Colin MacDonald

“The issue of medical evidence in support of claims for chronic pain and/or chronic pain syndrome is one that frequently comes before the License Appeal Tribunal for disputes. Where an Applicant can prove a diagnosis of Chronic Pain Syndrome within the AMA Guides, or where they can prove a diagnosis of “chronic pain” with a corresponding impairment of their function, they will be removed from the Minor Injury Guideline. In the recent LAT Decision of Arifi v. Economical Insurance, Adjudicator Beauchesne clearly set out some important principles for medical evidence on these issues. With respect to the various factors for Chronic Pain Syndrome in the AMA Guides, the LAT held that relying “heavily” on prescription medication is not the same thing as “use of prescription drugs beyond the recommended duration” and does not constitute “abuse” of prescription medication. The LAT also confirmed that an Applicant’s self-reporting on things like withdrawal from social milieu are insufficient to satisfy that branch of the test, even if those self-reports are included in a treating physician’s records. The LAT held that reliance on the “injury list” portion of a Disability Certificate (OCF-3) is insufficient to demonstrate an injury outside the MIG unless those injuries are corroborated by other contemporaneous medical evidence. In this case, no such evidence was referred to. Lastly, the LAT made reference to a number of points where the Applicant’s written submissions and self-reports to treating physicians was inconsistent with the objective surveillance evidence obtained by the Respondent. These findings reiterate the importance of strategic investigations being conducted early on and throughout the life of a claim file. While it is certainly not the case that every surveillance report will contain a “smoking gun” so-to-speak, the potential value of evidence showing an Applicant engaging in much more functionally demanding activity than they reportedly are able to sustain is incalculable. This is true not just in the context of MIG disputes, but also in the context of CAT disputes, where impairment of function is often the determining factor between a CAT claim and a non-CAT claim. I recommend that anyone advancing arguments that an Applicant’s self-reporting to a family physician, in the absence of other supporting medical opinion evidence, is insufficient to establish a claim for chronic pain and/or a removal from the MIG on that basis.

For anyone who gets an argument from opposing counsel about deficient notice letters, check out this decision. Not only does it reiterate the well established principle that insurers are not doctors, and their notice letters do not need to be perfect. This decision also held that insurers do not need to “refer to specific pieces of evidence” in their denial letters.

The Applicant claimed to have a diagnosis of a concussion but the LAT agreed that the “?” next to the word concussion meant there was no diagnosis.