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Chronic Pain Regulations

made under Sections 184 and 184A of the
Workers’ Compensation Act
S.N.S. 1994, c. 10
O.I.C. 2004-299 (July 22, 2004, effective April 2, 2004), N.S. Reg. 187/2004

Citation
1 These regulations may be cited as the Chronic Pain Regulations.

Definitions
2 In these regulations:

(a) "Act" means the Workers’ Compensation Act;

(b) "AMA 5th Guides" means the American Medical Association Guides to the Evaluation of Permanent Impairment (5th Edition), as amended by these regulations or Board policy;

(c) "chronic pain" means pain

(i) continuing beyond the normal recovery time for the type of personal injury that precipitated, triggered or otherwise predated the pain; or

(ii) disproportionate to the type of personal injury that precipitated, triggered or otherwise predated the pain,

and includes chronic pain syndrome, fibromyalgia, myofascial pain syndrome, and all other like or related conditions, but does not include pain supported by significant, objective, physical findings at the site of the injury which indicate that the injury has not healed;

(d) "original compensable injury" means a personal injury by accident arising out of and in the course of employment

(i) that the Board has accepted or may accept as compensable under the Act, and

(ii) that pre-dates the commencement of the worker’s chronic pain;

(e) "pain-related impairment" means an impairment associated with chronic pain;

(f) "permanent-impairment benefit" means a benefit payable under Section 34 of the Act;

(g) "recalculated award" means the individual assessment and calculation of benefits a worker is entitled to under Section 12;

(h) "slight pain-related impairment" means a pain-related impairment that has, in the opinion of the Board, increased the impact of the worker’s original compensable injury mildly to moderately as described in Table 18-3 of Chapter 18 of the AMA 5th Guides;

(i) "substantial pain-related impairment" means a pain-related impairment that has, in the opinion of the Board, increased the impact of the worker’s original compensable injury moderate severely to severely as described in Table 18-3 of Chapter 18 of the AMA 5th Guides.

Inclusion of chronic pain in Part I of Act
3 Chronic pain that is causally connected to an original compensable injury is a class of personal injury that is hereby included in the operation of Part I of the Act under subsection 10(7) of the Act, subject to the terms and conditions set out in these regulations.

Eligibility under these regulations
4 A worker is entitled to an assessment to determine eligibility for benefits and services under these regulations if the medical evidence establishes that on or after April 17, 1985, the worker had chronic pain that was causally connected to an original compensable injury.

Individualized approach to determine entitlement
5 In determining whether a worker has a pain-related impairment, the Board must use an individualized approach based on the AMA 5th Guides, Chapter 18.

Requirement for existing permanent medical impairment waived
6 In applying Chapter 18 of the AMA 5th Guides, the Board must

(a) waive the requirement in the AMA 5th Guides for an existing permanent medical impairment as a prerequisite for an assessment of a pain-related impairment; and

(b) apply the slight pain-related impairment and substantial pain-related impairment percentages outlined in Section 7 to unratable pain as described in the AMA 5th Guides.

Permanent impairment rating
7 If a worker is found to have a pain-related impairment, the Board must pay the worker a permanent benefit based upon a permanent impairment rating of

(a) 3%, if the worker experiences a slight pain-related impairment; or

(b) 6%, if the worker experiences a substantial pain-related impairment.

Original compensable injury before March 23, 1990
8 If a worker’s original compensable injury occurred before March 23, 1990, and the worker is found to have a pain-related impairment,

(a) the worker’s permanent benefit will be calculated in accordance with Sections 226 and 227 of the Act; and

(b) the worker is not eligible to receive an extended earnings-replacement benefit.

Original compensable injury on or after March 23, 1990
9 If a worker’s original compensable injury occurred on or after March 23, 1990, and the worker is found to have a pain-related impairment,

(a) the worker’s permanent benefit will be calculated in accordance with Sections 34 to 48 of the Act; and

(b) the worker may be eligible to receive an extended earnings-replacement benefit.

Commencement of benefit payment after discontinuance or denial
10 Subject to Sections 34 to 48 and Section 229 of the Act, if a worker is eligible to receive a permanent benefit in accordance with these regulations, the Board will commence payment of the benefit from the date on which the Board determines the worker has a pain-related impairment.

Recalculated award
11 If a worker has been awarded benefits under Section 10E of the Act, the worker is entitled to an individual assessment and recalculation of benefits in accordance with these regulations.

If recalculated award greater than award under Section 10E of Act
12 Subject to Sections 34 to 48 of the Act, if a worker’s recalculated award results in a greater combined extended earnings-replacement benefit and permanent-impairment benefit than that awarded under Section 10E of the Act, the Board will pay the worker

(a) the recalculated award, from the date the Board determines the worker has a pain-related impairment until the date the benefits awarded under Section 10E of the Act commenced; and

(b) the difference between the recalculated award and the benefits awarded under Section 10E of the Act, from the date the worker’s benefits awarded under Section 10E of the Act commenced until the coming into force of these regulations; and

(c) effective the date these regulations come into force, the recalculated award.

If recalculated award less than award under Section 10E of Act
13 Subject to Sections 34 to 48 of the Act, if the worker’s recalculated award results in a lesser combined extended earnings-replacement benefit and permanent-impairment benefit than that awarded under Section 10E of the Act, the Board will pay the worker

(a) the recalculated award, from the date the Board determines the worker has a pain-related impairment until the date the benefits awarded under Section 10E of the Act commenced; and

(b) effective the date the worker’s benefits awarded under Section 10E of the Act commenced, the benefits awarded under Section 10E of the Act.

6-month time period waived
14 For the purpose of calculating benefits or services that a worker may be entitled to under these regulations only, the 6-month time period in Section 106 of the Act is waived.

Retroactive payments not income
15 Retroactive payments made under these regulations are not considered income for the purposes of Section 33 of the Workers’ Compensation General Regulations.