The Canadian Bar Association
Personal Injury

Chronic pain injury compensation

By Miles Obradovich

Is chronic pain recognized by the courts?

Unquestionably since 2003 chronic pain is a form of long-term disability entitled to injury compensation.

At that time the province of Nova Scotia excluded chronic pain from the purview of the regular workers’ compensation system. Instead of the benefits normally available to injured workers, it provided a four-week Functional Restoration Program beyond which no further benefits were available.

Chronic pain sufferers entitled to equal treatment under the law

The Supreme Court Of Canada examined whether this exclusion was legal in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 SCR 504, 2003 SCC 54 (CanLII). The court concluded that the Nova Scotia system imposed differential treatment upon injured workers suffering from chronic pain on the basis of the nature of their physical disability. This constituted an unjustified discrimination under s. 15 (1) of the Canadian Charter of Rights and Freedoms

The system was discriminatory. It did not correspond to the actual needs and circumstances of injured workers suffering from chronic pain. It deprived them of any individual assessment of their needs and circumstances. The injured claimants were only given uniform, limited benefits based on their presumed characteristics as a group. 

The system ignored the needs of workers who, despite treatment, remained permanently disabled. The court held that this denied the reality of the pain suffered by the affected workers. It reinforced widespread negative assumptions held by employers, compensation officials and some members of the medical profession. It demeaned the essential human dignity of chronic pain sufferers. 

Chronic pain is a real and difficult problem

Significantly the court had this to say about chronic pain:

Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event.  Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians. 

The observation that even physicians suspect malingering in chronic pain patients illustrates the obstacles that must be overcome to get injury compensation for chronic pain patients.

Injury settlements for chronic pain cases in Ontario

While the court’s decision in the Martin case concerned the Nova Scotia workers compensation system, its remarks are of equal weight in Ontario.

The decision recognizes that chronic pain may be precipitated by an accident. Of course this is not confined to employment related accidents. Auto accidents, slip or fall accidents and other types of accidents can result in chronic pain conditions. Damage awards for chronic pain injury caused in these accidents are recovered in civil lawsuits against the at fault parties.

Pursuing tort damages for chronic pain is one avenue for compensation. Another source of indemnity for income loss caused by chronic pain is long-term disability insurance benefits. Accessing these benefits is, in fact, a requirement if the injury arises from an auto accident.

What are the types of chronic pain?

Chronic pain can occur in any part of the body. Its scope is wide and deep. So much so that the International Association for the Study of Pain has prepared a taxonomy. The taxonomy classifies chronic pain syndromes and pain terms.

The main categories are: 

  • Relatively Generalized Syndromes
  • Relatively Localized Syndromes of the Head and Neck
  • Spinal Pain, Section 1: Spinal and Radicular Pain Syndromes
  • Spinal Pain, Section 2: Spinal and Radicular Pain Syndromes of the Cervical and Thoracic Regions
  • Local Syndromes of the Upper Limbs and Relatively Generalized Syndromes of the Upper and Lower Limbs
  • Visceral and Other Syndromes of the Trunk Apart from Spinal and Radicular Pain
  • Spinal Pain, Section 3: Spinal and Radicular Pain Syndromes of the Lumbar, Sacral, and Coccygeal Regions
  • Local Syndromes of the Lower Limbs

Details of the diagnoses falling into each of the categories are set out in the classification.

The taxonomy touches on a matter of interest to lawyers. The authors’ note the International Classification of Diseases does not provide a code for malingering. This is interpreted to mean that the final application of the label of malingering is a part of the judicial (legal) process and not a medical one. The role of the doctor is limited to drawing attention to discrepancies and inconsistencies in the history and clinical findings.

Personal injury accident induced chronic pain may arise from:

  • accelerated osteoarthritis
  • disk herniation
  • fracture of lumbar vertebrae
  • mechanical low back pain
  • muscular strains and strains
  • cervical radiculopathy
  • muscle tension headaches
  • temporomandibular joint dysfunction

How do I prove that I have chronic pain?

There is an important distinction between medical proof and legal proof. Medical proof generally speaking requires a scientific certainty. Legal proof proceeds on the basis of probabilities. The standard for legal proof becomes important when medicine is not able to provide a scientific answer. This distinction is important in chronic pain cases.

As the Supreme Court of Canada noted, one of the aspects of chronic pain is that its existence is not supported by objective findings at the site of the injury under current medical techniques. Pain is a very personal and subjective experience. There is no test that can measure and locate pain with precision. This lack of objective evidence is what propels many of these cases to a trial.

As a result, the main battleground at trial will be over the injured person’s credibility. The defence will organize its case around inconsistencies in the evidence.

Inconsistencies can be internal. These are inconsistencies found within the content of the plaintiff’s evidence. Often testimony will be contrasted with statements made to doctors.

External inconsistencies are those where the plaintiff’s evidence conflicts with the observations of other witnesses. At a personal injury trial this will often occur in the form of surveillance evidence. Investigators hired by the defence to record video evidence of the plaintiff are called as witnesses. The intent is to find the plaintiff engaged in an activity that is supposedly beyond his or her capabilities.

Lay witnesses are very important in a chronic pain case. Neighbours, friends and work colleagues are able to provide evidence about an injured person’s lifestyle and limitations. This supportive evidence can mitigate errors made in the plaintiff’s testimony. It also adds credence to the plaintiff’s credence.

There are some things a plaintiff can do to increase the validity of the chronic pain claim. These include: 

  • Avoid embellishing the degree of pain
  • Be factual not argumentative in giving evidence
  • Keep a contemporaneous diary to assist in memory recall
  • Engage in remedial treatment and rehabilitation
  • Do not disregard your physician’s recommendation’s about return to work trials without good reason
  • Call lay persons as witnesses to the trial to provide evidence of functional limitations
  • Use photographic evidence to illustrate lifestyle changes before and after the precipitating traumatic event
  • Call at least one doctor with chronic pain expertise as a witness at trial

What is the treatment for chronic pain?

Many hospitals in Ontario have chronic pain management programs. The benefit of these programs is that they provide a broad spectrum of treatment. Treatment sometimes occurs in a group setting. The comprehensive approach provides a more effective treatment than analgesia on its own. It increases the likelihood of rehabilitation. The goal is to increase a patient’s function and quality of life. A multi-disciplinary team provides different aspects of the patient’s treatment. We recommend our clients discuss referral to a chronic pain management program with their physician.

Specific treatments can include:

  • Systemic pharmacotherapy
  • Topical pharmacotherapy
  • Physical rehabilitation
  • Hydrotherapy
  • Cognitive behavioural therapy, group therapy and other forms of psychological therapy
  • Acupuncture
  • Injection of local anesthetic, corticosteroids or Botox
  • Neural stimulation
  • Addressing lifestyle issues

All treatment should be undertaken on the advice of health care professionals.

In April 2014 the Ministry of Health launched Project ECHO. This is an initiative to support primary care providers in the management of their complex chronic pain patients.

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