Claimants injured in a motor vehicle accident have access to benefits
under their own insurance (or through another driver’s insurance
policy, or the Motor Vehicle Accident Claims Fund) to help compensate
for losses such as, but not limited to, medical and rehabilitative
benefits, income replacement, lost educational expenses, attendant care
and damaged clothing or medical devices.
Before an accident
victim can pursue a tort claim and sue the negligent driver, they must
at least start (not conclude) an accident benefits claim for initial
treatment to mitigate their losses.
However, there are challenges
that claimants should consider with respect to ensuring they are fairly
treated by their insurers when processing their claim for benefits.
This article will briefly touch on the controversial and challenging topic of chronic pain injuries.
Disputes
often arise when insurance companies subject claimants to assessments
by medical practitioners hired by the insurers to determine if a
claimant meets the legal test to be eligible for benefits.
One of
the main points of contestation by insurance companies are whether or
not a claimant falls within the “Minor Injury Guideline” with respect to
medical and rehabilitation benefits. 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.”
This
is an important definition for injured claimants because how you are
classified may mean the difference between only $3,500 paid in
treatment, or up to $65,000 (or more) if the claimant is deemed to be
outside the minor injury guideline. For claimants who suffer from
chronic pain, their injuries may debilitate them from working or
carrying on their normal life and $3,500 may be insufficient for a
claimant to receive the treatment they need.
It is typical for
insurance companies to conclude that such pain falls under ‘clinically
associated sequelae’ to a minor injury.
An example of this scenario was addressed in the recent appeal of 17-000835 v. Aviva General Insurance Canada,
2018 CanLII 83520 (ON LAT) where it was determined that the Tribunal
made an error significant enough to warrant that its decision regarding
chronic pain injury as a “minor injury” be cancelled.
Executive
Chairwoman Linda P. Lamoureux was “persuaded that by narrowly
interpreting the definition of minor injury to mean that it includes
T.S.’s chronic pain, the Tribunal created an unjust or unacceptable
result of depriving much needed enhanced medical benefits to accident
victims most likely in greatest need, and that this is contrary both to
the intent and to the plain wording of the Schedule and the MIG.”
With
respect to the insurance company’s attempts to classify the injuries of
T.S. as minor, Executive Chairwoman Linda P. Lamoureux held that:
Aviva’s position is essentially that T.S. will have to live with his chronic pain without access to treatment beyond the MIG because the objectives of certainty around cost and payment for insurers dictate that “an insurer must look to initial injuries and diagnoses as indication of whether an insured’s injuries fall within the MIG”. Further, Aviva submits it would “directly defeat the said objective if an insurer has an obligation to wait the requisite number of months to determine whether a diagnosis of chronic pain was forthcoming.” I find that Aviva’s position is contrary to the very purpose of the legislature’s goal to provide timely access to medical treatment to improve recovery regardless of fault.
Motor vehicle accident victims who have suffered chronic pain
injuries are highly recommended to consult with a personal injury lawyer
who can assess the merits of the claim and determine an appropriate
course of action to maximize entitlement to accident benefits.
In
summary, insurance companies may continue to undermine chronic pain
injuries simply because it can be difficult to prove for many claimants.
Yet chronic pain injuries may fall outside the Minor Injury Guideline
and typically, in conjunction with medical evidence, the tribunal will
look at how a person’s life has changed following the accident and the
injuries sustained to assist in determining the claimant’s credibility
and whether there is evidence supporting a diagnosis of chronic pain.
Written by Kristoffer Diocampo / Insurance, Personal Injury / July 21, 2019