Hall v. Intact Insurance Company, 2025 CanLII 135583

Citation: Hall v. Intact Insurance Company, 2025 CanLII 135583

Licence Appeal Tribunal File Number: 24-002979/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:

Kristal Hall

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Anthony Matiya, Counsel Carter Brodkorb, Student-At-Law

For the Respondent: Jaskiran Gill, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kristal Hall (“the Applicant”) was involved in an automobile accident on July 8, 2020, and sought benefits from Intact Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the Applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline ("the MIG") and the $3,500.00 funding limit for a minor injury?
2. Is the Applicant entitled to medical benefits proposed by Princeton Hill Medical as follows: i. $11,599.56 for a chronic pain treatment plan, dated November 27, 2021; ii. $2,200.00 for a chronic pain assessment plan, dated November 14, 2022; iii. $4,938.83 for a psychological treatment plan, dated February 23, 2023; and iv. $1,360.00 for a physiotherapy and chiropractic treatment plan, dated June 12, 2023?
3. Is the Respondent liable to pay an award to the Applicant because it unreasonably withheld or delayed the payment of benefits?
4. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

3I find that the Applicant sustained an injury that is not a minor injury.

4The Applicant has not demonstrated that the plans in dispute are reasonable and necessary as a result of the accident.

5No award or interest is payable.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck from behind while stopped at a traffic light. She sought no medical attention at the scene of the accident and drove herself to the collision reporting centre, and then the police station to report the accident.

7The Applicant spoke to her family physician 10 days later and reported the accident, that she was experiencing ongoing neck, back, leg and wrist pain, as well as headaches. She was prescribed medication and advised to continue physiotherapy.

8The Applicant claims that her symptoms have persisted and developed into chronic pain syndrome. She also submits that she has developed psychological injuries as a result of the accident. To the Respondent, the Applicant sustained uncomplicated soft-tissue injuries which she can treat adequately within the MIG.

PROCEDURAL ISSUE

9The Applicant failed to disclose key aspects of her evidence in accordance with the case conference report and order dated August 20, 2024. Specifically, it was only when tendering her written submissions that she disclosed clinical notes and records (“CNRs”) from Dr. C. Christie’s office (her family physician), Athlete’s Care (a pain clinic she attends), and Mackenzie Medical Rehabilitation Centre (her treatment provider).

10The Respondent submits that the evidence should be excluded from the hearing record, or given no weight, due to the improper disclosure. It submits that including the evidence would be inherently prejudicial and against the principles of procedural fairness and natural justice.

11The Applicant was provided an opportunity to reply but chose not to.

12When analysing whether a document should be excluded from a hearing, the Tribunal should consider any relevant factor, including the reasons for non-compliance, whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by another order, the extent to which the substance of the information lies within the knowledge of the other party, whether the other party opposes the admission of the evidence, and the relevance of the document to an issue in dispute in the proceeding.

13Upon review of the documents, I conclude that this is a rare occasion where the overall justice of the case requires that they be included in the hearing record. This is because the documents are inherently relevant to the issues in dispute. In fact, the relevance of these documents when assessing whether the Applicant sustained a minor injury outweighs and prevails over any other factor.

14The documents are relevant because they outline that the Applicant’s back pain from the accident continued for a prolonged period, is impacting her ability to complete tasks, and was the reason she received nerve block injections.

15There is little prejudice to the Respondent in allowing the evidence from Dr. Christie and Athlete’s Care pain clinic because the relevant evidence is clear, objective, and uncontroverted. The CNRs from Dr. Christie’s office outline that the Applicant was referred to Athlete’s Care pain clinic by Dr. Christie due to ongoing back pain as a result of the accident. The CNRs from Athlete’s Care clearly demonstrate that the Applicant received nerve block injections in her back to alleviate her ongoing pain.

16It would be inefficient and ineffective to deny the Applicant the opportunity to tender this evidence. This is because the evidence from Athlete’s Care clearly demonstrates that the Applicant receives nerve block injections because she suffers from a chronic pain condition. I do not condone the practice of withholding documents or, of failing to comply with a Tribunal Order. However, the overall justice of this case is that the Applicant be allowed to include the records because they demonstrate on a balance of probabilities that the Applicant sustained an injury that is not a minor injury.

17This is a rare occasion where the improperly disclosed evidence is clear and irrefutable, and of little prejudice to the Respondent. The evidence, as I will elaborate on further, clearly shows that the Applicant receives nerve block injections due to ongoing accident-related pain. This evidence demonstrates that the Applicant sustained more than a minor injury and there is no prejudice to the Respondent because, as I will outline, the Applicant has not demonstrated that the benefits claimed are reasonable and necessary as a result of the accident.

ANALYSIS

Minor Injury Guideline ("MIG")

18The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are minor are subject to a $3,500.00 funding limit on treatment.

19The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

20For the following reasons, I find that the Applicant has demonstrated that she sustained an injury that is not included in the minor injury guideline.

The Applicant suffers from a chronic pain condition

21I find that the Applicant suffers from a chronic pain condition which is not included in the minor injury definition in section 3 of the Schedule.

22The most compelling and undisputed evidence indicating that the Applicant suffers from a chronic pain condition is that she was prescribed and received nerve block injections in her back to address ongoing pain. The CNRs from Dr. Christie show that, on August 3, 2022, the Applicant was referred to Dr. C. Nguyen, who specializes in chronic pain conditions, due to ongoing chronic low back pain. According to the CNRs from Dr. Nguyen’s pain clinic, the Applicant received nerve block injections by October 18, 2022, which yielded some functional improvement. I find on a balance of probabilities that a person would engage in a significant procedure such as nerve block injections if they were suffering form a chronic pain condition.

23I find that the referral to Dr. Nguyen, and the Applicant’s receipt of nerve block injections, outweighs the IE reports of Dr. T. Walters, physician, dated November 23, 2021, and Dr. A. Belfon, physician, dated August 4, 2023. Dr. Walters opined that the Applicant had a lumbar strain and not chronic pain. However, it was also noted that inadequate information was available at the time of assessment, that Dr. Walters observed that the Applicant had ongoing pain in her wrist and back, and recorded that she reported that she used to be able to do plank exercises for up to 5 minutes, but is now limited to 20 seconds. Similarly, nearly 2 years later, Dr. Belfon noted that the Applicant continued to take naproxen for pain and is now also taking pregabalin, no longer goes for hikes or dances recreationally, and that her pain symptoms persist. Further, Dr. Belfon suggested that an MRI of the low back would help explain the ongoing symptomology. Together, the reports of Dr. Walters and Dr. Belfon do not outweigh the fact that the Applicant needs nerve block injections to cope with her ongoing accident-related back pain.

24Accordingly, I find that the Applicant has demonstrated that she suffers from a chronic pain condition as a result of the accident. From this, I conclude that she sustained a chronic pain condition, which is not included in the minor injury definition. Accordingly, the Applicant is not subject to the MIG or the $3,500.00 funding limit for a minor injury.

Chronic pain treatment plan, dated November 27, 2021

Chronic pain assessment plan, dated November 14, 2022

Psychological treatment plan, dated February 23, 2023

Physiotherapy and chiropractic treatment plan, dated June 12, 2023

25I find that the Applicant has not demonstrated that the plans in dispute are reasonable and necessary as a result of the accident.

26The Applicant has not directed me to any evidence to support a finding that these plans are reasonable and necessary as a result of the accident. She has not identified any goals in the plans, nor the goods and services proposed and how they would assist her recovery. This alone is sufficient to dismiss the Applicant’s claims for entitlement.

27With respect to the chronic pain treatment and assessment plans, it appears that the Applicant has been adequately served by her family physician and associated referrals. With respect to her right wrist pain from De Quervain’s tenosynovitis, it was addressed by Dr. K. Hsu, and by November 19, 2021 had resolved with the use of a wrist splint. Dr. Christie referred the Applicant to Dr. M. Bryer, neurologist, who examined her on January 18, 2022 and found a normal neurological exam. When the Applicant’s back pain persisted, she was referred to Dr. Nguyen, and they met on August 29, 2022. Dr. Nguyen assessed the Applicant and developed a treatment plan for her ongoing back pain, which included nerve block injections. Accordingly, there is no need for the Respondent to fund a chronic pain assessment or a chronic pain treatment plan, given the care she has received and continues to receive since the accident. On a balance of probabilities, I find the applicant is not entitled to the chronic pain assessment.

28I find that the psychological assessment plan is not reasonable and necessary as a result of the accident. I place significant weight on Dr. Christie’s CNRs, indicating that the Applicant does not suffer from an accident-related psychological impairment. Dr. Christie’s CNRs do not include complaints of any psychological symptoms following the accident and Dr. Christie never referred the Applicant to any psychological treatment, nor prescribed any medication to address psychological symptoms. I prefer the assessment report of Dr. M. Mandel, psychologist, dated June 19, 2023 over the psychological assessment report of L. Levitas, psychotherapist, supervised by Dr. M. Konstantareas, psychologist, dated January 31, 2022. The assessment by Dr. Mandel included a review of the Applicant’s medical record, whereas the virtual assessment by psychotherapist Levitas included no review of the Applicant’s medical record and relies entirely on the Applicant’s self-reports. Dr. Mandel’s conclusion is that there was a lack of consistent objective information to support a diagnosis or a finding that the Applicant suffers clinically significant psychological symptoms. Dr. Mandel’s opinion is most consistent with the balance of the Applicant’s medical record, which includes no significant complaints of a psychological symptoms by the Applicant. Accordingly, on a balance of probabilities, I find that the psychological assessment plan is not reasonable and necessary as a result of the accident.

29I find no contemporaneous evidence in support of the physiotherapy and chiropractic treatment plan. The Applicant never submitted Dr. Christie’s CNRs for the period after January 4, 2023, thus there is no support from her family physician for ongoing therapy. The only contemporaneous evidence from the Applicant with respect to this plan is the CNRs from Releva clinic. Those notes confirm that the Applicant received massage therapy. I find no information in those records to suggest that the Applicant requires ongoing physiotherapy or chiropractic treatment for her accident-related back pain, further suggesting that the chronic pain care she received through Dr. Nguyen is adequate. Accordingly, I find that the Applicant has not demonstrated on a balance of probabilities that the physiotherapy and chiropractic treatment plan is reasonable and necessary as a result of the accident.

Interest

30Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

31The applicant sought an award under section 10 of Regulation 664. Under section 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.

32I find no basis for an award.

33It is trite law that the Respondent is not held to a standard of perfection. Moreover, the Respondent can only access the records that the Applicant provides to it, or that the Applicant authorizes the release of. Here, the Applicant did not provide compelling evidence of a chronic pain condition until issuing submissions for the hearing. Thus, it was reasonable for the Respondent to deny the Applicant’s claims based on the evidence they had at the time of denial, together with the recommendations from the IE assessors. Accordingly, I find that the Respondent never unreasonably withheld or delayed the payment of benefits, thus the Applicant is not entitled to an award.

CONCLUSION AND ORDER

34The Applicant sustained an injury that is not a minor injury.

35The Applicant has not demonstrated that the plans in dispute are reasonable and necessary as a result of the accident.

36No award or interest is payable.