When someone is injured in a motor vehicle collision, you are entitled to benefits through Ontario’s standard auto insurance policy benefits regardless of who is at fault. These benefits are defined by the Statutory Accident Benefits Schedule (SABS) under Ontario’s Insurance Act.

One of the sections of SABS deals with “complete inability ”, that is, when a person suffers a complete inability to engage in any employment for which that person is reasonably suited by education, training or experience. This series of blogs provides an update of case law with respect to the complete inability test under the SABS.

Chronic Pain, Real or Imagined? It’s a Matter of Rights and Freedoms.

Those who suffer from chronic pain will tell you that the pain is real and disabling. Chronic pain is persistent, it lasts over months, even years, and it affects sleep, work, relationships—in short, it alters your life.

Many healthcare experts, however, take issue with the idea that chronic pain syndrome is disabling. I continue to receive many reports suggesting that in the absence of objective organic pathology (a clear, biomedical reason for the pain), someone who claims chronic pain cannot claim a disability.

But there’s new hope for chronic pain sufferers. The discrimination against those suffering from chronic pain can now be considered a breach of the Canadian Charter of Rights.

Here is why.

In 2003, the Supreme Court of Canada rendered a decision that supports the kind of disability being experienced:

“There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite the lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.

(Martin v. Worker’s Compensation Board of Nova Scotia)

In making its decision, the Supreme Court of Canada went on to state:

Finally, the medical experts recognized that chronic pain syndrome is partially psychologically in nature resulting as it does from many factors both physical and mental. This Court has consistently recognized that persons with mental disabilities have suffered considerable historical disadvantage and stereotypes. …

Although medical evidence before us does point to early intervention and return to work as the most promising treatment for chronic pain, it also recognizes that in many cases, even this approach will fail.

It is an unfortunate reality that, despite the best available treatment, chronic pain frequently evolves into a permanent and debilitating condition.”

The above decision can be applied to accident benefit cases. In fact, when an Arbitrator reviewed the above case (Martin v. Nova Scotia), he summarized:

“The implications of the Supreme Court’s decision is that it is not morally appropriate or legally justifiable to stereotype individuals whose disabilities happen to be “less visible” than others. Even though pain is subjective, not directly perceivable by outside observers, or difficult to verify or quantify, it is nonetheless real.

No one in pain doubts this; and at some point in our lives most of us will come to learn this lesson”.

(Shubrook and Lombard General Insurance Company of Canada)

Thus, based on Martin v. Worker’s Compensation Board of Nova Scotia, it is a breach of the Charter of Rights and Freedoms to discriminate against those with chronic pain syndrome.

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