A Diagnosis of Chronic Pain is not on its own Sufficient to Take A Claimant out of The MIG by Evan Argentino

Aug 23, 2018

Chronic pain is an increasingly frequent basis upon which claimants seek to exit the MIG.  A recent FSCO Appeal decision by Director’s Delegate Maggy Murray found that it is an error of law to conclude that a claimant falls outside of the MIG solely on the basis of a chronic pain diagnosis.  The Arbitrator must conduct an analysis to determine whether the chronic pain flows from a MIG injury or a separate and distinct non-MIG injury.

In this case, a 15 year old claimant was involved in an accident on March 26, 2014.  An orthopaedic surgeon opined that the boys’ neck and back injuries were sprains and strains.  However, the doctor further opined that the boy developed chronic pain problems in the neck and back, thereby taking the claimant out of the MIG.  Arbitrator Deborah Anschell accepted the doctor’s evidence and analysis, and held that the chronic pain diagnosis removed the claimant from the MIG.

On appeal, Director’s Delegate Murray stated that the Arbitrator’s analysis was an error of law since she failed to apply the two step MIG determination test:

  1. The Arbitrator must first consider whether a claimant’s injuries are within the MIG, in that they are a sprain, strain, whiplash, contusion or abrasion.  If the injuries fall outside the MIG, the analysis ends at step 1.
  2. If the claimant’s injuries fall within the MIG, the Arbitrator must then consider whether any further injuries are a “clinically associated sequelae” of a claimant’s minor injury.  This means that if a claimant’s sequelae are associated with the claimant’s minor injuries found in step 1, then the sequelae will also fall within the MIG.

In this case, the Arbitrator failed to analyze whether the chronic pain sequelae was associated with the claimant’s neck and back issues.  The Arbitrator instead incorrectly assumed that a chronic pain diagnosis, on its own, automatically removes a claimant from the MIG.  Since the orthopaedic surgeon opined that the claimant’s chronic pain was associated with his neck and back injuries which were within the MIG, Director’s Delegate Murray went on to find that the claimant’s injuries fell within the MIG.

Going forward, we will of course continue to see chronic pain cases, however with Director’s Delegate Murray’s appeal decision, claimants need more than just a diagnosis of chronic pain.  They will have to prove that their chronic pain flows from injuries other than those that are found to be minor.  Chronic pain needs to be a stand alone impairment, rather than a clinically associated sequelae of a minor injury.  Otherwise their chronic pain will not take them out of the MIG.

Evan Argentino is an articling student at ZTGH and author of this blog. If you have a question about this blog or a similar file, please contact Evan or Eric Grossman

Add Comment