Arbitrator Rules MIG Cap of $3,500 for chronic pain resulting from car accidents violates Section 1 and 15 of the Charter - Abyan v. Sovereign

September 19, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Abdirahman Abyan and Sovereign General Insurance

Date of Decision: September 14, 2017
Heard Before: Arbitrator Benjamin Drory

MIG: Charter Challenge on MIG; MIG violates sec 1 and sec 15 of charter in consideration of chronic pain

Mr. Abyan was injured in a car accident (MVA – motor vehicle accident) on June 19, 2015. He sought benefits from Sovereign however when a dispute arose Mr. Abyan applied for mediation at the FSCO.

Issues:

1. Sections 3 of the Schedule (the definition of ‘minor injury’) and 18(2) are unconstitutional, as infringing upon section 15(1) of the Canadian Charter of Rights and Freedoms on the basis of physical ability. The infringements are not justifiable under section 1 of the Charter.
2. The definition of ‘clinically associated sequelae’ in the definition of ‘minor injury’ in s. 3 of the Schedule is interpreted to exclude individuals who suffer from chronic pain among the sequelae to the injury.
3. The provision ‘that was documented by a health practitioner before the accident’ in section 18(2) of the Schedule and also in section 2 of the Superintendent’s Guideline No. 01/14 (‘Minor Injury Guideline’) is severed.

The issue before the tribunal is whether Mr. Abyan is entitled to $1,995.32 for a psychological assessment and whether he is entitled to a Special Award because Sovereign unreasonable delayed payments. The applicability of the MIG as a defence to Mr. Abyan’s case is also in issue.

Mr. Abyan challenges the constitutionality of the MIG, and submits this is not the first time a case has come before a tribunal respecting the constitutionality of the legislation. He refers to Supreme Court of Canada Decisions in Martin (Nova Scotia (WCB) v. Martin, [2003] S.C.R. 504, 2003 SCC 54), Conway, and Cuddy Chicks. Mr. Abyan submits that per Cuddy Chicks the applicability of the decision is strictly limited to this particular case.

Mr. Alban submitted that in constitutional litigation, it is incumbent upon the applicant to demonstrate firstly that a Charter right has been infringed, and then upon the government to justify the infringements under s. 1 of the Charter. Mr. Abyan noted that no one was present on behalf of the Government, and all parties agreed this was unfortunate. The Insurer and the Government had been served with proper notice of the Hearing on the constitutional question and had not appeared to present argument.

Mr. Abyan submitted he required ongoing medical treatment. Pursuant to the Schedule medical and rehab benefits would flow if the applicant demonstrated they are reasonable and necessary. The benefits sought by Mr. Abyan would be payable up to a limit of $65,000 including attendant care benefits however, the MIG creates an exception to this limiting the benefit to $3,500.

Mr. Abyan presented his history. He is 51, working full time as a taxi driver at the time of the accident. Two days post accident Mr. Abyan was x-rayed and had several spinal and cervical spine injuries and a degenerative disease of the lower spine was noted. Sovereign turned down the request for a psychological assessment noting the MIG applied in this case.

Two years post accident x-rays showed osteoarthritis of the knees, multi-level disc disease of the spine, along with other issues. Mr. Abyan now suffers chronic neck pain which have not resolved within the expected time for uncomplicated soft tissue injuries. His physician opined that the injuries are consistent with chronic pain and this precludes achieving maximum recovery under the MIG. He now suffers chronic pain along with major depression, poor sleep, restricted motion in back and neck.

The Arbitrator reviewed the medical evidence provided by Mr. Abyan, and accepted that testimony of Dr. G as and expert orthopaedic surgeon practicing in surgery and chronic pain. The Arbitrator requested Dr. G to elaborate on his understanding of what ‘clinically associated sequelae’ means. Dr. G said that ‘clinically associated sequelae’ is anything that is a following sequel of’ in the natural course of recovery from treatment of an injury. In Mr. Abyan’s case his injuries were to his knee and neck, and he had a WAD/whiplash injury which was projected to resolve in 3 months.

Dr. G indicated chronic pain starts with stimuli, and that it is a maladaptive behavior to pain. He testified that even if the patient recovers from the original injury, a patient can still be left with chronic pain which is devastating and recalcitrant, a sustained a progressive illness of the whole person. The focus of treatment is on management, not care, and is always multi disciplinary. In his expert opinion, chronic pain cannot be treated with $3,500.

Mr. Abyan then submitted that section 15(1) of the Charter provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Mr. Abyan submits that Section 18 of the schedule draws discriminatory distinctions that have the effect of perpetuating arbitrary disadvantage in denying the medical and rehab benefits necessary for recovery. He submits that the Schedule fails to respond to his actual capacity and denies him benefits in ways that perpetuate or exacerbate his disadvantage based on physical disability as enumerated in s. 15 of the Charter.

Mr. Abyan argues that in 2014 the phrase ‘documented by a health practitioner before an accident’ was added to the MIG. It was not a part of the original version enacted in 2010 and no justification is given in the Guidelines for it. He argues that for individuals like him, who have un-documented pre-existing conditions, are prevented from taking advantage of the exception of exceeding the $3,500 limit. The provision also prevents those without doctors or OHIP or those injured before the MIG went into effect from accessing the exception to the exception.

Mr. Abyan seeks two separate Orders

1. To strike down or sever part of s 18(1) of the Schedule so it is not inconsistent with the Charter, and
2. To strike down or sever the requirement that pre-existing impairments be documented in physician records before an accident.

Mr. Abyan argues that although the government is entitled to make rules or take away rights, but that all accident victims must be subject equally to the rules. Mr. Abyan then submitted several cases that have been before the Supreme Court of Canada resulting in reinvention of the analytical framework to s. 15. He also argues that the MIG violates sec. 7 of the Charter.

The Court has noted a trend towards more substantive equality than formal equality. The analysis is a two step one which considers:

1. Does the impugned law ‘create a distinction on the basis of an enumerated ground’.
2. The second stage of analysis focuses on:

…focuses on arbitrary – or discriminatory-disadvantage, that is whether the impugned law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing or perpetuating that disadvantage.

Mr. Abyan submits that his case is very similar to the Supreme Court’s Martin (Nova Scotia (WCB) v. Martin, [2003] S.C.R. 504, 2003 SCC 54) decision where the Court held Nova Scotia’s statutory worker’s compensation scheme violated sec 15 of the Charter in providing only short-term benefits to sufferers from work-related chronic pain.

Mr. Abyan reviewed the Charter rights in sec. 1 thoroughly for the court. He submits that in the present case, all that can be identified as the purpose for the MIG is within the MIG itself. The government must show that the MIG minimally impaired rights to meet its objectives, and that the MIG makes no effort to take into account the actual individual capacities of applicants as required by Martin (Nova Scotia (WCB) v. Martin, [2003] S.C.R. 504, 2003 SCC 54). This could be achieved by allowing individualized assessment. Regardless of cost, individualized assessment as chosen by chronic pain sufferers is necessary to bring law into line with the Charter.

The Arbitrator reviewed the law and previous cases to determine whether the tribunal has jurisdiction to consider Charter issues. He was satisfied it does.

The Arbitrator then reviewed the evidence, the Schedule, the MIG, and the Charter.  He found that the MIG does not violate section 7 of the Charter. The Arbitrator noted Section 7 prohibits inappropriate actions by government in the course of matters that affect the life, liberty or security of the person or individuals.

The Arbitrator was not satisfied the MIG constitutes direct government action as it is a set of rules for how benefits should be paid out and the government does not ‘act’ in this capacity.

The Arbitrator then reviewed section 15. He found the arguments in Martin (Nova Scotia (WCB) v. Martin, [2003] S.C.R. 504, 2003 SCC 54) to be compelling and directly applicable to the present case both with respect to section 15 and section 1.

The Arbitrator is satisfied that chronic pain is a debilitating condition that is poorly understood. It is a whole person impairment encompassing physical and mental impairment. The Supreme Court in Martin acknowledged that chronic pain had no physical manifestations and these is no accepted method of diagnosis or treatment. The Supreme Court found in Martin that distinguishing injured workers with chronic pain from those without was a disability – based distinction, on the ground of ‘physical disability’ and expressly enumerated ground in s. 15(1) of the Charter.

The Arbitrator then reviewed the MIG, Schedule and the Superintendent’s Guidelines in detail. He noted that while ‘minor injury’ is defined, ‘clinically associated sequalae’ are not defined in the Schedule, nor in the Superintendent’s Guidelines. This results in individuals who suffer chronic pain resulting from a sequel from a car accident being caught in the MIG and being suject to the $3,500 cap. The Supreme Court has made clear that substantive equality covers indirect as well as direct discrimination and leads to the invalidity of a law that is discriminatory in its effect. The Arbitrator is satisfied that the effect of the MIG arbitrarily discriminates against car accident victims who suffer chronic pain as a clinically associated sequela to the accident, in ways that those who don’t suffer from chronic pain resulting form a car accident do not.

The Arbitrator also concurred with Mr. Abyan’s argument that the phrase ‘that was documented by a health practitioner before the accident’ has a discriminatory effect as well.

On this basis, the MIG violates section 15 of the charter.

The Arbitrator then noted that since neither the Insurance company, nor the government were represented he would consider whether the limitations on the insureds’ rights are demonstrably justifiable in accordance with section 1 of the Charter.

He began by reviewing the Supreme Court decision in Martin, and noted that the MIG does not minimally impair the rights of individuals who suffer chronic pain as clinically associated sequelae of a car accident. It therefore is in violation of section 1. The wording ‘that was documented by a health practitioner before the accident’ in the MIG is a violation as well, and it is also not justified under section 1.

On this basis, the Arbitrator found that in the case of ‘clinically associated sequlae’ which captures accident victims who suffer chronic pain arising from a car accident the MIG should exclude them. The Arbitrator ruled that chronic pain cannot be treated within the $3,500 MIG cap.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.