By Richard Bogoroch
June 18, 2007
Judicial Treatment of Pain-Associated Disorders
Cases involving pain-associated disorders, whether in the context of a tort action, accident benefits claim or long-term disability action, present difficult and unique challenges, not only because of the complexities of this medical condition but also because of the need to explain how an injury that can be assessed subjectively, and without objective medical evidence, can render an individual vocationally and/or functionally disabled.
Over the last decade, judicial decisions have evolved to recognize pain-associated disorders as disabilities. However, there are still judges and adjudicators that look at these types of disorders with skepticism.
In Swain v. Moore Estate3, the plaintiff suffered from extensive soft tissue injuries, chronic pain, post-traumatic stress, fibromyalgia, anxiety and depression as a result of a motor vehicle accident. After the accident, the plaintiff, despite numerous attempts was unable to continue working in the family business and had difficulty coping with her activities of daily living. Ultimately, Justice Patterson concluded that her injuries were catastrophic and that she was totally disabled. The plaintiff’s damages were assessed at $100,000.00.
In Jones v. Prudential Group Assurance Co. of England (Canada)4, Justice Cusinato commented upon the expert evidence presented and states that “Fibromyalgia is classified as a syndrome, because science has not yet perfected an objective diagnosis for the disease.”
In the FSCO decision, Quattrocchi v. State Farm5, Arbitrator Makepeace reviewed and highlighted some general principles that have emerged in chronic pain cases. She notes the following:
Where there is no objective evidence of impairment, or the objective evidence does not explain the degree of pain reported by the insured person, credibility is paramount. In considering the insured person’s credibility all circumstances must be considered, including the consistency of their complaints and apparent functional level;
In order to prove entitlement to weekly benefits, an insured must show that his/her disability resulted from the accident. The accident need not be the only cause, but must be a significant or material contributing factor. Therefore, even if the insured person’s own attitudes or inaction has delayed his/her recovery, he/she may still be entitled to benefits, if the accident remains the more significant factor;
It is not sufficient to dismiss a chronic pain case on the basis that returning to work would not harm the applicant.
3  O.J. No. 1628 (S.C.J.).
4  O.J. No. 2862 at para. 72 (S.C.J.).
5 (OIC A-006854), September 29, 1997.
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