Citation: Malcolm v. Intact Insurance Company, 2026 ONLAT 24-009985/AABS

Licence Appeal Tribunal File Number: 24-009985/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:

Richard Malcolm

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Henry Harris

APPEARANCES:

For the Applicant: Ardi Deti, Paralegal

For the Respondent: Kevin So, Counsel

HEARD: By way of written submissions

OVERVIEW

1Richard Malcolm (the “applicant”) was involved in an automobile accident on November 24, 2021, 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 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 $2,960.26 for psychological services, proposed by Pilowsky Psychology Professional Corp. in a treatment plan/OCF-18 (“plan”) dated October 3, 2022?

iii. Is the applicant entitled to $2,081.73 for chiropractic services, proposed by Activa Clinics Brampton in a plan dated June 21, 2022?

iv. Is the applicant entitled to $15,322.73 for a multidisciplinary pain management program, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated June 21, 2022?

v. Is the applicant entitled to $2,460.00 for an orthopedic assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated October 11, 2022?

vi. Is the applicant entitled to $2,144.93 for a psychological assessment, proposed by Pilowsky Psychology Professional Corp. in a plan dated May 19, 2022?

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

3In his submissions, the applicant withdrew his claim for an award under s. 10 of Reg. 664, listed as issue 7 in the case conference report and order dated December 5, 2024 (the “CCRO”). The issues in dispute have been adjusted accordingly.

RESULT

4The applicant remains subject to the MIG.

5As the applicant remains in the MIG, I have not considered if any of the plans in dispute are reasonable and necessary.

6The applicant is not entitled to interest.

7The application is dismissed.

ANALYSIS

The applicant remains within the Minor Injury Guideline (MIG)

8I find that the applicant has not established on a balance of probabilities that he suffers from an accident-related injury or condition that warrants removal from the MIG.

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.”

10An 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 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.

11In all cases, the burden of proof lies with the applicant.

12The applicant submits that he should be removed from the MIG because he:

a) suffers from chronic pain as a result of the accident; and

b) sustained accident-related psychological injuries.

a) The applicant is not removed from the MIG on the basis of chronic pain

13I find that the applicant has not proven on a balance of probabilities that he has accident-related chronic pain with functional impairment that would preclude recovery if held within the MIG.

14The applicant submits that he should be removed from the MIG due to his accident-related chronic pain. In support of his position, the applicant relies on the November 16, 2022 s. 25 orthopaedic/chronic pain assessment report of Dr. D.J. Ogilvie-Harris, orthopaedic surgeon. Dr. Ogilvie-Harris diagnosed the development of chronic pain syndrome with central sensitization. The applicant submits the diagnosis was provided meeting four of six criteria for evaluating a chronic pain condition under the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”).

15The respondent counters that the applicant has not established that he suffers from chronic pain syndrome under the AMA Guides and that no weight should be given to the report of Dr. Ogilvie-Harris due to incorrect or inconsistent reporting by the applicant and an absence of any objective medical support for Dr. Ogilvie-Harris’ findings. The respondent relies on the February 24, 2024 insurer’s examination (“IE”) report of Dr. E.P. Urovitz, orthopaedic surgeon. Dr. Urovitz found the applicant does not demonstrate any objective signs of orthopaedic impairment, and that he sustained minor accident-related injuries to the cervical spine, lumbar spine and possibly the left knee.

16I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG for the following reasons.

17Unlike those for catastrophic impairment, the chronic pain criteria in the AMA Guides are not in the Schedule and therefore not binding on the Tribunal; however, the chronic pain criteria are a useful interpretive tool in evaluating whether the applicant has met their burden of proving they should be removed from the MIG.

18The AMA Guides list the criteria for evaluating chronic pain as follows:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contacts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

19I find the applicant has not led sufficient evidence that he meets the criteria for evaluating chronic pain syndrome under the AMA Guides, which states that a person must meet at least three of six criteria to support a diagnosis. The applicant submits he was found to meet four of the six criteria, however, his description of such criteria does not clearly align with the AMA Guides. For example, he states one criteria he meets is “persistent pain well beyond the normal healing time for minor injuries”. The applicant does not explain which criterion this meets. In contrast, Dr. Ogilvie-Harris opined that the applicant was positive in five out of six criteria, stating he was only negative for abuse of prescription drugs. However, neither the applicant’s submissions nor Dr. Ogilvie-Harris’ report explain how the applicant meets such criteria. For example, I was not directed to anything in the medical record that indicates excessive dependence on health care providers or family, secondary physical conditioning due to pain, or withdrawal from social milieu. I note that Dr. Ogilvie-Harris conducted a physical examination, and found that the applicant had normal range of motion in his spine and left knee, being the areas examined.

20In addition, the applicant did not lead any evidence of medical records, such as family doctor clinical notes and records (“CNRs”), to support his complaints to Dr. Ogilvie-Harris. Indeed, Dr. Ogilvie-Harris’ report suggests that imaging of his spine and left knee would be required to determine the source of his pain and the care required. I agree with the respondent that this suggests there is insufficient medical information to provide a diagnosis of accident-related injuries.

21Finally, the respondent argues that Dr. Ogilvie-Harris did not make an actual diagnosis of chronic pain syndrome. Instead, the report notes that the applicant has “features of chronic pain syndrome”. While I recognize that a diagnosis is not necessary to prove chronic pain, when I consider this along with the lack of discussion of how the criteria in the AMA Guides is satisfied, I am not persuaded that the applicant has demonstrated that he suffers from chronic pain with functional impairment.

22Accordingly, I find that the applicant has not established on a balance of probabilities that he has accident-related chronic pain with a functional impairment to warrant removal from the MIG.

b) The applicant is not removed from the MIG on the basis of psychological injuries

23I find that the applicant has not proven on a balance of probabilities that he sustained a psychological injuries due to the accident that warrants removal from the MIG.

24In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. Psychological impairment is not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

25The applicant submits that he suffers from a psychological injuries as a result of the accident and, as such, should be removed from the MIG. In support of his position, the applicant relies on the September 19, 2022 s. 25 psychological assessment report of Dr. Judith Pilowsky, psychologist. Dr. Pilowsky diagnosed the applicant with post-traumatic stress disorder symptoms with panic attacks and vehicular anxiety; and adjustment disorder with depressed mood. It was also noted that the applicant was at risk of developing a somatoform pain disorder.

26The respondent counters that the applicant has not established that he has any psychological impairments as a result of the accident. The respondent relies on the August 14, 2023 IE report of Dr. Marc Mandel, psychologist. Dr. Mandel found there is a lack of consistent objective information to support the applicant suffers from clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the accident.

27I find that the applicant has not proven on a balance of probabilities that he sustained a psychological impairment due to the accident. There is a lack of evidence corroborating the applicant’s own reports to Dr. Pilowsky of psychological difficulties. In my view, this diminishes the probative value of the diagnoses offered by Dr. Pilowsky. Other than Dr. Pilowsky’s report, the applicant has not identified any post-accident medical records that document psychological complaints. As well, the referral for the psychological assessment did not come from a doctor but rather the applicant’s legal representative. While I do not find the absence of a medical referral to be dispositive, it does further demonstrate a lack of evidence of documented mental health complaints by the applicant.

28Further, I find the IE report of Dr. Mandel to be persuasive in assessing the applicant’s mental state. Dr. Mandel’s assessment was two and a half hours in length. Of note, the applicant reported he drives and is fine on roads and highways, and has no physiological reactivity as a passenger or as a driver. He cares for his son and drives him to activities. He reported no prolonged sadness or low mood and had no significant diminished interest in the majority of activities he enjoys. The applicant described his main stressor is being unemployed (which he was at the time of the accident), although he reports being well supported by his common law partner. He is primarily worried about finances and the care for his son in the future, which is not related to the accident. Dr. Mandel concluded there was a lack of objective information to support clinically significant symptoms that would support a psychological diagnosis as a direct result of the accident.

29Accordingly, I find that the applicant has not proven on a balance of probabilities that he sustained a psychological injury due to the accident that would warrant removal from the MIG. Therefore, I find that the applicant is subject to the MIG.

30As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

ORDER

32For the reasons outlined above, I find that:

i. The applicant shall remain in the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.