If you are injured in a motor vehicle accident, the amount of injury compensation you are entitled to receive under your ‘no fault’ accident coverage depends on your level of injury. There are three categories of injury under statutory accident benefits (SABS):
- minor injury guidelines (MIG);
- non-catastrophic injuries;
- and catastrophic injuries.
Persons who are deemed to have suffered only a minor injury are entitled to the lowest amount of benefits, while accident victims with a catastrophic impairment are entitled to the highest maximum benefits.
An accident victim appealed their insurer’s decision with the Appeal Tribunal after the insurer denied payment of physiotherapy treatments and chronic pain assessments (in 18-000770 v. RSA Insurance (2019)). The insurer argued that the applicant’s injuries were primarily strains and sprains and fell within the definition of a ‘minor injury’ and therefore, the applicant is not eligible for the claimed benefits.
Under SABS s. 3(1), 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.” For persons who sustain a minor injury in a motor vehicle accident, the limit for medical/rehabilitation benefits under their vehicle insurance policy is $3,500. By contrast, a person who sustains the higher level of injury, non-catastrophic injury, is eligible to receive a maximum of $65,000 in medical, rehabilitation and attendant care expenses.
In the current case, the applicant submitted a claim for close to $7000 in physiotherapy treatments as well as $2,960.00 for a chronic pain assessment as recommended by the applicant’s physician in a treatment plan. And, the onus is on the applicant to convince the adjudicator that their injuries entitled them to benefits beyond the MIG.
The adjudicator assessed the medical evidence and found that there was proof, on a balance of probabilities, that the accident caused the applicant to suffer from chronic pain syndrome. Further, the adjudicator believed that the applicant’s injury is not minor and therefore, not subject to the $3,500 cap for treatment. The adjudicator also found that the applicant’s treatment plans are reasonable and necessary, and he is entitled to interest for overdue benefits.
Medical evidence for the accident victim’s chronic pain condition: 18-000770 v. RSA Insurance
The injured man had, for some time, consistently reported pain to his doctor and specialists and was diagnosed with chronic pain syndrome by a specialist, as determined by several physical and psychological tests. Based on range of motion tests and other physical assessments, his doctor found that lumbar flexion and left and right rotation tended to elicit the most pain and discomfort. The applicant’s doctor also assessed how much the chronic pain impacted the applicant’s daily activities, and found that his pain restricted his ability to perform household chores that involved bending or prolonged standing, and lower back pain made it difficult for him to perform cleaning, laundry, cooking, vacuuming and other tasks. Further, his doctor testified that the accident victim’s pain has continued long after the normal recovery time.
The adjudicator accepted the opinions of the applicant’s doctors over that of the insurance company’s doctor, a physiatrist, because the latter’s findings and recommendations were not consistent with the results of his own examination of the applicant and also, because the physiatrist did not consider all of the applicant’s prior medical assessments. The physiatrist admitted that the applicant continued to experience pain in his upper and lower back, neck and right thigh, and also noted motion limitations, and yet he concluded that the applicant’s pain was subjective and fell within the MIG. Also, the insurer’s physiatrist did not address the medical records from the applicant’s family physician in which the injured man consistently reported lower back pain, beginning with his first appointment 2 days after the accident and continuing for many later appointments.
The adjudicator also did not agree that the applicant’s chronic pain is a natural course of events arising from his injury (‘clinically associated sequelae’) since his pain persisted long after normal healing. Further, the applicant’s pain continued to cause sleep disturbances, psychological distress, cognitive problems, diminished work performance and a more sedentary lifestyle.
Persons who suffer from chronic pain as a result of an automobile accident are more likely to be denied no fault insurance benefits and discriminated against, than persons who sustain many other forms of physical injury. One of the most common arguments made by insurers is that the pain is a clinically associated sequelae or a normal part of the healing process after an injury and therefore, the person’s pain injury falls within the minor injury guidelines defined in SABS. However, when you are receiving regular care and treatment for a chronic pain condition and the pain has persisted long after your injury should have healed, then your pain condition exceeds a ‘clinically associated sequelae’. And, in such a case, you should be eligible to receive a higher level of statutory accident benefits beyond MIG.
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