Statutory Accident Benefits are available for those injured as a result of the use or operation of a motor vehicle. They are available regardless of fault.
There are three tiers of benefits available:
- The Minor Injury Guideline (the "MIG"), which allows for up to $3,500.00 of Medical and Rehabilitation benefits;
- Non-Catastrophic, which typically allows for up to $65,000.00 of Medical and Rehabilitation benefits and Attendant Care; and,
- Catastrophic, which typically allows for up to $1,000,000.00 of Medical and Rehabilitation benefits and Attendant care.
The MIG includes sprains, strains, contusions, abrasions, lacerations, subluxations, and whiplash associated disorders.
Unfortunately, for many who are injured in motor vehicle accidents, the funding limits of the MIG do not go far. Accordingly, the issue as to what allows for transition out of the MIG in a claim for statutory accident benefits is a common concern among accident victims and personal injury lawyers.
An accident victim may be transitioned out of the MIG and have access to additional funding for necessary treatment and care in certain cases where he or she has been diagnosed with chronic pain. As a result, assertions or diagnoses of chronic pain have been frequently considered by the Licence Appeal Tribunal in the context of removal from the MIG. Below, I will summarize two of many recent decisions.
SA and Intact1 involved a dispute regarding the Applicant's placement in the MIG. In that decision, the Adjudicator emphasized that in order to be successful in accessing non-catastrophic funding, the following will be necessary:
- That the medical documentation refer to chronic pain over time, rather than in isolated instances;
- That evidence is provided of the severity of the pain; and,
- That functional limitations or impairments caused as a result of the pain are identified in the medical documentation.
The Adjudicator in RJ and Pembridge2 similarly held that for chronic pain to justify removal of an applicant from the MIG, he or she must prove on a balance of probabilities that the chronic pain is more than just a symptom arising from minor injuries. He further emphasized the need for evidence of functional limitation arising from the pain.
In summary, the burden rests with the injured person to prove that his or her accident-related impairments warrant access to treatment and rehabilitation funding outside the stringent confines of the MIG. A general assertion or diagnosis of chronic pain without additional evidence, will often be insufficient.
The case law gives us guidance as to what is required to gain access to funding outside the limits of the MIG in chronic pain cases, as follows:
- A diagnosis of chronic pain from a health care provider with authority to make such a diagnosis. In other words, mere assertion that pain is chronic due to its ongoing duration is not sufficient.
- Consistent attendance with health care providers regarding the chronic pain and an ongoing record of treatment from the date of the accident.
- Demonstrated limitation in functional abilities as a result of chronic pain.
If you have been diagnosed with chronic pain as a result of a car accident and you remain in the MIG, a personal injury lawyer may be able to assist in gaining access to additional benefits.
Footnotes
1 2020 CanLII 57372
2 2020 CanLII 80289
Originally Published by Siskinds, November 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.