Making the Case for Chronic Pain at the LAT: MNM v. Aviva 17-007825

By Shannon R. Wood Aug 08, 2018

Claims of chronic pain have risen over the past few years and the insurance world, and AB providers specifically, are adapting to dealing with these claims.  One of the main challenges in assessing chronic pain claims is the lack of objective evidence. 

The License Appeal Tribunal (LAT) recently considered a claim for a chronic pain management program. Adjudicator Christopher Ferguson was charged to determine whether the Treatment Plan of the claimant, MNM, for a multi-disciplinary chronic pain treatment programme was reasonable and necessary pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABs”).[1]

Counsel for Aviva argued that the claimant’s claim of chronic pain should be assessed against the criteria from the American Medical Association Guides to the Evaluation to Permanent Impairment, 6th edition  (“AMA Guides”). The AMA Guides requires that at least three of the following six criteria are met in order to qualify for a diagnosis of chronic pain:

  1. 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. 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;
  6. Development of psychosocial sequelae after the initial incident, including anxiety fear-avoidance, depression, or nonorganic illness behaviours.[2]

Adjudicator Ferguson accepted the proposed criteria and made his decision in accordance with the AMA Guides. In the past, adjudicators merely reviewed the medical records, expert reports, and evidence of the claimants to determine if a claimant had chronic pain. [3]

The adjudicator took issue with the reports of the claimant’s experts which diagnosed chronic pain but failed to discuss why or how they came to that diagnosis or what criteria was used to come to such a conclusion.  Also of importance was the claimant’s own evidence that he had not withdrawn socially and was not significantly restricted in his social, occupational, or self-care activities. However, the adjudicator considered all of this evidence pursuant to the criteria of the AMA Guides.

The AMA Guides is a more rigorous and structured test than has been required to establish chronic pain in the past. It will be interesting if the AMA Guides, now referenced outside of the context of a CAT dispute at the LAT, will become the go-to test for determining if a claimant is suffering from chronic pain.

Shannon Wood is the author of this blog and member of the License Appeal Tribunal practice group. If you have a question about a dispute at the LAT, please contact Shannon


[1] 17-007825/AABS

[2] American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, .

[3] 17-000835 v Aviva General Insurance, 2017 CanLII 59495 (ON LAT), 16-001985 v Aviva Insurance Company of Canada, 2017 CanLII 22323 (ON LAT), 16-001997 v Aviva Insurance, 2017 CanLII 33668 (ON LAT)

 

 

 

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