By Mélia Muboyayi, Adin Chan and Amanda Yates
In the recent Licence Appeal Tribunal (“LAT”) decision, Bao Nguyen and Allstate Canada, the applicant sought entitlement to medical benefits in excess of $3,500.00 and an Income Replacement Benefit (“IRB”). The LAT found in the insurer’s favour and dismissed the application. At issue was a disagreement between the experts as to the appropriate diagnostic criteria for Chronic Pain Syndrome, which carries important implications in future cases concerning the application of the Minor Injury Guideline (MIG).
The applicant bears the burden of proving that their injuries should not be treated within the MIG. The Applicant argued that she suffered from Chronic Pain Syndrome as a result of the accident, which diagnosis ought to entitle her to benefits beyond the MIG limits. In support of her claim, the Applicant proffered a report under Section 25 of the SABS from Dr. Getahun, who concluded that she did have Chronic Pain Syndrome according to the test set out in the 4th Edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment, (AMA Guides).
According to the 4th Edition, a patient must meet two or more of eight criteria in order to be diagnosed with Chronic Pain Syndrome. Dr. Getahun was of the opinion that the applicant met the “sufficient duration” and “dysfunction” criteria, which justified a diagnosis of Chronic Pain Syndrome and thus grounds for an injury beyond the MIG.
It is also noteworthy that in his application of the test for chronic pain syndrome, Dr. Getahun opined that psychosocial sequelae were likely present. The Tribunal noted that Dr. Getahun, as an orthopaedic surgeon, was not qualified to give a psychological diagnosis.
The insurer argued that Dr. Getahun’s test is outdated, and ought not to be accepted by the LAT. The insurer submitted that the 6th Edition of the AMA Guides which was previously cited in MNM v Aviva Ins Co., 17-007825/AABS, sets out the current diagnostic criteria for Chronic Pain Syndrome. Unlike the 4th Edition, the 6th Edition presents six criteria for Chronic Pain Syndrome, out of which a patient must suffer from at least three symptoms to support the diagnosis. In other words, there are fewer possible criteria, and the patient must meet more of them. The diagnostic criteria under the 6th Edition are as follows:
- Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
- Excessive dependence on health care providers, spouse, or family;
- Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
- Withdrawal from social milieu, including work, recreation, or other social contracts;
- 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;
- Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviors.
The insurer’s expert had confirmed that the Applicant did not meet the diagnostic criteria under the 6th Edition.
Vice Chair Gregory Flude determined that the “use of the word chronic does nothing to change the underlying nature of the injuries”. The Vice Chair rejected the diagnosis made by Dr. Getahun under the 4th Edition, and accepted that the Applicant did not meet the test for Chronic Pain Syndrome under the 6th Edition of the AMA Guides. The Tribunal agreed that the Insurer had appropriately provided treatment within the MIG, and that there was no evidence of entitlement beyond that threshold.
Chronic Pain Syndrome is a frequent source of dispute between the insured and insurer, and having clear diagnostic criteria reduces ambiguity faced by both parties in the claims process. The LAT has endorsed the 6th Edition of the AMA Guides on a recurring basis as the source of the appropriate diagnostic criteria for Chronic Pain Syndrome. This case specifically rejects the use of the 4th edition definition of chronic pain. This is a positive step toward establishing reliable, predictable standards for all.