Hagley v. Intact, 2021 CanLII 69278 (ON LAT) – Case Comment

Escaping the MIG: A chronic pain case and legal analysis

The applicant (hereafter “H”) was injured in a motor vehicle accident (or MVA) on October 31, 2016. She sought accident benefits pursuant to the Statutory Accident Benefits Schedule (or “SABS”) from Intact Insurance Company (hereafter “Intact”). In particular, H sought medical-rehabilitation (or “med-rehab”) benefits including for psychological services quoted at $3,246.09.

Intact denied H’s claim for psychological services, since its view was that her accident-related impairments were predominantly minor in nature and, hence, were subject to treatment within the limits established in the Minor Injury Guidelines (or “MIG”) (i.e. up to $3,500 for med-rehab benefits).

As her claim for accident benefits to Intact was denied, H applied to the Ontario License and Appeal Tribunal (or “LAT”).

After a written hearing, the LAT decided that H was not subject to the $3,500 cap for med-rehab benefits but that her claim for psychological services was not incurred or reasonable and necessary.

  1. H is not subject to the $3,500 maximum

First, the jurisprudence has established that either a psychological impairment, or chronic pain with a functional impairment, may warrant removal from the MIG.

H argued on both grounds in favor of removal from the MIG. She asserted that she suffered from chronic pain including low back pain, hip pain and shoulder pain; was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood; and had other psychological, cognitive and emotional impairments as a result of the accident. H supported her case with evidence from: her family doctor; the chronic pain specialist she had been seeing; and a psychological report by another doctor.

Intact argued that the MVA was minor; that H did not attend her family doctor’s office until five months post-accident; that the x-ray results were normal; that there were significant gaps in the medical records from January 2018 to March 2020; that she did not complain of lower back and right thigh pain until March 2020 (3.5 years later); and that the medical records disclosed few complaints of emotional pain that would support the diagnosis. Intact also relied on an IE report that found indications of feigning and a lack of psychometric evidence for the alleged psychological diagnosis.

The LAT found that H suffered from chronic pain and therefore ‘escaped the MIG’, because:

  • H had been seeing a chronic pain specialist since July 2019 and received treatment in the form of nerve block injections, joint injections and trigger point injections, and was prescribed medication (Pregabalin, Duloxetine, Baclofen and muscle cream) for pain management;
  • Both the family doctor and the pain specialist diagnosed H with chronic pain and attributed it to the MVA; and
  • H had been pain-free before the collision but consistently reported pain in the over five years after the collision;
  1. H is not entitled to benefits for the psychological services

To be eligible for med-rehab benefits, an applicant must prove that they have incurred the expense and that the expense was reasonable and necessary.

In this case, there was no evidence that H had incurred the expense for the psychological services. Nor was there evidence that she had sought any other psychological services.

The LAT also found that H had not met her burden of proof of showing that the psychological services were reasonable and necessary. The medical records did not support a finding of fact of psychological complaints that could be tied to the MVA. Significant weight was given to the IE report that found both indications of feigning and a lack of sufficient psychometric evidence.

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