Rachelle Lachapelle v. The Dominion of Canada Insurance Company, 2024 CanLII 54044

Citation: Lachapelle v. The Dominion of Canada Insurance Company, 2024 ONLAT 22-003763/AABS

Licence Appeal Tribunal File Number: 22-003763/AABS

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

Between:

Rachelle Lachapelle

Applicant

and

The Dominion of Canada Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Jennifer M. Kelly, Counsel

For the Respondent: Kevin Bonneau, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Rachelle Lachapelle (the “applicant”) was involved in a motor vehicle accident on January 8, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Dominion of Canada Insurance Company (the “respondent”) denied income replacement benefits (“IRB”). The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (the “MIG”) limit? Note: The parties agree the MIG limits have not been exhausted, with $67.25 remaining as of the date of the case conference.

2. Is the applicant entitled to IRB of $400.00 per week from September 6, 2021 to date and ongoing?

3. Is the applicant entitled to $1,166.88 for Physiotherapy Services proposed by Back2Health Rehabilitation Centre in an OCF-18 dated June 8, 2021?

4. Is the applicant entitled to $583.44 for Services proposed by Back 2 Health Rehabilitation Centre in an OCF-18 dated August 4, 2021?

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

3As there is just $67.25 remaining within the MIG limit of $3,500.00, the MIG has been functionally exhausted. Accordingly, any entitlement to the treatment plans in dispute is first dependent on a finding that the applicant be removed from the MIG and its limit on treatment.

4I have changed the onset date of the IRB dispute noted above from August 30, 2021 to September 6, 2021, due to an error in the Case Conference Report and Order (“CCRO”) released January 26, 2023 that set this matter down for a written hearing. Written submissions of both parties confirm that the IRB was terminated in a letter dated August 30, 2021, but that the final date of IRB payment before the benefit was stopped by the respondent was September 6, 2021.

RESULT

5I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that exceed the definition of a minor injury as established in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.

ii. As I have found that the applicant remains within the MIG, which has been functionally exhausted, she is not entitled to the treatment plans in dispute, nor interest.

iii. The applicant is not entitled to IRB, as she has not demonstrated that she suffered from a substantial inability to perform the essential tasks of her employment, in accordance with s. 5(1) of the Schedule, or a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience, pursuant to s. 6 of the Schedule. It follows that she is also not entitled to interest.

PROCEDURAL ISSUE

6On October 16, 2023, the respondent filed a Notice of Motion (“NoM”) with the Tribunal seeking an order:

i. Staying the written hearing scheduled for November 3, 2023.

ii. Excluding the clinical notes and records (CNRs) from Dr. Robert Pastre attached at tabs 19, 24, and 26 of the applicant’s written hearing submissions from the hearing evidence and all references to these CNRs included in the applicant’s written hearing submissions be removed.

iii. Or, in the alternative:

i. That the applicant produce to the respondent the full 27-page package of Dr. Pastre’s CNRs to the respondent within 10 calendar days of the hearing of its motion; and

ii. An extension of the deadline for the respondent's written submissions to a reasonable date as determined by the Tribunal.

7This NoM was not on consent.

8In a Tribunal Motion Order dated October 17, 2023, the Tribunal ordered that the request to exclude the CNRs of Dr. Pastre and any reference to these CNRs in the applicant’s written submissions was to be heard by the hearing adjudicator. The other requests were denied.

9In its written submissions for the hearing, the respondent submits that the “updated” CNRs of Dr. Pastre should not be given weight with respect to both the IRB and MIG issues in dispute. The respondent claims that the records included as tabs 19, 24, and 26 of the applicant’s document brief were not disclosed prior to the applicant’s filing of submissions on October 10, 2023, even though the applicant had received them on September 21, 2023.

10Further, the respondent alleges that the applicant only disclosed select portions of these CNRs, not the full 27 pages of these records. The respondent claims that this was an attempt to circumvent both the deadlines for documentary disclosure as provided in the CCRO released February 22, 2023 and the Common Rules of this Tribunal.

11In reply submissions, the applicant takes the position that these CNRs were filed in accordance with the CCRO, the Notice of Written Hearing (“NoWH”) sent out by the Tribunal on March 27, 2023, and the Common Rules. The applicant argues that she met the provision included in the NoWH. She notes that Rule 9 as quoted in the NoWH requires parties to disclose their evidence at least 10 days before the hearing, a condition that she met as the CNRs in question were disclosed on October 10, 2023, more than 10 days prior to the hearing date of November 3, 2023.

12Further, the applicant maintains that no prejudice has been done to the respondent in the filing of these CNRs, as the insurer did not ask for an updated insurer assessment nor added time to file a paper medical review of these records. The applicant also holds that the respondent should have filed a NoM seeking added time to schedule an updated examination of the applicant or a paper medical review of these records.

13While I do not fully concur with the applicant’s reply, I am declining to exclude these updated CNRs as requested by the respondent.

14The applicant’s argument is circuitous and does not take into account the second part of Rule 9 as quoted in the NoWH, which clarifies that the 10-day deadline or an order of the Tribunal applies to the disclosure of evidence. The CCRO set a timeline for productions that specifically ordered the applicant to provide the respondent with the updated CNRs of Dr. Pastre no later than 60 days from the case conference that resulted in the CCRO released February 22, 2023. It is clear that the applicant contravened this order by not disclosing these CNRs until October 10, 2023—230 days after the release of the CCRO. This, in my view, is a significant contravention on its own. The applicant’s argument that this late filing was mitigated by the respondent’s decision not to request added time to schedule an updated examination or a paper medical review is immaterial, as the respondent was under no obligation to do so.

15However, I also find that the respondent’s submissions do not match what it had requested in its NoM. Where the NoM is clear that the respondent is seeking the exclusion of these CNRs and all references to them in the applicant’s written submissions, the respondent’s actual written submissions on this matter request that these CNRs not be given weight with respect to the MIG and IRB issues.

16This is quite different from a request to exclude these CNRs and references to them altogether. The respondent has also failed to detail how it was specifically prejudiced by the applicant’s late disclosure of these records. The respondent had the ability to respond to the content of these late records in its hearing submissions and did precisely that, which in my view undermines some of its argument that it was prejudiced by the late production of these records.

17Further, while I remain alive to the respondent's argument that these CNRs should be given limited weight on account of their late submission, I assign these records limited weight for other reasons, as noted in my MIG and IRB analyses set out below.

18I also accept the applicant’s argument that the exclusion of these CNRs would prejudice her ability to present her case. I acknowledge the respondent’s concerns about both the late production of these records and the piecemeal way in which they were filed. But I still find that excluding the CNRs entirely and the applicant’s argument based on these records would be too extreme a measure considering the clear importance of these documents to the applicant’s case.

19I rely on Rule 9.4 of the Common Rules and provide consent for the applicant to rely on these CNRs, despite the applicant’s contravention of Tribunal order. I decline to exclude the CNRs of Dr. Pastre, or references to these CNRs in the applicant’s submissions, and consider them in the rendering of this decision.

ANALYSIS

Minor Injury Guideline (“MIG”)

20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

21An insured person may be removed from the MIG if it can be established that his or her accident-related injuries fall outside of the MIG. In addition, an insured person can be removed from the MIG due to a pre-existing injury or condition. This factor, combined with compelling documentation and medical evidence indicating that the injury and/or condition precludes recovery if kept within the MIG, can result in an insured person being removed from the MIG pursuant to s. 18(2) of the Schedule. The Tribunal has further determined that chronic pain with a functional impairment may warrant an insured person’s removal from the MIG, as may a psychological impairment.

22The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.

23In this instance, the applicant submits that she suffers from “serious and permanent impairments of important physical, mental and psychological functions, and grievous physical injuries, which include whiplash associated disorder, sprain and strain of her cervical spine and lumbar spine” as a result of the accident. These conditions, the applicant argues, have developed into chronic pain due to constant headaches, ongoing pain in her neck, shoulders, and lower back, and numbness and tingling in her arms and hands.

24The applicant further claims that this chronic pain, which has resulted in her inability to work, has led to the development of feelings of hopelessness, sleep issues, and suicidal ideation. She largely relies on the CNRs of Dr. Pastre, family physician, which includes the record of an emergency psychological crisis assessment conducted on June 22, 2023 at the Sudbury Mental Health Centre by Jessica Lorenz, social worker; treatment records from Back2Health Rehabilitation Clinic; and the treatment plans in dispute.

25For the above reasons, the applicant seeks the determination that she be removed from the MIG due to chronic pain and psychological impairment, both conditions that are not listed in the Schedule’s definition of a minor injury.

26The respondent takes the position that the applicant’s injuries are predominantly minor and do not support her removal from the MIG. In written submissions, it holds that the applicant has demonstrated only that she suffers from soft-tissue physical injuries as a result of the accident and that she has failed to support her claims to suffering from any psychological impairment. The respondent primarily relies on three insurer’s examination (“IE”) reports dated August 20, 2021. These are: a functional abilities exam (“FAE”) report completed by Dr. Robert Fera, chiropractor; a neurology assessment report completed by Dr. Michael Angel, neurologist; and a physiatry assessment report completed by Dr. Abdul Wahab Khan, physiatrist.

27Correspondingly, the respondent seeks an order that the applicant be found to remain within the MIG.

Applicability of the MIG

28I find that the applicant has failed to meet her burden establishing that she suffers from a physical or psychological injury impairment that would warrant her removal from the MIG. As a result, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

Chronic pain

29The applicant has provided minimal evidence supporting her claims of suffering from chronic pain. Medical records indicate that the applicant suffered soft-tissue minor injuries such as sprain and strain of the lumbar and cervical spine, sprain and strain of the neck and shoulder, and whiplash, as a result of the accident, all injuries that fall within the minor injury definition provided in s. 3(1) of the Schedule. The applicant seems to have visited her family physician, Dr. Pastre, on just three occasions directly following the accident. On January 9, 2021, Dr. Pastre noted that the applicant was complaining of post-MVA back spasms, while on January 18, 2021 he wrote “substantial pain – poor sleep – despondent” and provided a referral to physiotherapy/chiropractic/massage therapy at the request of the applicant. These notations support that the applicant experienced soft-tissue injuries in the accident and was prescribed physical therapy treatment to address such issues. Back x-rays and a shoulder ultrasound ordered by Dr. Pastre in 2021 showed nothing remarkable.

30Much of the applicant’s argument in submissions regarding the development of chronic pain is focused on the record of an appointment that she had with Dr. Pastre on April 30, 2023. However, there is no mention of the subject accident in the physician’s record of this visit. Instead, this appointment, which took place more than two years post-accident, addressed the applicant’s complaints of “right upper quadrant pain/costal margin pain” that she had been suffering during the previous two months. Dr. Pastre wrote that a right chest x-ray he had ordered showed a right anterior rib fracture at the ninth rib, of indeterminate age, and diagnosed that her pain symptoms were a result of this fracture. He prescribed naproxen for pain relief. Again, Dr. Pastre does not connect this rib fracture to the accident that took place nearly 28 months earlier, nor does he note the presence of a chronic pain condition.

31In a follow-up appointment with Dr. Pastre on May 10, 2023 specifically to address the rib fracture that was apparently unrelated to the subject accident, the family physician noted “chronic pain from MVA shoulders/neck/back.” But Dr. Pastre does not include any supporting evidence, such as the details of a physical examination of the applicant, diagnostic imaging results that show anything remarkable, or even records showing that the applicant had been consistently self-reporting such chronic pain to the physician.

32In all, nothing in Dr. Pastre’s CNRs supports the applicant’s chronic pain assertion. They indicate only that Dr. Pastre treated the applicant for soft-tissue injuries shortly following the accident and that he saw her over two years later for an unrelated rib fracture.

33Moreover, I prefer the respondent’s medical evidence when it comes to chronic pain, even though these IE reports were commissioned largely to investigate the applicant’s condition with regard to the IRB issue. These reports provide the most detailed and comprehensive overviews of the applicant’s post-accident condition.

34In his physiatry IE report, Dr. Khan diagnosed the applicant with cervical spine sprain/strain and both left and right posterior shoulder girdle sprain/strain—all minor injuries in accordance with the Schedule. While Dr. Khan also opined that the applicant had not reached maximum medical recovery at the time, he did not identify any injuries that would warrant her removal from the MIG, nor note the presence of chronic pain.

35Dr. Angel diagnosed in his neurology IE report that the applicant likely suffered “traumatic positional vertigo” as a result of the accident, but that this was fully resolved following appropriate treatment. He found that she had reached maximum neurological recovery and did not note any condition that could result in the applicant being removed from the MIG, such as the chronic headaches that the applicant listed in submissions.

36The FAE report of Dr. Fera indicates that the applicant was suffering some pain and functional limitation at the time of the examination, but there is nothing within the report to definitively connect this pain to the subject accident, nor anything that would support a condition of chronic pain. For instance, while Dr. Fera noted some functional limitations, only the applicant’s lumbar extension was deemed significant. The applicant also demonstrated below normal left grip and below normal bilateral palmar pinch, left key pinch, and left tip pinch for her age (but was still rated as functional). In addition, Dr. Fera wrote that the applicant presented “with self limited performance during most postural tolerance, lifting and carrying tasks, citing increased pain.” This led to him being unable to complete an exertional demands profile due to insufficient data. He deferred to other medical assessors to determine if there were any accident-related impairments that correlated to limitations noted during the FAE evaluation.

37Even with the notations of some pain and minor functional limitations in the FAE report, the IE reports in total indicate that the applicant suffered soft-tissue injuries as a result of the accident that were treated and resolved. There is very little in these reports to support the applicant’s position that she suffered from chronic pain with a functional impairment warranting removal from the MIG.

38As a result of the above, the applicant has not demonstrated that she suffers from chronic pain warranting removal from the MIG.

Psychological impairment

39The applicant’s claim to suffer from psychological impairment as a result of the accident is also unsupported.

40The applicant has adduced only the records of an emergency psychological crisis assessment conducted on June 22, 2023 at the Sudbury Mental Health Centre by Ms. Lorenz. In this assessment report, which was attached to the updated CNRs of Dr. Pastre, Ms. Lorenz detailed the applicant’s complaints of depression as a result of the chronic pain she had been experiencing as a result of the subject accident.

41However, Ms. Lorenz acted in her capacity as a social worker, not a psychologist or psychiatrist with the ability to diagnose the applicant. No records have been submitted indicating that the applicant sought follow-up psychological treatment as a result of this assessment, or an appointment to discuss the assessment with Dr. Pastre (even though Ms. Lorenz noted at the end of her report that the applicant was being referred to mental health outpatient services and that the applicant accepted this referral).

42Additionally, the self-reporting of the applicant was the entire basis of this assessment. This alone is insufficient to support claims of psychological impairment, and I assign it minimal weight as a result. Also, even though the applicant identified the subject accident and the chronic pain that she has been suffering as a result as the leading factor in behind her feelings of hopelessness and anxiety, she also described a number of other stressors contributing to these psychological issues.

43In conclusion, there is insufficient evidence to support the applicant’s allegation that she suffers from a psychological impairment as a result of the accident that would warrant her removal from the MIG.

MIG conclusion

44For the above reasons, the applicant has not supported her claim to be removed from the MIG on the basis of chronic pain, psychological impairment, or another condition that falls outside of the Schedule’s definition of a minor injury. She remains within the MIG and its $3,500.00 limit on treatment.

45Since I have found the applicant to remain within the MIG, and because the MIG has been functionally exhausted, it is unnecessary to conduct an analysis of the treatment plans in dispute to determine if they are reasonable and necessary. She is not entitled to the treatment plans in dispute, nor interest.

Income Replacement Benefits (“IRB”)

46To receive payment for pre-104 week IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of her employment, which tasks she is unable to perform, and to what extent she is unable to perform them.

47To receive payment for post-104-week IRB under s. 6, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience. The applicant bears the burden of proving, on a balance of probabilities, that she meets the tests and criteria noted above.

48At the time of the accident, the applicant was employed full-time as an office manager and warehouse worker. IRB was awarded at the quantum of $400.00 weekly immediately post-accident, largely due to the conclusions of Andy Wang, physiotherapist. In a Disability Certificate/OCF-3 dated January 25, 2021, Mr. Wang determined that the applicant suffered whiplash and sprain and strain of the cervical and lumbar spine in the accident and was substantially unable to perform the essential tasks of her employment as a result of and within 104 weeks of the accident. He further noted that this period of disability was anticipated to last between five and eight weeks, but that it could last for “no more than 12 weeks” in total.

49This IRB was paid from January 15, 2021 to September 6, 2021, when it was terminated. In a letter to the applicant dated August 30, 2021, the respondent explained that the IE assessment reports of Dr. Angel and Dr. Khan (already detailed above) indicated that the applicant did not suffer from a substantial inability to perform the essential tasks of her employment. Therefore, the IRB was to be concluded with a September 6, 2021 payment.

50The applicant requests the reinstatement of this IRB, claiming that she continues to suffer from the same disabilities—namely chronic pain and psychological impairment—and is unable to continue with the performance of her pre-accident employment or work regularly in the new career as a part-time realtor that she began in November 2021. She mainly relies on the CNRs of Dr. Pastre and her income tax returns from 2020, 2021, and 2022 showing decreasing income that she claims is the result of her difficulties working due to accident-related injuries.

51The applicant does not specify if she is seeking the reinstatement of her IRB on the basis of the pre-104 or the post-104 tests described above, even though her argument references the criteria specified in the pre-104 test. However, I will provide a ruling on both tests, as the applicant is seeking an order requiring the respondent to reinstate the IRB from September 6, 2021 to date and ongoing, which would move the applicant into the period of more than 104 weeks following the accident.

52In response, the respondent takes the position that the applicant has failed to prove that she suffers from either a substantial inability to perform the essential tasks of her pre-accident employment or the complete inability to engage in any occupation for which she is reasonably suited by education, training, or experience.

53In short, the respondent argues that the applicant has not met the requirements of the pre-104 or post-104 IRB tests. The respondent further alleges that the applicant has returned to work. It relies primarily on the three IE reports already detailed earlier in the MIG section of this decision, along with the applicant’s pre- and post-accident employment files.

54For these reasons, the respondent seeks an order that the applicant is not entitled to either pre-104 or post-104 IRB.

Pre-104 and post-104 IRB determination

55I find that the applicant has failed to demonstrate that she suffers from either a substantial inability to perform the essential tasks of her employment or the complete inability to engage in any employment or self-employment for which she is suited, in accordance with the pre-104 and post-104 criteria in the Schedule. The applicant is not entitled to IRB, nor interest.

56The applicant has provided nominal argument and evidence to show that she meets the pre-104 or post-104 tests. She has not adduced any medical opinion supporting her claims. Most of the applicant’s IRB position is founded on the same assertions of chronic pain and psychological impairment that she relied on in her MIG argument, but are unsupported by the medical evidence.

57With regard to the pre-104 IRB test, there is nothing before me to substantiate the applicant’s allegations that she was unable to continue working at her office manager/warehouse job due to pain and the inability to lift and hold objects. The OCF-3 and the self-reporting of the applicant regarding her disabilities are all that she presents, which are insufficient without objective medical support.

58I am also persuaded by the respondent’s IE reports dated August 20, 2021, which resulted in the applicant’s IRB being terminated on the basis that she did not suffer from a substantial inability to perform the essential tasks of her pre-accident employment. For example, Dr. Angel in his neurology report concluded that the applicant had fully recovered from the traumatic positional vertigo suffered as a result of the accident. And Dr. Khan in his physiatrist report found that the applicant suffered soft-tissue injuries in the accident. As I have more fully detailed these IE reports above in the context of my MIG analysis, I will not repeat the remainder of their conclusions.

59With regard to the post-104 IRB test, there is no evidence before me supporting the applicant’s claims that her impairments also affected her ability to work at her new realtor position. All that she puts forward to bolster this argument are her tax returns. Although these income tax returns demonstrate that the applicant earned progressively less income in 2020, 2021, and 2022, this does not prove that the decreased income was the result of accident-related disabilities, let alone show a complete inability to engage in any employment or self-employment, as required by the post-104 test established in the Schedule.

60Accordingly, the applicant has not met the criteria established for either the pre-104 and post-104 IRB tests. She is not entitled to IRB, nor interest.

ORDER

61I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that exceed the definition of a minor injury as established in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.

ii. As I have found that the applicant remains within the MIG, which has been functionally exhausted, she is not entitled to the treatment plans in dispute, nor interest.

iii. The applicant is not entitled to IRB, as she has not demonstrated that she suffered from a substantial inability to perform the essential tasks of her employment, in accordance with s. 5(1) of the Schedule, or a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience, pursuant to s. 6 of the Schedule. It follows that she is also not entitled to interest.

iv. The application is dismissed.