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  MIG Update – January 23, 2023

Formal Diagnosis of Chronic Pain Syndrome Not Required

In this week’s MIG case, Tribunal precedent factored into the determination that the applicant’s persistent complaint of ‘pain’ covering over 4 years was not “predominantly” a minor injury. Specifically, that a formal diagnosis of chronic pain syndrome from an expert is not required if the chronic pain exists beyond a period of 3 to 6 months.

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Factor: Formal Diagnosis of Chronic Pain Syndrome Not Required

In Zeledon v. Aviva (20-006269), was involved in an automobile accident on September 29, 2015, She claimed that she suffered from chronic neck and back pain and should not be subject to the MIG. Zeledon sought entitlement to chiropractic and physiotherapy treatment from September 2015 to February 2020.

In support of her claim Zeledon submitted various records from her treating chiropractor, family doctor and referrals to orthopedic and pain specialists. Further that pain, not resolving within the expected time of recovery for a minor injury, amounts to an impairment that is not predominantly minor, relying on the FSCO decision Arruda v. Western (A13-003926) and BU v. Aviva (16-000143).

Aviva relied on a physiatry IE report of Dr. F. Ismail November 2015 who opined Zeledon’s injuries could be treated within the MIG.

Aviva further submitted that Zeledon failed to evidence that her chronic pain resulted in a functional impairment as set out in 17-004847 v Aviva. Also that meeting the Chronic Pain Syndrome diagnostic criteria under the 6th edition of the AMA Guides is a requirement to be removed from the MIG.

The Tribunal found:

• Zeledon’s consistent reporting of low back pain for over 4 years that interfered with her ability to walk and work (resigned from her employment due to chronic pain) established sufficient functional impairment that her injury is not predominantly minor.
• Consistent with 17-002907 v. Aviva and CG v. The Guarantee Company of North America (17-007300), “that a formal diagnosis of Chronic Pain Syndrome is not required to remove an applicant from the MIG, provided that chronic pain is present beyond three to six months post-accident. This decision disposes of the respondent’s submission that a formal diagnosis of Chronic Pain Syndrome from a recognized expert is necessary for removal from the MIG.”
• Aviva provided “little evidence, past the three-to-six-month post-accident, to counter the Applicant’s self-reports of chronic pain and her family physician’s confirmation of neck and lower back pain continuing for more than four years.” Aviva’s only IE was conducted 5 weeks after the accident.
• That Zeledon’s injuries as a result of the accident reached a level of pain that she didn’t have before. She had multiple visits with treating physicians that established “a pattern of persistent intermittent back and neck pain.”

If you Have Read This Far…

Our MIG Monday series discusses the multitude of factors to consider when evaluating a risk position on MIG cases. The Tribunal has ruled on the MIG in 24% of the decisions so far. Each case is nuanced, but with similar factors.

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