Is Chronic Pain a Minor Injury?

Many people injured in car accidents continue to suffer varying degrees of pain and stiffness for years after the accident, and sometimes for the rest of their lives. According to the Minor Injury Regulations, your chronic pain will be considered a minor injury unless:

1. it has been diagnosed as chronic pain by a medical specialist appropriately trained in the diagnosis and treatment of pain disorders. (It is unclear if family doctors would qualify as such a medical specialist).

2. it is moderately severe or severe pain*, as classified in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition ("AMA Guides")

3. it is a direct result of injuries from the car accident.

4. It results in permanent serious impairment of an important bodily function.

So, if you have mild or moderate pain, as defined by the AMA Guides, then you have a minor injury. If you have moderately severe or severe pain, then you do not have a minor injury.

I have reproduced the AMA Guides pain categories and definitions so you will know the definitions of "moderately severe" and "severe pain":

Mild (this level of pain is considered a minor injury)

  • Pain severity based on combination of intensity and frequency is mild;
  • individual's pain is mildly aggravated by activities of daily living - person able to perform them with few modifications;
  • individual demonstrates no or only minimal emotional distress in response to his or her pain;
  • individual is not receiving treatment for pain on a regular basis;
  • pain-related limitations during physical examination are mild and appear appropriate: few pain behaviors are observed during the examination

Moderate  (this level of pain is considered a minor injury)

  • Pain severity based on combination of intensity and frequency is moderate;
  • individual has moderate difficulty managing activities of daily living; must make significant modifications in order to perform them;
  • Individual demonstrates mild to moderate affective distress in relation to his or her pain;
  • Individual requires ongoing medical monitoring and is taking medication much of the time;
  • Individual demonstrates significant pain-relatied limitations on physical examination; relatively few pain behaviors during the examination and they are of indeterminate appropriateness.

Moderately Severe (not a minor injury)

  • Pain is present most of the time and may reach an intensity of 9-10/10.
  • individual can perform activities of daily living only with substantial modifications; unable to perform may routine activities;
  • Individual demonstrates to severe affective distress in relation to his or her pain;
  • Individual receives medication to control pain on a maintenance basis;
  • On physical examination, individual demonstrates severe pain-related limitations that may make the examination difficult to perform and the results difficult to interpret; and,
  • a number of pain behaviors are observed during the examination and they appear to be congruent with organ dysfunction.

Severe (not a minor injury)

  • Pain is essentially continuous, with intensity reaching 9-10/10 at its worst;
  • Individual must either get help from others for many activities of daily living, or spend an inordinate amount of time accomplishing them;
  • Individual demonstrates severe affective distress in relation to his or her pain and communicates perception that pain is out of control;
  • Individual is receiving maximal pharmacologic support for his or her pain on an ongoing basis;
  • Physical examination is virtually impossible to perform because individual is intolerant of many examination maneuvers; a significant number of pain behaviors are observed during the examination and they appear to be congruent with organ dysfunction.

Many people in the legal community (including myself) believe that these chronic pain provisions of the Minor Injury Regulations are unconstitutional and will eventually be over-ruled and discarded by a judge.

The Minor Injury Regulations discriminate against people on the basis of the degree of their chronic pain - people with moderately severe and severe chronic pain get full compensation, but people with mild or moderate pain do not get full compensation - they only get $2,500. A few years ago, the Supreme Court of Canada ruled that similar provisions in the Nova Scotia Worker's Compensation system - which also discriminated between people on basis of the degree of their pain - were unconstitutional and contrary to the Canadian Charter of Rights. This case was Martin v. Workers Compensation Board of Nova Scotia.

I believe it is likely the Courts will follow Martin v. Workers Compensation Board of Nova Scotia and rule that the chronic pain portions the Minor Injury Regulations are unconstitutional and violate the Canadian Charter of Rights.