitigate their losses.

However, there are challenges that claimants should consider with respect to ensuring they are fairly treated by their insurers when processing their claim for benefits.

This article will briefly touch on the controversial and challenging topic of chronic pain injuries.

Disputes often arise when insurance companies subject claimants to assessments by medical practitioners hired by the insurers to determine if a claimant meets the legal test to be eligible for benefits.

One of the main points of contestation by insurance companies are whether or not a claimant falls within the “Minor Injury Guideline” with respect to medical and rehabilitation benefits. A “minor injury” is defined 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.

This is an important definition for injured claimants because how you are classified may mean the difference between only $3,500 paid in treatment, or up to $65,000 (or more) if the claimant is deemed to be outside the minor injury guideline. For claimants who suffer from chronic pain, their injuries may debilitate them from working or carrying on their normal life and $3,500 may be insufficient for a claimant to receive the treatment they need. 

It is typical for insurance companies to conclude that such pain falls under ‘clinically associated sequelae’ to a minor injury. 

An example of this scenario was addressed in the recent appeal of 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) where it was determined that the Tribunal made an error significant enough to warrant that its decision regarding chronic pain injury as a “minor injury” be cancelled. 

Executive Chairwoman Linda P. Lamoureux was “persuaded that by narrowly interpreting the definition of minor injury to mean that it includes T.S.’s chronic pain, the Tribunal created an unjust or unacceptable result of depriving much needed enhanced medical benefits to accident victims most likely in greatest need, and that this is contrary both to the intent and to the plain wording of the Schedule and the MIG.”

With respect to the insurance company’s attempts to classify the injuries of T.S. as minor, Executive Chairwoman Linda P. Lamoureux held that:

Aviva’s position is essentially that T.S. will have to live with his chronic pain without access to treatment beyond the MIG because the objectives of certainty around cost and payment for insurers dictate that “an insurer must look to initial injuries and diagnoses as indication of whether an insured’s injuries fall within the MIG”. Further, Aviva submits it would “directly defeat the said objective if an insurer has an obligation to wait the requisite number of months to determine whether a diagnosis of chronic pain was forthcoming.” I find that Aviva’s position is contrary to the very purpose of the legislature’s goal to provide timely access to medical treatment to improve recovery regardless of fault.

Motor vehicle accident victims who have suffered chronic pain injuries are highly recommended to consult with a personal injury lawyer who can assess the merits of the claim and determine an appropriate course of action to maximize entitlement to accident benefits.

In summary, insurance companies may continue to undermine chronic pain injuries simply because it can be difficult to prove for many claimants. Yet chronic pain injuries may fall outside the Minor Injury Guideline and typically, in conjunction with medical evidence, the tribunal will look at how a person’s life has changed following the accident and the injuries sustained to assist in determining the claimant’s credibility and whether there is evidence supporting a diagnosis of chronic pain.

Written by Kristoffer Diocampo / InsurancePersonal Injury / July 21, 2019
Thanks to the Ontario Trial Lawyers Association (OTLA) for this article

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