By Cary N. Schneider, Partner, Beard Winter LLP
Beard Winter Defender, Vol. 12, Issue 3
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It is evident that the Licensing Appeal Tribunal (“LAT”) decisions place a high onus on a claimant to prove that the injuries take him/her outside of the Minor Injury Guidelines (“MIG”). Adjudicators are not accepting at face value assertions that a claimant has “chronic pain” unless this is supported by credible evidence. The dispute over whether a claimant (1) suffers a diagnosis of chronic pain and (2) whether chronic pain in itself is a condition that takes a claim outside of the MIG is subject to much litigation and inconsistent decisions. The inconsistency in the decision making is not necessarily surprising as the nature of chronic pain is highly subjective and difficult to evaluate the authenticity of the complaints. Whereas nearly all of the decisions for the first 1.5 years of the LAT’s inauguration were detrimental to claimants, we can see that the trend is now changing. The diagnosis of chronic pain appears to be gaining greater traction within the LAT and claimants have been able to prove that such injuries are outside of the MIG. An astute adjuster and advocate will evaluate the existing jurisprudence to determine what the case law has told us so far, and how we can use that to achieve the desired result for the future.
Chronic pain not proven or does not take claimant outside of MIG
In AP v. Aviva (2016) the claimant was complaining of soft tissue injuries and her family doctor diagnosed her with suffering from “evidence of cervical facet joint involvement which has been established as a common contributor to chronic pain symptoms…”. The claimant underwent cervical facet joint injections and obtained a supportive report from the family doctor. However, the family doctor never defined the term “cervical facet joint involvement” and the report was not entirely clear as to whether the claimant’s injuries should be taken outside of the MIG based on medical reasons. The claimant also argued that she suffered from chronic pain and therefore she should be taken outside of the MIG on account of prior case law.
The Adjudicator noted that the family doctor remarked that cervical facet joint involvement is a contributor to chronic pain but that there is no specific diagnosis in this case of chronic pain or chronic pain syndrome. The fact that the claimant was receiving injection therapy was not a persuasive factor to the Adjudicator.
The Adjudicator was referred to three prior FSCO / ADR decisions that supported the contention that a diagnosis of chronic pain syndrome takes the claimant outside of the MIG. The Adjudicator stated that these prior decisions were not binding on the LAT. Accordingly, even if these prior decisions were directly on point there was no requirement to follow the precedential decisions.
The decision in J.S. v. RBC Insurance Company (2017) illustrates the importance of challenging the credibility of the claimant by thoroughly reviewing the clinical notes and records of the treating doctors. In this case, the claimant relied on a section 25 report from a psychologist and a chronic pain specialist who both opined that the claimant has suffered from major depression, chronic pain, and possible post-concussive symptoms. The problem with their analysis is that they did not review the clinical notes and records of the treating doctors. The claimant assessors relied almost entirely on the self-reporting of the claimant which was inconsistent with the records of his treating doctors. The insurer examination reports were given more credence as they based their analysis both on a review of the records and on their meeting with the claimant. It was found that the claimant had suffered an injury that fell within the Minor Injury Guidelines and the total of eight treatment plans in dispute for a cost of about $11,500 was found to be not payable.
In B.U. v. Aviva (2016) the Adjudicator found that the claimant was outside of the MIG due to a psychological impairment. The Adjudicator categorized the injuries into two groups that being (1) physical injuries and (2) psychological ones. There was very little analysis regarding the interplay between physical and psychological injuries; which is often the heart of a chronic pain case. From a physical basis, the claimant obtained a report from a physiatrist that diagnosed her with suffering from chronic pain syndrome which thereby took her outside of the MIG. The Adjudicator, however, found that the claimant “had not sufficiently shown how the diagnosis of chronic pain syndrome is not a sequela of soft tissue injuries”. The Adjudicator found that from a physical basis that the claimant has not proven that her injuries were outside of the Minor Injury Guidelines.
This is an important finding for two reasons. First, it seems to contrast with a prior ADR decision of Arruda v. Western (2015) which found that a diagnosis of chronic pain syndrome is not captured by the Minor Injury Guidelines. Second, the analysis of chronic pain syndrome seems to focus on it being a manifestation of physical pain without a substantial interrelating psychological component. From a purely psychological basis, the Adjudicator found that there was overwhelming evidence to support the position that the claimant suffers from an impairment that takes her out of the MIG. The Adjudicator found that the physical treatment plans were not payable but that the psychological treatment was.
Chronic pain takes claimant outside of MIG
YXY v. The Personal (2017) provides a well-reasoned analysis regarding the interaction between chronic pain and the MIG. This decision seems to input a new consideration as to the factors to be considered relating to chronic pain as there is a focus on the level of impairment suffered by the claimant and not just the nature of the injuries. Unlike some prior decisions, the Adjudicator agreed with prior FSCO / ADR decisions that when chronic pain causes a functional impairment or disability that it is significant enough to take the claimant outside of the MIG. The Adjudicator agreed with the reasoning in Arruda that ongoing pain alone is not sufficient to take a claimant outside of the MIG, but that a legitimate diagnosis of chronic pain syndrome would take a claimant outside of the MIG.
For chronic pain to be considered more than simply sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be: (1) chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and (2) it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. Some essential factors to consider is whether chronic pain affects a claimant’s functional abilities to engage in employment, housekeeping or caregiver activities. 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 claimant’s burden to show that chronic pain is more than mere sequelae. Unless a claimant provides evidence that the pain she experiences contains these elements, the pain is mere sequelae of a MIG injury.
Some key takeaways from this decision are that if chronic pain prevents a claimant from performing functional activities such as working or housekeeping that this a consideration that would potentially take a claimant outside of the MIG. Unless a claimant provides evidence that the pain she experiences contains these elements, the pain is mere sequelae of the minor injury and the MIG applies.
In PJ v. Continental (2017) the Adjudicator took into consideration the change in type and frequency in medication as an important factor to consider whether the claimant suffered injuries that took him outside of the MIG. Prior to the accident, the claimant suffered from osteoarthritis, obesity, diabetes, abdominal pain, high blood pressure, and back pain. He obtained an orthopaedic surgeon report that diagnosed chronic pain and aggravation of pre-accident knee pain. The claimant was treating his injuries with cortisone injections (before and after loss – increased post MVA), massage, physiotherapy, prescription medication, and was seeking psychological treatment to fight depression/anxiety. The Adjudicator found that the increase in pain and injections/prescription medication post-loss supports that the claimant is not able to recover under the MIG treatment limits.
The Adjudicator accepted the evidence of claimant assessors that he suffered from chronic pain and that the IE assessors did not adequately explain why the injuries have not resolved. As such, the Adjudicator placed a positive obligation on the IE assessor to provide an alternative explanation for the claimant’s condition. The Adjudicator found that “the applicant has chronic pain and her injuries cannot be treated under the MIG”. This was an important decision that seems to accept that a diagnosis of chronic pain takes a claimant outside of the MIG and provides examples of considerations used by the Adjudicator to come to that decision.
The decision MHE v. Aviva (2018) further supports the position that a diagnosis of chronic pain takes a claimant outside of MIG. The claimant asserted that she was still having pain 18 months post-loss and had supportive reports that diagnosed her with suffering from chronic pain. The Adjudicator found that the claimant presented as a credible witness during the oral hearing and accepted the law emanating from FSCO/LAT that accepts that chronic pain is a condition that may take the claimant outside of the MIG. The Adjudicator found that “based on the duration of the time the applicant has experienced limitations in her ADL from ongoing pain, the medically uncontroverted diagnosis of Dr. P.N. and the expert report of Dr. C, I am satisfied that her chronic pain is of a nature to take her out of the guideline”.
This is an important decision as the claimant did not have any psychological diagnosis or objective injuries to support the diagnosis of chronic pain. The case was advanced solely on the basis of subjective musculoskeletal injuries and it was found that such complaints were enough to take the claimant outside of the MIG. It is suspected that the claimant’s credible oral presentation was a factor that weighed heavily in the Adjudicator’s decision-making process.
There continues to be a live question in the decision-making process at the LAT as to whether chronic pain is simply sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule that falls within the MIG or something more substantial. There is no consistency in the decisions that can be used as a definitive guide to answer this question. This is perhaps understandable as chronic pain is difficult to evaluate and is historically subjective in nature. The inconsistent reasoning of the Adjudicators seems to reflect the challenges in evaluating chronic pain from a medical-legal basis.
Some Adjudicators have recognized the legal support for chronic pain in past FSCO decisions and some have exercised their prerogative to not be so influenced. The use of injection therapy was considered an important consideration in P.J. v. Continental and a non-factor in AP v. Aviva. In YXY v. The Personal the adjudicator created a test for the severity of chronic pain that impacted the determination as to whether the claimant’s injuries fall within the MIG. It is not clear if this rationale will be followed by Adjudicators into the future or will be an outlier.
The credibility of the claimant still appears to be a significant consideration. In J.S. v. RBC Insurance Company, the claimant’s credibility was rattled by the fact that his clinical notes and records were inconsistent with his self-reported problems to his assessors. In MHE v. Aviva the Adjudicator was influenced by the fact that the claimant presented as a credible witness at the hearing despite the lack of any evidence to support that there was a diagnosable psychological component to his chronic pain.
There is no definitive chart to follow that will guide us to determine when chronic pain is legitimate and when it is significant enough to take a claimant outside of the MIG. However, a good analysis of the existing case law will provide an informed party with the tools to evaluate a case and advocate on one’s behalf.