Donatien v. Intact Insurance Company, 2025 CanLII 132426

Licence Appeal Tribunal

Citation: Donatien v. Intact Insurance Company, 2025 ONLAT 24-005469/AABS

Licence Appeal Tribunal File Number: 24-005469/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:

Shawn Donatien

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Harneet Badwal-Sandhu, Counsel

For the Respondent:

Robbie Brar, Counsel

HEARD:

In Writing

OVERVIEW

1Shawn Donatien, the applicant, was involved in an automobile accident on September 21, 2022, 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 the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

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?

2. Is the applicant entitled to the treatment and assessments proposed by Toronto Medical Centre in treatment plans/OCF-18s ("plan"), as follows:

   i. $1,581.98 for chiropractic services, in a plan submitted on January 16, 2024;

   ii. $56.41 ($1,356.35 less $1,299.94 approved) for chiropractic services, in a plan submitted on December 1, 2023;

   iii. $1,400.00 for transportation services, in a plan submitted on October 11, 2023;

   iv. $1,995.32 for a psychological assessment, in a plan submitted on March 1, 2024;

   v. $1,748.05 for a bio-psychosocial assessment, in a plan submitted on November 17, 2023; and

   vi. $200.00 for completion of a disability certificate, submitted on September 8, 2023.

3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant remains subject to the MIG.

4As the applicant remains subject to the MIG, he is not eligible for the treatment plans or other issues in dispute.

5Neither interest nor an award are payable.

ANALYSIS

Has the applicant proven he should be removed from the MIG?

6The applicant has not proven he should be removed from the MIG.

7Section 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."

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are 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.

9The applicant submits that they have suffered significant physical injuries, consisting of leg, hip and neck pain, which extend beyond the scope of the MIG, and as a result, they have suffered the complete inability to lead a normal life. To support their argument, the applicant has submitted:

i. The OCF-3 (Disability Certificate), dated September 5, 2023, and signed by Chiropractor Dr. Shadi Jahandideh; where Dr. Jahandideh diagnosed a number of sprain and strain-type injuries. He does note "Patient is having difficult with most ADLs" (Activities of Daily Living).

ii. Clinical Notes and Records (CNRs) of Family Doctor Dr. Imran Khurshid, dated April 29, 2024, where Dr. Khurshid diagnoses ongoing back pain and recommends an MRI. While it is unclear if the applicant received an MRI, I was not led to MRI results as part of the applicant's submissions.

iii. CNRs from GP Dr. Parastoo Javan Bakht dated March 27, 2024, where Dr. Bakht recommends ongoing physiotherapy for lower back pain.

iv. Hospital reports from Scarborough Health Network on the day of the accident, where the applicant reports he left without being seen due to the lack of medical coverage. Notwithstanding this submission, I do note that the CNRs from the Scarborough Health Network indicate "no obvious trauma or injury" in the triage notes compiled by Registered Nurse Milissa Vilar.

10The applicant submits that he has been very limited in his ability to collect further medical evidence due to his immigration status in Canada. As the applicant does not have an OHIP card, he has been unable to bear the medical expenses of diagnostic tools such as an MRI, or other physician treatments.

11The respondent disagrees, and argues that the applicant has consistently failed to produce medical evidence showing he has suffered a non-minor injury, or even the requested CNRs from prior to the accident. They specifically highlight that none of the medical documents agreed upon for disclosure during the Case Conference Report and Order have been produced, and any of the CNRs submitted as evidence at the hearing were not disclosed in advance.

12As a remedy, the respondent requested that I remove the applicant's medical evidence from consideration. However, given that I have found the applicant failed to meet their onus on the face of their evidence, it is not necessary for me to consider the respondent's request.

13The respondent further submits that the applicant has significant prior injuries, but the lack of disclosure hampers their ability to determine pre-existing conditions. To wit, the applicant was reportedly the victim of gun violence in February 2021 and involved in significant surgery. The applicant chose not to submit a reply submission.

14To further support their position, the respondent relies upon an Insurer's Examination, conducted by GP Dr. David Mula on December 9, 2024. Dr. Mula diagnosed the applicant with minor strain and sprain-type injuries and found that the applicant's impairments remained within the MIG.

15While I am alive to the difficulties posed by the applicant in gathering medical evidence, the fact remains the onus is the applicants to bear. The OCF-3 itself, while it does indicate a complete inability to lead a normal life, does not indicate any medical injury beyond sprain and strain type injuries. The CNRs from the family doctor are very sparse, and do not indicate a non-minor injury. I have not been directed to any further medical evidence which indicates the applicant has suffered a non-minor injury.

16While it was not explicitly claimed, I have also considered whether the applicant should be removed from the MIG on the basis of chronic pain with a functional limitation.

17It is worth noting that chronic pain itself does not warrant removal from the MIG, but rather chronic pain with a functional limitation. I have not been led to supportive evidence to indicate a functional limitation. I find, on the balance of probabilities, the applicant has not met the onus to warrant removal from the MIG based on chronic pain with a functional limitation.

18Overall, given the lack of supporting medical evidence, I find that the applicant has not, on the balance of probabilities, established entitlement to being removed from the MIG.

19As the applicant is being held to the MIG, it is not necessary for me to conduct a 'reasonable and necessary' analysis on the treatment plans in dispute.

Interest

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

21The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have ruled that the applicant is correctly being held to the MIG, I find the insurer has not unreasonably withheld or delayed the payment of benefits. As such, no award is payable.

ORDER

22The application is dismissed.

i. The applicant is being held to the Minor Injury Guideline.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. Neither interest nor an award are payable.