Is Chronic Pain a Disability in Ontario?
There are three aspects to the question of chronic pain as a disability. The first is definition of chronic pain, the second is the qualification of chronic pain as causing a disability, and the third is the purpose for which the claimant is being defined as disabled.
What is the Definition of Chronic Pain?
The definition of “chronic pain” is a matter of medical opinion. One definition of chronic pain can be found in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th edition (“AMA Guides”). According to the AMA, for a person to have chronic pain, they must meet at least three of the following six conditions:
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 avoidance of physical activity due to pain or fear or 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 accident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.
Is Chronic Pain Defined as a Disability?
However, the diagnosis of chronic pain is not always sufficient to qualify an individual as disabled. Often, the essential test is not just that the person is diagnosed as having a chronic pain condition, but the claimant would also have to prove that the chronic pain is impairing a physical or psychological function. The test that really matters is the functional impairment test.
MVA Context
If the chronic pain is related to a motor vehicle accident, the claimant may be seeking to be defined as disabled for the purpose of the Statutory Accident Benefits Schedule (SABS). Within the SABS, chronic pain with a functional psychological or physical impairment may be used to allow the claimant to meet the definition of disability for the purposes of the Income Replacement Benefit (IRB). In the first two years after the accident, the claimant has to be completely disabled from performing the essential tasks of their own employment, in order to qualify. After 104 weeks post-accident, the claimant must demonstrate that they suffer a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience. Chronic pain may also allow the claimant to be removed from the Minor Injury Guideline. This would allow the claimant to access additional funding for treatment.
Disability Insurance
Private disability insurers often have similar criteria for a phased definition of disability. Usually, the first two years after becoming disabled, the definition of disability is the “own occupation” test, meaning the ability to complete the essential tasks of the job that the person was doing before experiencing the disability. At two years, the language of the test changes to the “any occupation” test, which is similar to the post-104 test above.
ODSP and CPPD
There are additional definitions that are used by the Ontario Disability Support Program (ODSP) and Canada Pension Plan Disability Benefit (CPPD), respectively the provincial and federal disability support programs. The specific definitions and criteria are similar, but not identical. The claimant’s medical records will be scrutinized to see if the claimant meets the wording of the test.
Conclusion
In some cases, chronic pain is treated as a disability in Ontario. The diagnosis is often not the deciding factor, but rather one of several criteria in the definition of disability. As the definition of disability is specific to each program and context, it can be helpful to have professional assistance in presenting your situation to the insurer or other body responsible for the decision.
Singer Kwinter has won the largest award in Canada for a chronic pain case. If you or someone you know is dealing with chronic pain as a result of an accident, contact us. We are here to help.
