Chronic pain is not a minor injury, tribunal says

The Licence Appeal Tribunal of Ontario has ruled that chronic pain should not be considered a minor injury under the Minor Injury Guidelines.

Chronic pain is not a minor injury, tribunal says
Sylvia Guirguis says injured people already face hurdles to accessing the treatment they need.

The Licence Appeal Tribunal of Ontario has ruled that chronic pain should not be considered a minor injury under the Minor Injury Guidelines.

In a July 27, 2018 reconsideration decision in the case of T.S. v. Aviva General Insurance of Canada, executive chairwoman Linda P. Lamoureux rejected the tribunal’s earlier decision to deny benefits to T.S. that would help treat his chronic pain.

“The Tribunal made significant errors when rendering its decision,” Lamoureux wrote. “The Tribunal did not adequately consider the context and purpose of the Schedule, and ultimately adopted a narrow interpretation of the relevant provision at issue. In doing so, the Tribunal failed to recognize T.S.’s chronic pain exceeds the Schedule’s definition of a ‘minor injury.’”

The decision says T.S. was injured in an automobile accident on Jan. 16, 2015. He applied to his insurance company, Aviva, to cover the costs of his medical treatment.

He was given $3,500, the maximum amount of benefits allowed in the Minor Injury Guidelines, which provides guidance about how to administer benefits under the Statutory Accident Benefits Schedule.

After T.S. used the $3,500, the reconsideration decision says Aviva denied his request for more money. T.S. asked the Licence Appeal Tribunal to consider the case, and told the tribunal that the chronic pain he had developed since the accident was not a minor injury and that this made him eligible for more coverage.

The Tribunal, while recognizing T.S. had been diagnosed with chronic pain, agreed with Aviva. T.S. then applied for the decision to be reconsidered.

The introduction to the Minor Injury Guidelines says that it and the Statutory Accident Benefits Schedule “are intended to promote the broadest use of this Guideline, recognizing that most persons injured in car accidents in Ontario sustain minor injuries for which the goods and services provided under this Guideline are appropriate.”

It defines minor injuries as sprains, strains, whiplash, contusion, abrasion, laceration, sublaxation and “any clinically associated sequelae.” It further clarifies sprains, strains, sublaxation and whiplash. People whose injuries are considered minor can receive 12 weeks of treatment, the guidelines say.

Lamoureux found T.S.’s chronic pain should not be considered a minor injury and ordered the company to pay $9,863.45 in benefits.

Alim Ramji, who practises with Kalsi & Associates Injury Lawyers in Brampton, Ont. and represented T.S., called it a “significant” decision.

“There are a lot of plaintiffs that suffer from chronic pain,” he says. “Insurance companies tend to put those clients under the minor injury guideline, even with the pain lasting longer than three to six months.

“This will allow people who really need the treatment, who are experiencing chronic pain, to get more treatment that they need to help them with their recovery,” Ramji says.

In an email to Law Times, a spokesperson for Aviva declined to comment for this article.

According to the decision, the company said granting additional funds to T.S. would go against the purpose of the Minor Injury Guidelines to give insurers and health professionals certainty around costs. The decision says that, nearly two years after the accident, the insurance company received confirmation from a doctor that T.S. had been diagnosed with chronic pain. Despite this, the company said allowing T.S. additional coverage would create uncertainty about costs.

Lamoureux disagreed, noting that there are several purposes for the Minor Injury Guidelines, including helping people who have been injured in vehicle accidents access rehabilitation quickly.

By not ordering the company to increase benefits to T.S., “the Tribunal created unnecessary barriers to treatment that were not intended by the legislature,” the reconsideration decision says.

Injured people already face hurdles to accessing the treatment they need, says Sylvia Guirguis, a personal injury lawyer at Campisi Law in Vaughan, Ont., who called the reconsideration decision a “relief.”

“The injured party is dealing with disabilities as it is,” she says. “They’re trying to move forward with their lives. They’re trying to get treatment. It’s difficult to get treatment when you only have $3,500 allocated toward your rehabilitation.”

The reconsideration decision “made things really clear, not just for chronic pain, but for anything that can be a minor injury.”

Ramji says the decision is particularly useful because Aviva did not challenge the result.

“It’s at the highest level in the sense that it wasn’t challenged to the divisional court, so this decision stands,” he says.

Tripta Sood, an associate at Zarek Taylor Grossman Hanrahan LLP in Toronto, says the decision doesn’t surprise her.

“People have been arguing that they’re outside of the Minor Injury Guidelines on the basis of chronic pain really since the Minor Injury Guidelines started, and some of them are found to be outside the Minor Injury Guidelines,” says Sood, who acts for insurance companies.

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