Article

ABR Updater: Statutory Accident Benefits Schedule Discriminates Against Chronic Pain Victims And Violates Charter Rights

October 11, 2017

On September 14, 2017, FSCO Arbitrator Benjamin Drory declared that the Minor Injury Guideline (“MIG”) insofar as it applies to “chronic pain” victims of motor vehicle accidents is unconstitutional and in violation of section 15 of the Charter of Rights and Freedoms.

The decision rendered in Abyan v. Sovereign General Insurance Company is a landmark ruling that addresses the issue of discrimination in the Statutory Accident Benefits Schedule (SABS).

The MIG limits medical and rehabilitation amounts payable to accident victims suffering from so-called “minor injuries” to $3,500. Minor injuries are defined under the SABS to include,

Minor injuries are defined under the SABS to include, “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

An exception to the MIG applies where an insured person has a “pre-existing medical condition that was documented by a health care practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit.”

The applicant Abdirahman Abyan, a 51-year-old taxi driver, was injured in a motor vehicle accident on June 19, 2015. An x-ray taken on June 21, 2015, revealed degenerative disc disease in his cervical spine, which was not “documented” prior to the accident. He sustained soft tissue injuries and diffuse body pain. On June 8, 2017, the Applicant’s doctor reported that his injuries had not resolved within the expected time period and diagnosed him with chronic pain.

The insurer unhelpfully classified Mr. Abyan’s injuries within the MIG. Mr. Abyan argued that the MIG as it applies to chronic pain patients draws an arbitrary distinction that perpetuates historical disadvantage and breaches Section 15(1) of the Charter of Rights and Freedoms, which prohibits discrimination based on mental or physical disability.