Strategies for Chronic Pain and Emotional Injuries: Coping With the OMPP Threshold

By Richard Bogoroch

1. Introduction

Chronic pain cases are challenging, difficult and complex. They are fraught with great risk to both plaintiffs and defence counsel. A chronic pain case represents “a roll of the dice,” the outcome of which cannot be predicted with any degree of certainty. The objective of this paper is to assist plaintiff’s counsel in taking the “roll” out of the dice.

The Ontario Motorist Protection Plan, which came into effect June 22, 1990, and which hereinafter shall be referred to as the OMPP, has, as a result of the Court of Appeal’s decision in Meyer v Bright et al (hereinafter referred to as the “trilogy”), engendered a host of difficulties which require different strategic and tactical considerations. To provide perspective, I propose briefly to canvass strategies and tactics to employ in a chronic pain case arising from car accidents prior to June 22, 1990. (I use the paradigm of a car accident as opposed to a slip and fall or other mishap giving rise to personal injury since, in my experience, chronic pain following a car accident is more frequently encountered than from other traumatic events.)

I acknowledge with thanks the helpful comments of my associate, Ms. Franceen Rogovein.

2. Tactical Considerations in Handling the Chronic Pain Case: Pre-OMPP

a. Definition of Chronic Pain

What is chronic pain? Chronic pain, quite simply, is pain which has not abated. It frequently arises in cases where the injured victim sustained soft tissue injuries to the neck or back. The injuries do not improve over time and indeed over a period of time the victim is immobilized by constant pain and discomfort which renders him or her dysfunctional or which severely affects his or her health and general well being. Dr. David Corey in his article “Chronic Pain Syndrome: Identification and Management,” defines chronic pain as “pain persisting for more than six months from its onset¹.”

Chronic pain syndrome is indicative of a serious, vocational and psychological disability².

Corey defines chronic pain as follows³:

1. “The chief complaint is of severe and prolonged pain in excess of what could be expected on the basis of organic findings.
2. At least six of the factors listed below are exhibited:
   1. Diagnosis of a soft tissue injury;
   2. Multiple symptom complaints, e.g. headaches, fatigue;
   3. An unsuccessful attempt to return to work;
   4. Guarded movements or avoidance of many activities, e.g. an invalid-like lifestyle;
   5. Ingestion of multiple analgesics, tranquilizers, etc.;
   6. Frequent and multiple physician contacts;
   7. Development of family and marital problems;
   8. A reduction in or loss of libido;
   9. Diffuse anger, frustration and irritability;
   10. Anxiety and/or depressive symptoms;
   11. Sleep disturbance⁴.”

Chronic pain syndrome is not a psychiatric diagnosis, such as post-traumatic neurosis, compensational neurosis, psychogenic regional pain or functional overlay. It is a descriptive label for those who are vocationally and/or functionally disabled⁵.

Notes:

¹ Corey, David: Chronic Pain Syndrome: Identification and Management 1988 9 The Advocates' Quarterly, 223
² Ibid. p 224
³ Ibid.
⁴ Ibid.
⁵ Ibid. p. 225

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