Chronic Pain and Sufficiency of Proof

Case Study of Grewal v. Echelon General Insurance Company[1]

The applicant, JG, was involved in a MVA on October 1, 2020 and sought accident benefits. The respondent insurer, Echelon, paid med-rehab benefits up to the $3,500 Minor Injury Guideline (“MIG”) limit but denied further benefits, taking the position that JG’s injuries were minor. JG applied to the License Appeal Tribunal (“LAT”) for resolution of the dispute.

The issues in this LAT proceeding were a) whether JG’s injuries were minor and b) whether JG was entitled to any of the disputed med-rehab benefits (for four physiotherapy treatment plans, one orthopedic assessment and one in-home assessment).

Soon after the accident, JG returned to normal work duties and was able to perform his regular daily activities. In approximately two and a half years since the accident, although he saw his family physician, Dr. BN, 16 times, the accident was only mentioned in three appointments. He reported complaints of pain to Dr. BN a couple of times. Dr. BN prescribed him a pain reliever and recommended massage, heat, exercise, a firm mattress and soft pillow and to attend a follow-up appointment within a week if symptoms did not improve, but JG never went to a follow-up appointment. Dr. BN diagnosed him with lumbar strain and cervical strain as well as muscle tenderness (minor injuries), but never with chronic pain. Dr. BN never undertook further investigation, such as referring JG to a neurologist or for diagnostic imaging. JG’s OCF-3 Disability Certificate, completed by a chiropractor, also gave as diagnoses strain and sprain. An IE report by Dr. W – written after an in-person assessment and thorough medical records review – diagnosed JG with cervical strain, thoracic strain, lumbar strain and low leg strain injuries.

An insured person who sustains impairments from a MVA that are predominantly minor injuries is currently limited to a maximum of $3,500 in med-rehab benefits.[2] A “minor injury” is defined as a 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.[3]

If it can be proven that the insured person’s injury falls outside the definition of a minor injury, they can be removed from the MIG limit. However, the burden of proof lies with the applicant. This means that, if an applicant is seeking this exemption, the onus is on the applicant to file evidence demonstrating on a balance of probabilities that their MVA-caused injury is nonminor.

Two types of conditions have been held by the LAT to be injuries outside of the MIG include a) chronic pain with a functional impairment and b) a psychological impairment.

Chronic pain is not the same thing as ongoing or recurrent pain. The American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. 2008 lists six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome, and the Tribunal has adopted the use of the AMA Guides as an interpretive tool for evaluating chronic pain claims:

1- the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2- excessive dependence on health care providers, spouse or family;

3- secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4- withdrawal from social milieu, including work, recreation or other social contracts;

5- a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

6- the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression or nonorganic illness behaviors.[4]

One of JG’s legal positions was that he suffered from chronic pain with a functional impairment, and that it is not captured by the definition of “minor injury”, and that therefore he qualified for med-rehab benefits beyond the $3,500 MIG limit.

The respondent, Echelon’s, legal position was that JG suffered a soft-tissue sprain or strain from the MVA, that sprain and strain are both clearly listed under the “minor injury” definition, and that therefore he does not qualify for treatment beyond the MIG.

The LAT Member hearing this case decided that the applicant had not discharged his onus of proving that his injuries were nonminor; consequently, he was not entitled to med-rehab benefits beyond $3,500 and thus to any of the disputed benefits (since the limit had already been exhausted). Reasons included the following.

1- JG’s use of a prescription drug for his pain symptoms was not significant

2- According to the evidence, JG was not excessively dependent on healthcare providers, his spouse or his family; on the contrary, he reported to his family doctor that he was fit for work, doing ok, sleeping ok and experiencing no difficulty walking.

3- There was no evidence of secondary physical deconditioning or avoidance of physical activity due to pain; on the contrary, he returned to normal work duties and was able to perform his regular daily activities (and reported such to Dr. BN).

4- There was little evidence of JG’s recreation or social contacts, but the LAT Member placed significant weight on his reports to Dr. BN that he was working and not functionally impaired post-accident.

5- Notwithstanding there were a few pain complaints, there was no evidence of a period of disability.

6- There was not enough evidence to support the applicant’s argument that he developed psychosocial sequelae after the accident; there was only one notation of anxiety in Dr. BN’s CNRs.

In conclusion, when comparing the medical evidence in the case with the six criteria in the AMA Guides, JG did not satisfy any of the criteria of chronic pain; and, since chronic pain is only indicated by the presence of at least three of the criteria, the LAT Member concluded he did not suffer from chronic pain.

In addition, the LAT Member noted that no medical practitioner diagnosed the applicant with chronic pain and that the CNRs did not mention chronic pain.

In this case, the applicant’s chronic pain argument failed because there was insufficient evidence to support it.

This case gives cues to what can amount to gaps in one’s chronic pain argument, such as the lack of a diagnosis of chronic pain syndrome by a qualified medical practitioner (i.e., a pain specialist) and insufficient medical records of reports of pain over time.

[1] 2023 CanLII 81826 (ON LAT). (https://canlii.ca/t/k01lw)

[2] Statutory Accident Benefits Schedule (“SABS”), O. Reg. 34/10, s. 18(1). (https://canlii.ca/t/55fz9)

[3] SABS, “minor injury”. (https://canlii.ca/t/55fz9)

[4] Russell v. Economical, 2022 CanLII 23417 (ON LAT), paras. 14-15. (https://canlii.ca/t/jnd96)