*Since the writing of the blog the decision has been reversed at FSCO appeal.
In the recent decision of Abyan v Sovereign General Insurance Company (FSCO A16-003657, September 14, 2017) Arbitrator Benjamin Drory held that based on the facts before him, sections 3 and 18(2) of the Statutory Accident Benefits Schedule (the definitions and monetary caps related to the Minor Injury Guideline (MIG) were unconstitutional as they unjustifiably infringed upon section 15(1) of the Canadian Charter of Rights and Freedoms.
In Abyan the Applicant developed chronic neck and back pain post-accident, which his physiatrist opined was caused when his motor vehicle accident aggravated pre-existing degenerative changes in his cervical spine. The Applicant disputed Sovereign’s denial of $1,995.32 for a psychological assessment, which was denied based on the MIG. In doing so he challenged the constitutionality of the MIG, and served the Attorney Generals for Ontario and Canada with notice of his intention to raise a constitutional argument. Inexplicably, there was no opposition to the Application by anyone: neither Attorney General participated in the hearing, and for reasons that are not apparent on the face of the decision, neither did the insurer. Thus, all of the Applicant’s evidence was presented unchallenged.
The Applicant’s constitutional challenge relied heavily on the evidence of the Applicant’s expert orthopaedic surgeon, Dr. Getahun, who opined at the hearing that the Applicant’s injuries were consistent with chronic pain, which precluded him from achieving maximum medical recovery within the MIG. Dr. Getahun’s uncontroverted and unchallenged evidence was that chronic pain went beyond persistent pain, and was a “devastating and recalcitrant type with major psycho-social consequences”, which was synonymous with “chronic pain syndrome”. This pain could persist even though the patient recovered from his original injury. As it was not, in Dr. Getahun’s opinion, unusual for orthopaedic injuries to develop into chronic pain, the phrase “clinically associated sequelae” as found in the MIG and the Schedule must, on its plain reading, necessarily include chronic pain. Dr. Getahun opined that from a medical perspective chronic pain was not a minor injury. He also gave evidence that he not infrequently encountered patients who had pre-existing asymptomatic conditions but did not have pre-accident documentation confirming a pathology. Their symptoms could nevertheless be caused by the aggravation of their pre-existing condition by a traumatic event, such as a motor vehicle accident. It was, in Dr. Getahun’s unchallenged opinion, unfair to insist on documentation for an asymptomatic pathology.
In challenging the constitutionality of the MIG, the Applicant took the position that together sections 2 and 18 of the Schedule (i) precluded persons who sustained “minor injuries” that continued beyond normal recovery times, including those who suffered from chronic pain as a clinically associated sequelae; from receiving reasonable and necessary medical and rehabilitation benefits, and (ii) precluded injured persons who sustained minor injuries and had asymptomatic, undocumented pre-existing health conditions from achieving maximal recovery.
Arbitrator Drory found that the Tribunal had jurisdiction to determine the constitutionality of a provision of the Schedule further to the Supreme Court of Canada’s decisions in Cuddy Chicks, Martin and Conway. Specific weight was placed on Nova Scotia v Martin, where the Supreme Court of Canada read down the provisions of the Worker’s Compensation provisions as being unconstitutional where they failed to recognize the legitimacy of chronic pain. While he was not persuaded that the Applicant’s section 7 rights to life, liberty, and security of the person were infringed by the challenged provisions of the Schedule, he applied the most recent articulation of the analytical framework for section 15 Charter challenges as found in Kahkewistahaw First Nation v Taypotat,  2 SCR 548 and held that the Applicant’s section 15(2) Charter rights were infringed. This finding was based on his acceptance of Dr. Getahun’s testimony that the phrase “clinically associated sequelae” found in the MIG meant “anything that is a following sequel of” in the natural course of recovery from treatment of an injury. As it was accepted that chronic pain could be and often was a sequel of an injury, individuals who suffered chronic pain as a sequel of a motor vehicle accident became caught in the MIG in ways that many other accident victims did not. As a result, the MIG arbitrarily discriminated against these individuals, with no clear purpose provided for this restriction. Further, the provisions did not minimally impair the rights of chronic pain sufferers, as the legislation could have been worded so as to not draw all chronic pain sufferers within the ambit of the MIG. This was especially true where the stated objective of the MIG was to focus on a functional restoration approach, and consumer protection was one of the main objectives of insurance legislation. Acceptable alternative wording was not identified by the Arbitrator.
Arbitrator Drory similarly held that the February 2014 amendments to the Schedule that imposed the need for a pre-existing condition to be documented by a health practitioner prior to the accident also violated section 15 of the Charter, as this requirement discriminated against people without a doctor, people without access to OHIP, people who had asymptomatic pre-existing conditions, or people who were involved in a motor vehicle accident shortly before the provision came into effect.
Accordingly, Arbitrator Drory read down the phrase “clinically associated sequelae” to exclude those who suffered from chronic pain as among the sequelae. As the wording “that was documented by a health practitioner before the accident” could not be read down, it was severed from the provision. He expressly noted that per Cuddy Chicks and Martin the applicability of this decision was strictly limited to the particular case before him, and did not create a precedent of general effect.
Multiple significant issues are raised by Arbitrator Drory’s decision. The first is that while the Arbitrator noted that Dr. Gethun’s proposed interpretation of “clinically associated sequelae” was a medical and not a legal one, he accepted it as proffered where there was no challenge to that evidence, and no contrary evidence led, and proceeded to conduct his legal analysis of the constitutionality of the provision based on this definition. He did so without the benefit of any responding submissions. He failed to address a line of jurisprudence commencing most notably with Arruda v. Western Assurance Company (FSCO A13-003926, July 7, 2015) that provided a legal interpretation of this phrase, and which concluded that chronic pain of the type described by Dr. Getahun (which he confirmed was synonymous with chronic pain syndrome) fell outside of the MIG. In Ali v. Ferozuddin and Certas Direct Insurance Company (FSCO A13-002459 and A13-002460, March 23, 2016) and Patel v. TD General Insurance Company (FSCO A15-002293, April 10, 2017) FSCO expressly found that chronic pain syndrome was not a “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation, including any clinically associated sequelae to such an injury” as that phrase was legally interpreted, and therefore was a diagnosis outside of the MIG. Like an Adjustment Disorder, Post-Traumatic Stress Disorder, or other psychological condition arising from involvement in a motor vehicle accident, Chronic Pain Syndrome is a subjective condition that is recognized as requiring treatment outside of the MIG and its monetary cap. Thus, it would appear that to find that chronic pain sufferers are essentially trapped within the MIG absent a reading down of the phrase “clinically associated sequelae” is absolutely unnecessary, given the case law that exists on the subject. While claimants are required to establish a diagnosis of chronic pain syndrome to access benefits outside of the MIG, the burden of proof always rests on an insured to prove that he or she fits within the scope of coverage. Therefore, the MIG cannot be said to discriminate against an identifiable group based on an enumerated or analogous ground.
Second, the Arbitrator’s finding that the need for a documented pre-existing condition violated section 15 of the Charter because it discriminated against people without a doctor, people without access to OHIP, people who had asymptomatic pre-existing conditions, or people who were involved in a motor vehicle accident shortly before the provision came into effect appears to have been based largely on conjecture. Dr. Getahun’s evidence that he “not infrequently” encountered patients who had pre-existing asymptomatic conditions but did not have pre-accident documentation confirming a pathology lacked any empirical support, and was arguably anecdotal. As such, it should not have been given the seemingly significant weight that it was.
Third, the Arbitrator’s conclusion that the need for a documented pre-existing condition was unconstitutional failed to indicate how this restriction discriminated against an identifiable group based on an enumerated or analogous ground. Both Martin and Taypotat make it clear that even if a statutory provision resulted in differential treatment between a claimant and others on the basis of one or more personal characteristics, this differential treatment would have to be on the basis of one or more of the enumerated and analogous grounds protected under section 15 of the Charter for there to be a finding of unconstitutionality. Arguably, the Arbitrator’s reasons provided no reference to evidence that the challenged provision discriminated specifically against people with a particular type of physical or mental disability, which is an enumerated ground. While the Arbitrator found the provision to be discriminatory against “people without a doctor, people without access to OHIP, people who had asymptomatic pre-existing conditions, or people who were involved in a motor vehicle accident shortly before the provision came into effect”, these are arguably not enumerated or analogous grounds. While the argument could be made that individuals with asymptomatic pre-existing conditions are an identifiable group that are discriminated against by the challenged provision, these individuals did not suffer from a pre-accident disability by nature of the fact that their conditions were asymptomatic and untreated. They therefore cannot be compared to other individuals with pre-accident disabilities. Should these individuals be more susceptible to developing Chronic Pain Syndrome, as Dr. Getahun’s evidence implied, they would have recourse to benefits outside of the MIG along with all other Chronic Pain Syndrome sufferers.
Ultimately, it remains to be seen whether this decision will be appealed and how successful such an appeal might be, where the evidence upon which the arbitrator relied was uncontradicted. In the interim, despite the fact that it is of limited precedential effect this decision will certainly feature prominently in claims where benefits have been denied based on the MIG, and are challenged based on alleged chronic pain or of pre-existing but asymptomatic conditions.