V302 – Is Chronic Pain a Minor Injury?
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. The medical and rehabilitation benefit coverage limit for those who suffer minor injury due to motor vehicle accident is currently set at $3,500. We often see this amount quickly exhausted in the course of active accident benefits claims.
While many people who suffer minor injury do achieve good recovery, some do not. Ongoing pain, and resulting impairment, can pose significant barriers in terms of a person’s ability to return to activities including employment. In the absence of treatment, as often occurs after coverage has been exhausted, such chronic pain and impairment can be extraordinarily difficult to overcome.
When it’s appropriate, we strive to see our clients moved from the minor injury coverage category to the non-catastrophic coverage category. When this is achieved, we see our clients able to access up to $65,000 for their medical, rehabilitation and attendant care needs which then allows for continuation of care.
17-002624, M.H.E. and Aviva is a helpful LAT decision. It affirms past FSCO decisions in its finding that a chronic pain syndrome is not a minor injury. This decision also affirms that prolonged passive treatments can indeed be reasonable and necessary if such supportive care reduces pain and improves, or at least maintains, a person’s level of function.
In contrast, 17-003539, Applicant and Aviva directs that chronic pain in the absence of a psychological diagnosis is still a minor injury. The Adjudicator draws this conclusion given his interpretation of FSCO’s Arruda v Western decision (in which the minor injury limit was not applied to a chronic pain sufferer who had both chronic pain and Post-Traumatic Anxiety and Distress Disorder with depressive episodes).
The above decisions raise the question – what is chronic pain and how does it differ from chronic pain syndrome? While there is some variance in opinion, many recognize that chronic pain is pain which lasts longer than 6-months and that can become independent of the original illness or injury. Taken one step further, chronic pain syndrome is the combination of chronic pain and the secondary complications that are making the pain worse. Such secondary complications may include issues such as impact to sleep, finances, relationships, mood, function, etc.
Keeping the above in mind, we recognize that LAT Adjudicator Neilson did a nice job of reviewing chronic pain in relation to minor injury limits in her August 2017 decision of 16-000438, Y.X.Y and The Personal. While the case was decided in the insurer’s favour, this decision speaks to the secondary complications of chronic pain and is quite instructive in this regard. She states as follows:
I am not bound by FSCO decisions. However, I agree with the reasoning in Ali and Ferozuddin [and Certas] that, when chronic pain causes functional impairment and disability, it takes one out of the MIG [minor injury guideline]. I also agree with the reasoning in Arruda and Western Assurance Company that it is not ongoing pain alone that takes an applicant out of the MIG, but rather chronic pain syndrome. In both cases, the applicants’ pain affected their functional abilities to engage in, for example, their employment, housekeeping or caregiver activities. The point common to both decisions is that ongoing pain alone is insufficient to take one out of the MIG. Rather, that ongoing pain also must be accompanied by some functional impairment.
For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.
Unless an applicant provides evidence that the pain she experiences contains these elements, I find the pain is mere sequelae of the minor injury.
In considering the above decisions, we recognize the importance of having a medical and rehabilitation record that reflects not just the experience of pain but also the impacts of the pain upon the person. As Adjudicator Neilson has concluded, in the absence of such evidence, the pain will only be considered as sequelae of the minor injury and the minor injury limits will thus be maintained.