Written By: Lindsay Charles and Brandon Pedersen, Student-at-Law
Is a formal diagnosis of ‘chronic pain’ necessary to escape the Minor Injury Guideline (“MIG”)? A recent LAT decision suggests no, provided there is medical evidence documenting persistent pain for greater than 3 to 6 months.
In C.G. v The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT), the applicant was involved in a motor vehicle accident in 2004 and then a subsequent accident in 2009. She suffered physical and psychological injuries as a result of these previous accidents and was deemed catastrophically impaired as a result of the 2004 accident.
The applicant was in a third automobile accident on February 20, 2015, when she was a passenger in a vehicle that was rear-ended. She sustained injuries to her back and right elbow and suffered post-accident headaches, as well as an exacerbation to her pre-existing injuries. As a result, she sought benefits pursuant to the Statutory Accident Benefits Schedule.
The applicant applied for medical benefits and was denied by the insurer because she was placed into the MIG. The applicant disagreed with the insurer’s decision and submitted an application to the LAT for dispute resolution.
MIG Determination
A minor injury, for the purposes of the MIG, means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, and any clinically associated sequelae. Someone with minor injuries only has access to a maximum of $3,500 for medical and rehabilitation benefits, whereas someone with more severe injuries has access to up to $50,000 in benefits.
Adjudicator Johal agreed with the reconsideration decisions in T.S. and Aviva Insurance Canada, 2018 CanLII 83520 (ON LAT) and the decision in P.L. and Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT), which found that chronic pain is not a minor injury and does not fall within the definition of the MIG. In P.L. and Aviva, Vice-Chair Trojek stated the following:
[12] I find that an actual diagnosis of CPS [chronic pain syndrome] is not required to remove an applicant from the MIG. My finding is based on the reconsideration decision of Executive Chair, Linda Lamoureux, in T.S. v. Aviva General Insurance Company. The Executive Chair in that decision found that chronic pain is by definition a condition that persists for three to six months, and that a diagnosis of CPS is not required to remove an applicant from the MIG.
In C.G., the clinical notes and records of the applicant’s family doctor showed a diagnosis of a right elbow contusion and back strain following the 2015 accident, and referenced ongoing right elbow pain for more than two and half years post-accident. However, the applicant never received a formal diagnosis of chronic pain. The insurer’s position was that the lack of a formal diagnosis should prevent the applicant from escaping the MIG.
Adjudicator Johal stated that “Chronic pain is a condition that persists for three to six months and a formal diagnosis of chronic pain is not required to remove an applicant from the MIG.” Adjudicator Johal found that the applicant escaped the MIG due to her chronic pain:
[34] In my view, the medical evidence establishes that she suffers from chronic pain. She has visited her family doctor and other medical practitioners with respect to her elbow pain as discussed above repeatedly since the subject accident. Furthermore, the applicant’s treating physician, Dr. Hadcock, notes in an OCF-3 dated November 5, 2017, which is more than two and a half years post-accident that the anticipated duration of pain will be more than 12 weeks “due to severity of injuries (sic) & current chronicity, poor prognosis for return to significant activities.
The applicant was found to be outside the definition of the MIG and entitled to treatment beyond the monetary limits of $3,500.
