Chronic Pain After Soft Tissue Injuries: Impacts of the New Simplified Rules on Disability Claims in OntarioJanuary 28, 2021
Chronic Pain After Soft Tissue Injuries
Typically, when a victim in an accident is diagnosed with myofascial, soft tissue injuries they are treated by their family doctor and referred to therapy. In most cases, patients respond well and return to work. However, a small percentage continue with chronic pain after soft tissue injuries including physical and psychological injuries. They continue to have limitations and do not return to work.
Soft tissue injuries are described as injuries to the muscles, tendons, and ligaments of the body. Patients with symptoms lasting over 6 months are being classified as chronic pain cases.
Whereas medical experts used to lump such cases into an unexplained catchphrase, courts and administrative boards in Canada have come to accept chronic pain as a separate diagnosis. According to the Supreme Court of Canada, the WSIB, and the CPP, rulings have accepted that chronic pain is a real diagnosis and is disabling.
Unfortunately, insurance companies do not always agree.
Patient’s claims to disability insurance are often denied. Claims are placed within the minor guidelines. Victims are left with a sense of hopelessness. No one believes their chronic pain after soft tissue injuries.
Insurance companies have been very successful in fighting chronic pain in the courts. They use juries to force plaintiffs into long, complicated litigation. The doctors who testify on their behalf are very conservative and will typically use phrases such as lack of objective diagnostic imaging to downplay chronic pain.
In short, the lack of disability in an x-ray or MRI makes the conclusion that the case is not real and the plaintiff is exaggerating for secondary gain. History in Ontario has shown that juries are often very skeptical and put chronic pain victims to a very high standard of proof. They do not fare well.
The Ontario Rules of Civil Procedure were amended effective January 1, 2020, to allow for cases up to $200,000 to be brought under a Simplified Procedure. There are significant advantages to plaintiffs, namely a prohibition on insurance lawyers serving jury notices. Trials are faster, shorter, and done by records and affidavits. Gone are the days of insurance lawyers taking up 2-3 weeks of court time for small cases. Judges have a greater understanding of the law and will focus on the merits of a case and not be distracted by the smoke and mirrors of a jury trial.
At Himelfarb Proszanski, we feel it is important to discuss with a potential client the benefits of proceeding under the Simplified Rules. Oftentimes, it will mean limiting potential recovery in exchange for the advantages of taking away the jury trial. It gives some comfort and peace of mind as to the prospects of recovery.
Our experience allows us to assess potential cases and work with the client and their doctors. Consistency and regular reporting are critical.
We also recommend the assistance of an occupational therapist to help document the history and progress of the chronic pain and how it affects the client at home and in their work.
Many lawyers do not accept chronic pain after soft tissue injuries cases because they are afraid of the risks associated. No doubt, insurance companies will fight most cases.
However, we at Himpro welcome these challenges and look forward to working with chronic pain clients. We will assist in obtaining disability benefits, treatments, and other social benefits such as Canada Pension disability benefits.
We will document the file and present a compelling, well-prepared case.
We will also take the insurance lawyers through a Simplified Rules trial with a judge and not a jury.
We are confident that the new Simplified Rules present a unique opportunity to present successful chronic pain cases.
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