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The License Appeal Tribunal (LAT) has released a number of decisions dealing with the application Minor Injury Guideline (MIG) to injured persons. In a recent decision, T.S. v. Aviva General Insurance (17-000835/AABS), Adjudicator Christopher Ferguson was tasked with determining whether a claimant's chronic pain syndrome removed him from the MIG.
The MIG applies to those persons who have suffered a "minor injury" in an accident defined in section 3(1) of the Statutory Accident Benefits Schedule as follows:
"minor injury" means 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
Although Aviva argued that the claimant did not suffer from chronic pain syndrome, Adjudicator Ferguson accepted that he did. The next task was to deal with what the diagnosis meant in terms of the MIG. Relying on the language of section 3(1) as well as the persuasive decision of BU v. Aviva, 2016 CanLII 96167 (ON LAT), wherein the Adjudicator held that the claimant must sufficiently show how the diagnosis of chronic pain is not sequelae to the minor injuries sustained, Adjudicator Ferguson decided that chronic pain syndrome is clinically associated sequelae to the soft tissue injuries sustained by the claimant and therefore does not remove him from the MIG.
The decisions out of the LAT seem to be fiercely holding claimants to their burden of proving entitlement to benefits outside of the MIG. The diagnosis of chronic pain in and of itself is not sufficient to automatically entitle claimants to non-MIG medical, rehabilitation and attendant care benefits. Without an expert report detailing how the chronic pain is not clinically associated sequelae, following this decision, it fair to say that chronic pain sufferers remain subject to the MIG limits.
The full decision can be found at 2017 CanLII 59495 (ON LAT).
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