Apr 09, 2019 in News Blogs

Blogs: Chronic pain is not a minor injury, LAT chairwoman rules

Chronic pain is a common but misunderstood form of injury. It often materializes in the weeks and months following a traumatic accident and can be a heavy burden during recovery. In serious cases, chronic pain can be debilitating and can dramatically damage a person's quality of life. Despite this, it has been considered a minor injury under Ontario's Statutory Accident Benefits Schedule, a designation that some personal injury lawyers dispute. However, a recent "reconsideration decision" on a Licence Appeal Tribunal (LAT) ruling is likely to change how benefits disputes related to chronic pain are handled.

What is Chronic Pain?

Chronic pain can be broadly defined as pain lasting for a long period of time, generally more than 12 weeks. It most often appears following an injury: a car accident, a slip-and-fall, a surgical error, etc., and is often referred to as an "invisible" disability due to its difficulty to diagnose. Individuals suffering from chronic pain may not appear unwell and may not bear the hallmarks of a traumatic disability. Nonetheless, chronic pain can hinder a person's ability to work, to interact with friends and family, to be physically active, to engage in intimate relationships, and to generally enjoy a full, happy life. For this reason, many chronic pain patients and personal injury lawyers believe it is insufficient to label chronic pain as a "minor injury".

The Reconsideration Decision

In July 2018, Linda Lamoureux, executive chairwoman of Tribunals Ontario, reversed the LAT's decision in T.S. v. Aviva General Insurance of Canada. In the case, Aviva awarded T.S. $3,500 in benefits, the maximum available according to the Schedule's Minor Injury Guidelines, to cover medical treatment following a January 2015 accident. T.S. used the full amount and requested more, stating that he had developed chronic pain that could not be considered a minor injury. Aviva denied the request and the LAT agreed. T.S. applied for a reconsideration, according to Law Times. In her decision, Lamoureux wrote: "The Tribunal made significant errors when rendering its decision. The Tribunal did not adequately consider the context and purpose of the Schedule, and ultimately adopted a narrow interpretation of the relevant provision at issue. In doing so, the Tribunal failed to recognize T.S.'s chronic pain exceeds the Schedule's definition of a 'minor injury'." Lamoureux ordered Aviva to pay T.S. a further $9,863.45.

Good News for Injury Victims

Lamoureux's decision recognizes how chronic pain can impact a victim's life. For personal injury lawyers representing chronic pain victims, the ruling makes it possible to secure more reasonable compensation. "This will allow people who really need the treatment, who are experiencing chronic pain, to get more treatment that they need to help them with their recovery," one personal injury lawyer told Law Times.

Contact Neinstein Personal Injury Lawyers

If you or a member of your family is suffering from chronic pain as a result of an accident, contact Neinstein's team of experienced personal injury lawyers today to arrange a free, no-obligation consultation. Our team will assess the viability of your claim and offer advice as your travel the road to recovery.

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