A recent Financial Services Commission of Ontario (FSCO) ruling may change the approach chronic pain lawyers take when attempting to secure accident benefits for their clients.
The Minor Injury Guidelines (MIG) of Ontario’s Statutory Accident Benefits Schedule (SABS) currently defines minor injuries as “sprain, strain, whiplash, associated disorder, contusion, abrasion, laceration, or subluxation [an incomplete or partial dislocation of a joint or organ].” It also includes “clinically associated sequelae,” or any conditions occurring as a consequence of such an injury, which is where chronic pain generally fits in. The MIG limits medical and rehabilitation benefits for these injuries to $3,500.
However, in Abyan v. Sovereign General Insurance Company, the plaintiff’s representative argued that the MIG breaches s. 15 of the Canadian Charter of Right and Freedoms by discriminating against individuals suffering from chronic pain. The FSCO arbitrator for the case, Benjamin Drory, agreed.
This ruling is remarkable in several ways. First, it may “open the floodgates to Charter challenges in accident benefit disputes,” wrote Michael McKiernan in a recent Law Times article.
Second, both Ontario’s attorney general and Sovereign General declined to take part in the proceeding, meaning the plaintiff’s argument went unchallenged.
“I can only assume they didn’t think the decision would end up where it did,” one Toronto lawyer who represents insurers told McKiernan. “It’s a very difficult one to take, because I think that if they had attended and made proper submissions, it would have changed the outcome entirely.”
Decisions made in individual FSCO sessions don’t have the same precedential impact as court rulings. Other FSCO arbitrators are not bound by Drory’s decision, and neither will it impact decisions in the Licence Appeal Tribunal, which took over ruling on accident benefits matters last year.
Still, the decision creates a roadmap for chronic pain lawyers eager to access benefits for their clients.
“I can’t imagine any MIG case involving chronic pain where I’m not going to be faced with a constitutional argument,” the lawyer, Alon Barda, said. “The limited precedential value doesn’t matter – I expect to see it raised every time.”
“It’s a very strong decision that should be very persuasive at FSCO and the LAT,” added Toronto lawyer Stephen Birman. “It’s going to be hard for any insurer to justify keeping chronic pain victims within the MIG, knowing that this decision is out there.”
Chronic pain is a deeply misunderstood affliction that has profound impacts on victims’ lives. Any steps the civil justice system takes towards improving access to benefits for chronic pain sufferers is likely to be supported by personal injury lawyers.
If you or a member of your family is suffering from chronic pain as a result of an accident, contact the chronic pain lawyers at Neinstein Personal Injury Lawyers to learn how we can help you on your road to recovery.
Image credit: SanDiego PersonalInjuryAttorney/Flickr
Greg Neinstein
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