Everyone experiences pain. When you get a paper cut, for example, it hurts, and this is a normal response from your nervous system, which alerts you to the injury so that you can tend to it. This typical experience of pain is called acute pain. In contrast, chronic pain is pain that persists despite there being no active underlying injury to take care of. Chronic pain can occur when pain continues after an injury has healed or a condition has been successfully treated, or it can occur with no apparent underlying cause whatsoever. Chronic pain can also occur alongside another health condition, such as cancer treatment or arthritis. There are also conditions categorized as chronic primary pain, such as fibromyalgia, where chronic pain is the sole symptom. Chronic pain is considered an “invisible” disability because a person struggling with it may otherwise appear completely healthy, and there are no tests that can prove a person has chronic pain. This makes chronic pain difficult to diagnose and treat. As such, a wide variety of treatments are available, such as over-the-counter and prescription pain killers including opioids, injections, antidepressants and even anti-seizure medications. It is estimated that nearly 8 million Canadians live with chronic pain.
From this description, one can gather that the term captures an array of conditions, and as such describes many different subjective experiences that can make life differ greatly for one person with chronic pain as compared to another. This presents barriers to getting help for chronic pain, in both the medical and legal context, as it is difficult for a chronic pain sufferer to prove that they suffer from chronic pain to an outside assessor, who may be concerned with distinguishing between those with a genuine medical condition and bad actors who are merely pretending to have chronic pain to receive some benefit.
The Supreme Court of Canada acknowledged the challenges that chronic pain sufferers face in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, ([2003] 2 S.C.R. 504, 2003 SCC 54). In writing for the majority allowing an appeal over the constitutionality of legislation excluding chronic pain sufferers from the regular workers’ compensation system, Justice Gontheir writes that:
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 under current medical techniques. Despite this 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. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
This was a landmark decision as it provided legitimacy to chronic pain as a condition and prevented the wholesale exclusion of chronic pain sufferers as a class from compensation schemes such as the one at issue in Nova Scotia. Unfortunately, nearly twenty years after this decision was penned, it is still the case that chronic pain sufferers face significant barriers to legal remedies.
Because chronic pain is so broadly defined, and captures such a large array of conditions, courts and administrative bodies in Ontario have developed disparate tests to assess chronic pain, which can be inaccurate.
One example is the Licence Appeal Tribunal (LAT). In their decision in MNM v. Aviva 17-007825, the LAT allowed an argument on behalf of counsel for Aviva who argued that the applicant’s claim should be evaluated against the American Medical Association’s Guides to the Evaluation of Permanent Impairments. This required that a patient meet at least three of the following six criteria in order to be diagnosed with chronic pain:
- Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
- Excessive dependence on health care providers, spouse or family;
- Secondary physical deconditioning due to disuse and/or fear – avoidance of physical activity due to pain;
- Withdrawal from social milieu, including work, recreation or other social contracts;
- Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;
- Development of psychosocial sequelae after the initial incident, including anxiety fear-avoidance, depression or nonorganic illness behaviours
The adjudicator at the LAT evaluated the applicant in light of these factors and determined that he was not a chronic pain sufferer. Instead of comparing competing medical evidence from both sides, the adjudicator applied the test himself, relying on evidence from the applicant himself that he, for example, did not withdraw socially, and came to the conclusion that he did not suffer chronic pain. Leave to appeal was denied in this case, and subsequent LAT decisions have endorsed applying the test (Hinds v. Travelers Insurance, 2022 ONLAT 20-009840/AABS, for example).
This decision is arguably an example of the differential treatment chronic pain sufferers face, as the LAT member in this instance felt empowered not only to make a medical assessment, but to actually select a diagnostic criteria to determine whether a claimant suffers from chronic pain. This is unfortunate, as there are several problems with the AMA criteria, as it relies on negative stereotypes that suggest that legitimate chronic pain suffers should be in a perpetual state of victimhood, withdrawing from social life and recreation, becoming fearful and anxious, and even developing substance abuse problems. In reality, chronic pain sufferers can live full and happy lives, yet still may be in great amounts of pain for which they should be entitled to compensation.
Despite this, chronic pain awareness is increasing, and there are resources out there for those suffering from the condition to receive care and compensation. Included below are some helpful links.
Helpful Resources:
