Citation: Bernard v. Intact Insurance Company, 2024 ONLAT 22-004709/AABS

Licence Appeal Tribunal File Number: 22-004709/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Colbert Bernard

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Vanessa Liang, Paralegal

For the Respondent:

Carman Lee, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Colbert Bernard (the “applicant”) was involved in an automobile accident on January 2, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to physiotherapy and chiropractic services in the amount of $3,086.72, proposed by Aleximuir Wellness Centre in a treatment plan (the “OCF-18”) dated April 27, 2021?

iii. Is the applicant entitled to physiotherapy services in the amount of $2,456.20, proposed by Alexmuir Wellness in an OCF-18 dated September 15, 2021?

iv. Is the applicant entitled to physiotherapy services in the amount of $3,435.92, proposed by Alexmuir Wellness in an OCF-18 dated January 8, 2020?

v. Is the applicant entitled to $57.16 for prescription medication, submitted on a claim form (the “OCF-6) dated January 20, 2021?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18s or OCF-6. No interest is payable.

PROCEDURAL ISSUES

The applicant challenges the constitutional compliance of the Schedule

4I find the applicant’s submissions on the Schedule’s violation of the Canadian Charter of Rights and Freedoms ) (the “Charter”) do not comply with Rule 11 of the 2017 Common Rules of Practice and Procedure for the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (the “Rules”).

5The applicant’s submissions contend that section 18(1) of the Schedule is discriminatory and unconstitutional as it violates section 15(1) of the Charter. The respondent argues that the applicant failed to comply with Rule 11, which requires the applicant to serve notice of a constitutional question—at least 15 days before the question is to be argued—on the Attorney General of Canada, the Attorney General of Ontario, and all other parties.

6I agree with the respondent. The applicant was obligated to deliver a Notice of Constitutional Question form at least 15 days prior to the hearing because he is questioning the constitutional validity of the Schedule, which is an Act of the Legislative Assembly of Ontario. I find the applicant’s submissions do not point to evidence of this being done as required by the Rules. Further, the applicant’s submissions do not provide a rationale for his position on the constitutional question.

7In any event, section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that the Tribunal is barred from determining a constitutional question or granting a constitutional remedy where proper notice of the constitutional question has not been given to the Attorneys General. In my view, the applicant has not put his constitutional question properly before the Tribunal, and I therefore decline to address it as part of this matter.

ANALYSIS

The applicant has not demonstrated he should be removed from the MIG

8I am not convinced the applicant has met his onus to show removal from the MIG is warranted.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if he is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10For this matter, the applicant says he should be removed from the MIG because of psychological impairment and chronic pain. The Tribunal has consistently held that for chronic pain to be found to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. In this case, neither party is arguing the applicant has been diagnosed with chronic pain syndrome, so the dispute is more narrowly focused on chronic pain with functional impairment.

Psychological impairment

11I find the applicant has not demonstrated he sustained an accident-related psychological impairment.

12The applicant submits he sustained serious psychological injuries as a result of the accident (i.e., depression). The applicant relies on the clinical notes and records of Dr. Abounaja (family physician), a psychological status report by Farzaneh Pariman (psychologist), and the three disputed OCF-18s completed by Aanchal Nanchahal (physiotherapist), Branko Milen (chiropractor), and Ginni Bajaj (physiotherapist).

13The respondent argues that the medical records in evidence do not substantiate serious psychological injuries, and adds that no formal psychological diagnosis has been made in the medical documentation before the Tribunal. The respondent also submits that the applicant did not make any complaints or voice concerns of psychological difficulties to Dr. Abounaja, or any other healthcare provider, for three and a half years after the accident.

14I agree with the respondent. I find the medical records in evidence do not substantiate the applicant’s July 2023 report to Dr. Abounaja of being depressed since the accident. While the applicant’s reply submissions reiterate a prescription for Nortriptyline started by Dr. Abounaja in October 2020 as evidence of post-accident depression, I am not convinced of this because I was not pointed to evidence that confirms this medication was, in fact, prescribed to treat depression. In addition, I was not pointed to evidence of the applicant experiencing psychological symptomology prior to July 2023, which I find further reduces the likelihood that Dr. Abounaja was treating the applicant for depression as early as October 2020.

15I placed little weight on the psychological status evaluation report completed by Ms. Pariman on August 14, 2023. I was not pointed to evidence that convinces me the applicant’s self-reports were corroborated by a medical file review or psychometric testing. While I agree with the applicant that a mental health diagnosis is not required to show psychological impairment, I find that the weight afforded to the adjustment disorder diagnosis offered by Ms. Pariman is diminished by its provisional nature. Based on this, I disagree that an unconfirmed diagnosis offered exclusively on the basis of the applicant’s self-reports with no independent or objective corroboration is persuasive evidence of a psychological impairment, and particularly where there is only very recently reported symptomology more than three years after the accident.

16Similarly, I placed less weight on the three disputed OCF-18s—dated in January 2020, April 2021, and September 2021—that the applicant relies on to prove psychological impairment. This is because I was not pointed to evidence that convinces me sleep disorders are within the scope of practice for physiotherapists and chiropractors to diagnose, or that this diagnosis was, in fact, informed by a medical professional who is qualified to make a sleep disorder diagnosis.

17This is not to say that I disagree the applicant is experiencing psychological symptomatology. On the contrary, the August 2023 records of Dr. Abounaja report the applicant’s decreased concentration and interest as well as wanting to be alone. And in September 2023, Dr. Abounaja documented an impression of depression, anxiety, and insomnia. However, with three and a half years passing after the accident with no documented contemporaneous complaints of this nature in the medical records produced by the applicant, I find that the applicant’s claims of psychological impairment since the accident are unsupported. I therefore decline to remove the applicant from the MIG on this basis.

Chronic pain

18I find the applicant has not met his onus to show he suffers functional impairment owing to accident-related chronic pain.

19The applicant submits he sustained serious physical injuries in the accident that resulted in chronic pain with functional limitations. He asserts that he continues to experience pain in his neck, left shoulder and arm, and upper and lower back, which continuously interfere with his daily activities and work. The applicant contends that chronic pain is defined as a condition that persists for three to six months, and that he has well-documented pain that has been ongoing and continuous since the accident. The applicant relies on the clinical notes and records of Dr. Abounaja, and the three disputed OCF-18s.

20The respondent argues that the medical records in evidence do not support serious physical injuries resulting from the accident, or a diagnosis of chronic pain by any treating practitioner. The respondent says the applicant did not provide any clinical notes from physical therapy providers to assist in determining functional impairment or establish he obtained the recommended treatment. The applicant reasons that the “significant” amount of post-accident time that elapsed before the applicant was referred to orthopaedic and mental health specialists suggests the consultations are not related to the accident. The respondent relies on the Insurer’s Examination (“IE”) performed by Dr. Lesley Corrin (physician).

21I agree that the applicant sustained multiple accident-related injuries that cause him to experience pain. He points to Part 6 of the disputed OCF-18s as evidence of his physical injuries, and I accept he sustained whiplash, sprain and strain of his shoulder, middle back, and lower back, as well as joint pain and headaches—all of which I find fall into the definition of minor injury per the Schedule. As well, I find the clinical notes and records of Dr. Abounaja, as referenced in the applicant’s submissions from July 2020 until September 2023, establish continuous complaints of accident-related pain that support Dr. Abounaja’s characterization of the applicant’s pain in June 2023 as “chronic.”

22In terms of activity limitations, I further accept that the disputed OCF-18s indicate the applicant’s accident-related impairments affect his ability to carry out his employment tasks and normal life activities.

23I am not convinced, however, that the bulk of the evidence in this case supports functional impairments arising from the applicant’s chronic pain.

24The applicant submits he was unable to return to work as an Uber driver and has since had difficulty maintaining a return to work because of his injuries, ultimately withdrawing from work completely on August 27, 2022. However, I agree with the respondent’s position that the applicant did not point to evidence that substantiates these claims.

25While the applicant refers to several instances of asking for sick leave from work because of his pain (i.e., the clinical notes and records of Dr. Abounaja in November 2021, December 2021, and March 2022), I find the applicant does not satisfy his onus here. He did not point to a corroborating medical opinion or other evidence, such as employment records, which proves on balance that his work duties or normal life activities were restricted or modified to accommodate functional limitations arising from pain-related impairment.

26I am not directed to evidence in Dr. Abounaja’s reports that convinces me the applicant is no longer able to participate in “certain recreational activities and hobbies” or social activities due to chronic pain. On the contrary, Dr. Abounaja repeatedly recommended the applicant pursue exercises, such as aquafit and core strengthening, which, in my view, is inconsistent with the applicant’s claims of functional impairment. I further find that Dr. Abounaja physically examined the applicant on all three occasions where time off work was requested, and observed good range of movement in the applicant’s back and no tenderness along his spine despite diagnosing mechanical back pain. In my view, this does not support functional impairment owing to accident-related chronic pain, and corroborates the findings of Dr. Corrin, whose March 2022 examination did not identify any tenderness, spasm or muscular atrophy in the applicant’s neck and back, and found no objective evidence of any residual musculoskeletal impairment attributable to the applicant’s accident-related injuries.

27I do not accept the Ontario Disability Support Program (“ODSP”) application, dated September 7, 2023, as persuasive evidence of functional impairment. While I agree Dr. Abounaja indicated on the application form that the applicant’s low back pain causes an impairment in focus such that he cannot lift, and that the applicant’s neck pain impairs his bending such that he cannot work, I was not pointed to corroborating evidence of this in Dr. Abounaja’s contemporaneous clinical notes and records. The applicant’s submissions refer to a couple of visits (i.e., July 2020 and January 2022) where Dr. Abounaja observed a limited or reduced range of motion in the applicant’s lower extremities and back, respectively. But I find that neither of these entries recommend limitations, restrictions, or modifications to the applicant’s work or life activities as a result.

28Similarly, the August 2023 referral for a non-urgent orthopaedic consultation was not persuasive because no reason for this consultation was offered, and I did not give any weight to the applicant’s evidence of a contemporaneous referral to a pain specialist because this referral document was not in evidence prior to the respondent’s submissions. Further, I find the applicant’s submissions that pertain to his involvement in physical therapy are unsubstantiated and merit little weight because I was not pointed to any of the treatment records for the service provider(s) (i.e., Alexmuir Wellness Centre or otherwise). While I recognize the applicant’s position is that he was not obligated to provide records that were not requested by the respondent, it still remains that the onus of proof is on the applicant to make his case by substantiating his submissions with evidence.

29Taken together on balance, I am not convinced the evidence in this case establishes that the applicant sustained chronic pain with functional impairment resulting from the accident. I therefore decline to remove the applicant from the MIG on this basis.

The disputed OCF-18s and OCF-6

30I find the applicant is not entitled to the disputed OCF-18s and OCF-6.

31To prove entitlement, the applicant must show the treatment plans and expenses at issue are reasonable and necessary per section 15(1) of the Schedule. However, section 18(1) of the Schedule limits payment to $3,500.00 for insured persons who remain in the MIG. In this case, the parties agree the MIG limits have been exhausted and the applicant remains in the MIG. Therefore, an analysis of the reasonableness and necessity of the disputed OCF-18s and OCF-6 is not required.

Interest

32Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits or expenses owing, so no interest is owed.

ORDER

33The applicant remains in the MIG and is not entitled to the disputed OCF-18s or OCF-6. No interest is payable.

34The application is dismissed.