Lachapelle v. Intact Insurance Company, 2025 CanLII 61179

Citation: Lachapelle v. Intact Insurance Company, 2025 ONLAT 23-010054/AABS

Licence Appeal Tribunal File Number: 23-010054/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:

Daniel Lachapelle

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Estella Muyinda

APPEARANCES:

For the Applicant:

Julia Hou, Counsel

For the Respondent:

Samara Maharaj, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Daniel Lachapelle, the applicant, was involved in an automobile accident on August 13, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The 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

3The issues in dispute are:

i. 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 (MIG) limit?

ii. Is the Applicant entitled to $2,471.53 for physiotherapy services, proposed by Focus Therapy in a treatment plan dated November 17, 2022?

iii. Is the Applicant entitled to $3,880.00 for physiotherapy services, proposed by Focus Therapy in a treatment plan dated February 27, 2023?

iv. Is the Applicant entitled to interest on any overdue payments?

v. Is the Respondent liable to pay an award under O. Reg 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4The applicant has demonstrated that he sustained carpal tunnel syndrome, an injury that is not predominantly minor. As a result, he is not subject to the MIG.

5The applicant is not entitled to $2,471.53 for physiotherapy services, proposed by Focus Therapy in a treatment plan dated November 17, 2022.

6The applicant is entitled to $3,880.00 for physiotherapy services, proposed by Focus Therapy in a treatment plan dated February 27, 2023.

7The applicant is entitled to payment of interest on overdue benefits pursuant to s.51 of the Schedule.

8The applicant is not entitled to an award under O. Reg 664.

ANALYSIS

Application of the Minor Injury Guideline

9Section 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 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."

10An insured person 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.

12The applicant submits that he was diagnosed with left carpal tunnel syndrome, a condition that is not listed under the MIG. It is on that basis that he submits that his injury falls outside of the MIG. The respondent disagrees.

13I find the applicant has proven, on a balance of probabilities, that his accident-related injuries fall outside the definition of a "minor injury" as set out in s. 3(1) of the Schedule.

14The applicant relies upon the clinical notes and records of Dr. Robert Ames, family doctor, and the assessment of Dr. Layla Safinia, neurologist, to support his claim that his injury falls outside the MIG.

15In his clinical notes, written in a handwriting that is deciphered with difficulty, Dr. Ames indicates that he attended to the applicant who was complaining of neck, left shoulder and back pain and numbness extending into his arms following the accident. Dr. Ames referred the applicant to a neurologist.

16The applicant was assessed by Dr. Safinia, on February 3, 2021. Her reports show that the applicant reported that he was experiencing numbness in the fingertips of the left hand and neck pain following the accident. Dr. Safinia conducted electrophysiological studies of the applicant's left arm, and she diagnosed the applicant with mild to moderate carpal tunnel syndrome. Dr. Safinia arranged for the applicant to undergo an MRI test of the neck.

17During his subsequent visit to Dr. Ames between May 22, 2021, and July 15, 2022, the applicant continued to complain about having sharp neck pain, numbness into his fingers, and severe low back pain which worsened after prolonged sitting. The results of the MRI of his back showed bulging discs affecting nerve roots. Dr. Ames records the applicant as having between moderate to severe pain in his clinical report dated July 15, 2022. Dr. Ames again referred the applicant to Dr. Safinia.

18At his appointment with Dr. Safinia on May 12, 2023, the applicant reported lower back pain and weakness in his left foot. Dr. Safinia performed nerve tests on both legs of the applicant. Results from the test revealed that the applicant had multilevel degenerative changes. Dr. Safinia recommended the applicant to continue with physiotherapy treatment and exercises. Further, if the symptoms persisted or worsened, she recommended that the applicant be referred to a pain clinic for nerve blocks and epidural injections.

19I find that the evidence from Dr. Ames' clinical records and Dr. Safinia's assessment corroborates the applicant's assertion that he was suffering from carpal tunnel syndrome.

20In its submissions the respondent states that Dr. Ames' handwriting is illegible and should be afforded little weight because the reader is forced to guess what is written. I agree that Dr. Ames has bad handwriting, and the photocopying of the notes adds to the difficulty in reading the clinical notes. However, I could tolerably read the notes and follow Dr. Ames' clinical notes and records. Therefore, I am not inclined to give Dr. Ames' notes and records less weight even though I have read the notes with difficulty, because of the potential prejudicial effect on the applicant.

21Further, the respondent states that the applicant did not provide pinpoint evidence linking his injuries to the accident. Thus, the respondent claims the applicant has failed to prove that he should be removed from the MIG. On the contrary, the evidence from Dr. Ames is relevant to the experience of the applicant as it establishes that the applicant's carpal tunnel syndrome resulted from the accident, and so is the evidence from Dr. Safinia. I refer to Dr. Ames notes dated March 24, 2021, where he mentions the applicant as having finger numbness after the accident. And Dr. Ames's June 7, 2021, notes under the heading phone consult, where he noted that the applicant was still getting sharp pain in the neck and numbness into her fingers. As well after conducting electromyography tests, Dr. Layla Safinia opines in her report dated February 3, 2021, that the applicant's symptoms started shortly after the accident. In the same report she states that the clinical assessment and electrophysiological studies are consistent with a mild to moderate left carpal tunnel syndrome.

22The respondent relies on two s. 44 reports of Dr. Mohamed Khaled, dated August 11, 2021, and April 24, 2023.

23The respondent submits that the applicant visited Dr. Khaled for a s. 44 assessment report relating to his eligibility for income replacement benefits. In his report dated August 11, 2021, Dr. Khaled diagnosed the applicant as having developed mechanical low back pain, as well as pain only in the fingertips of the fingers of the left hand. Dr. Khaled opined that what the applicant presented with was consistent with residual symptoms from myofascial sprains.

24In the subsequent report dated April 24, 2023, Dr. Khaled was asked, whether the applicant should remain in the MIG. The applicant did not mention any left hand or arm issues during this assessment. Dr. Khaled reiterated his first diagnosis, and he opined that there was no evidence of ongoing, permanent musculoskeletal impairment related to the accident. Therefore, the applicant should remain in the MIG.

25Further, Dr. Khaled said that the applicant had a mild left foot drop after fatigue and exertion which may be accident related. He recommended that the applicant undergo bilateral lower extremity EMG or nerve conduction studies to rule out evidence of mild lumbar radiculopathy. The respondent submits that, because Dr. Khaled did not make any reference to the applicant's having the carpal tunnel syndrome, his opinion supports the argument that the applicant remains in the MIG.

26The applicant submits that Dr. Khaled did not acknowledge Dr. Safinia's diagnosis of carpal tunnel syndrome. The applicant asserts that Dr. Khaled's report is less persuasive than the clinical notes and records, subsequent imaging, and electrophysiological studies. And, based on Dr. Safinia's diagnosis, the applicant claims he should be removed from the MIG.

27As much as I agree with the respondent's observation that Dr. Khaled not mentioning carpal tunnel syndrome in his diagnosis may be of significance, I am not entirely persuaded that this absence warrants discounting the applicant's assertion of having the carpal tunnel syndrome. This is because of the corroborating records of Dr. Ames and Dr. Safinia, that indicate that the applicant has the carpal tunnel syndrome. Further, the applicant's subsequent visit with Dr. Khaled does not change his earlier claim that the applicant had carpal tunnel syndrome.

28Furthermore, even though Dr. Khaled did not get an opportunity to review Dr. Safinia's report dated May 12, 2023, wherein she noted that the applicant has a mild left foot drop after exertion. In his report, dated April 24, 2023, Dr. Khaled had the same conclusion as Dr. Safinia. And he recommended that the applicant undergo bilateral lower extremity EMG or nerve conduction studies. I find that Dr. Khaled's acknowledgement that there is a requirement to investigate the applicant's nerve issues significant. And the diagnosis of carpal tunnel syndrome by Dr. Safinia in her report of February 3, 2021, is not refuted.

29For the reasons above, I find that the applicant has proven, on a balance of probabilities, that he sustained carpal tunnel syndrome as a result of the accident, and he is accordingly removed from the MIG.

30To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary because of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

31The applicant is seeking entitlement to two treatment plans for physiotherapy services in the amounts of $2,471.53, dated November 17, 2022, and $3,880.00, dated February 27, 2023.

32The applicant submitted that he incurred a total of $3,936.52 for the treatment plans. However, the sum of the treatment plans at issue does not add up to this amount. I will limit my analysis to the amount raised as issues two and three in the Case Conference Report and Order, specifically, $2,471.53, and $3,880.00.

$2,471.53 for physiotherapy services in a treatment plan dated November 17, 2022

33The applicant did not make any submissions about this treatment plan. In fact, the applicant did not include the OCF-18 form as part of his submissions. Instead, the OCF-18 form was submitted by the respondent. As the applicant has the onus to demonstrate why the proposed goods and services in a treatment plan are reasonable and necessary, I find the lack of submissions to mean the applicant has not met his burden for this plan.

$3,880.00 for physiotherapy services in a treatment plan dated February 27, 2023

34I find that the applicant has demonstrated, on a balance of probabilities, that he is entitled to this treatment plan.

35The respondent relies on Dr. Khaled's report, dated April 24, 2023, that states the treatment plan requested is not reasonable or necessary. Dr. Khaled opined that his examination, did not identify any valid indicators to support residual or ongoing or permanent musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. Additionally, Dr. Khaled's states that the applicant had appropriate and adequate facility-based soft tissue rehabilitation therapy. In his rationale Dr. Khaled states that prolonged facility-based treatment for individuals with these types of injuries are rarely recommended. Dr. Khaled opines that evidence indicates "that prolonged facility-based rehab therapies can contribute to a prolongation of symptoms and an overall worse clinical outcome".

36The applicant submits that he experienced difficulties at work due to ongoing symptoms and pain affecting his activity tolerance. He continued to feel pain at his neck and left side back, as well as symptoms of tripping and dragging feet.

37The treatment plan dated February 27, 2023, proposed fifty-two sessions that included physical rehabilitation, manipulation and therapy of multiple body sites, and use of a TENS machine for a period of 10 weeks. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, improve posture, function, and improve core stability for a total amount of $3,880.00. The applicant submits that he stopped the treatment when the respondent denied the treatment plan, even though he continued to experience neck pain radiating into his arms and persistent back pain. The applicant relies on the recommendation of Dr. Safinia to support his claim for the treatment plan.

38Based on a balance of probabilities, I place less weight on Dr. Khaled's opinion because there is no evidence that the applicant has had a prolonged facility-based rehabilitation. I am persuaded by Dr. Safinia's records wherein she recommended physiotherapy treatment for the applicant from the outset, her reporting that the applicant benefited from the physiotherapy treatment and finally her suggestion that the applicant continue with the physiotherapy treatment and exercises.

39I find that the applicant is entitled to $3,880.00, as he has demonstrated that this physiotherapy treatment plan is reasonable and necessary.

Interest

40The applicant is entitled to interest that applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

41The applicant seeks an award under s. 10 of O. 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.

42The applicant submits that initially he was self-represented. In August 2020, he authorized disclosure of his health records to the respondent. However, the respondent did not order the clinical records. On December 7, 2022, the applicant retained counsel and he submitted the health records to the respondent on February 28, 2023. The applicant submits that the health records showed that he had been diagnosed with left carpal tunnel syndrome. At that time, the applicant submitted a request to be removed from the MIG. The respondent disagreed.

43The respondent submits that the applicant has not provided evidence such as claim notes that would establish, he is entitled to a special award under s.10 of O. Reg. 664.

44The entitlement to an award under s. 10 of the Regulation is based upon a "stringent" test, applied only where any withholding of benefits or delay of payment by the respondent is unreasonable, and unreasonable conduct is described as "excessive, imprudent, stubborn, inflexible, unyielding or immoderate".

45Although the respondent could have been more responsive to the applicant by ordering the applicant's health records, its actions do not rise to the level of being immoderate, excessive, or imprudent.

46I am not satisfied the respondent unreasonably withheld or delayed payment for a benefit. This is because the applicant has not provided evidence that supports his claim for a special award.

47It is on that basis that I find that the applicant is not entitled to an award, because he has not proven on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of the benefits he sought.

48I find that the respondent did not unreasonably withhold or delay payment and is therefore not liable to pay an award.

ORDER

49The applicant has demonstrated on a balance of probabilities that he sustained carpal tunnel syndrome, an injury that is not predominantly minor. As a result, the applicant is not subject to the MIG.

50The applicant is not entitled to the treatment plan for $2,471.53 for physiotherapy.

51The applicant is entitled to the treatment plan for $3,880.00 for physiotherapy.

52The applicant is entitled to interest.

53The applicant is not entitled to an award under O. Reg 664.