Is Chronic Pain Included Under the Minor Injury Guidelines? The answer to this question according the Reconsideration Decision in the case of 17-000835 v. Aviva General Insurance Canada is NO.
T.S. was injured in a motor vehicle accident on January 16, 2015 and sought funding from his insurer, Aviva General Insurance Canada (“Aviva”), for medical benefits in accordance with the Statutory Accident Benefit Schedule – Accidents on or after September 1, 2010 (“Schedule”).
After T.S. exhausted the $3,500.00 monetary limit available under the Minor Injury Guidelines, Aviva denied his claim for further treatment, arguing that chronic pain does not entitle him to additional benefits.
The Tribunal initially held that T.S. chronic pain is “sequelae” of the injuries enumerated in the definition of “minor injury” as defined by the Schedule and thus subject to the $3,500 monetary cap on medical and rehabilitation benefits.
T.S. applied for reconsideration of the Tribunal’s decision. The central issue in the reconsideration was whether the Tribunal misinterpreted the term “minor injury”, and more specifically, “clinically associated sequelae” as defined in the Schedule.
In the Reconsideration Decision, the Executive Chair found that the Tribunal made a number of errors in its original decision and failed to adequately consider the context and purpose of the Schedule. These errors included its finding that chronic pain fell into the definition of “clinically associated sequelae” and thus fell under the definition of a “minor injury”. In doing so the Tribunal failed to recognize that chronic pain exceeded the Schedule’s definition of a “minor injury”.
In the Reconsideration Decision, the Executive Chair noted that the term “clinically associated sequelae” is undefined in section 3 of the Schedule. The Executive Chair further noted that section 3 lays out a list of the physical injuries that are included in the definition and a plain reading of the definition reveals a glaring absence of any reference to “chronic pain” in the list enumerated in section 3. The Executive Chair further noted
“… the minor injury framework provides a treatment model for the early resolution of minor impairments – chronic pain by its very nature is not captured by the Schedule’s definition of minor injury and, in turn “clinically associated sequelae.”
Based on all of the above, the Executive Chair concluded that the applicant had met the burden on the balance of probabilities that his injuries fell outside the Minor Injury Guidelines framework, by virtue of his chronic pain. The Tribunal’s prior decision was cancelled.
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Associate – Personal Injury and Litigation Law Groups
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