N. E. v. Waterloo Regional Municipalities Insurance Pool, 2016 CanLII 96169

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: December 9, 2016
Tribunal File Number: 16-000066/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:

N. E.
Applicant

and

Waterloo Regional Municipalities Insurance Pool
Respondent

REASONS FOR DECISION

Order made by: Ruth Gottfried
Date of Order: December 9, 2016

OVERVIEW:

1The Applicant was injured in a motor vehicle accident on September 17, 2015. He applied for and received income replacement benefits as well as medical and rehabilitation benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the "Schedule").

2The Respondent, Waterloo Regional Municipalities Insurance Pool ("Waterloo") approved benefits for the Applicant until the expenditure reached the maximum of $3,500 allowable for treatment of predominantly minor injuries under s. 18(1) of the Schedule. Waterloo denied treatment plans submitted subsequent to reaching that maximum. Waterloo also obtained a medical assessment under section 44 of the Schedule dated March 3, 2016 performed by Dr. Tonya Ballard, a physiatrist, in which she opined that the Applicant's impairments were predominately minor injuries as defined in s. 3 of the Schedule and treatment of them was governed by the Minor Injury Guideline (the "Guideline")¹.

3The Applicant's position is that he continues to suffer a substantial inability to perform the essential duties of his employment and without access to further treatment outside of the Guideline he will be unable to fully recover to his pre-accident condition.

4The Applicant has been receiving income replacement benefits in the amount of $250.43 weekly since on or about September 23, 2015. He disputes the amount of these benefits.

ISSUES:

5The following are the issues in this Application²:

a. Is the applicant entitled to an amount of income replacement benefits ("IRB") different from the $250.43 weekly he has been receiving?³

b. Has the Applicant sustained predominantly minor injuries as defined under the Schedule as a result of the motor vehicle accident of September 17, 2015?

c. If it is determined that the Applicant did not suffer predominantly minor injuries, is Waterloo liable to pay:

a. $5,141.30 for chiropractic services recommended by Spinetec Healthcare Solutions ("Spinetec") in a Treatment and Assessment Plan ("OCF-18") submitted to Waterloo on September 23, 2015;

b. $225.62 for chiropractic services recommended by Spinetec in an OCF-18 submitted to Waterloo on January 12, 2016;

c. $2,902.30 for physiotherapy services recommended by Spinetec in an OCF-18 submitted to Waterloo on January 22, 2016;

d. $84.00 for a bus pass submitted by invoice to Waterloo on February 2, 2016?

RESULT:

6I find on all the evidence:

a. Insufficient evidence was produced to make any determination to vary the amount of IRB;

b. the Applicant suffered predominantly minor injuries as defined by the Schedule; and

c. Waterloo is not liable to pay the three treatment plans submitted or the invoice for the bus pass.

EVIDENCE:

Evidence Relating to Medical Issues

7On September 17, 2015, the Applicant was riding his bicycle when he collided with a transit bus making a turn directly in front of him. He was taken by paramedics to the hospital. No hospital records have been submitted into evidence.

8On October 6, 2015 the Applicant attended at an urgent care facility complaining of back pain. The attending doctor remarked in his notes that the Applicant had a previous injury (noted in Dr. Ballard's section 44 assessment as a car accident) when he was 12 years old but there had been complete resolution with no sequelae.

9Dr. David Onoja referred the Applicant for a Thoracic Spine MRI, which was conducted on March 9, 2016. The Applicant did not submit any evidence regarding any treatment or consultation provided by Dr. Onoja. The legal representative for the Applicant opined on the findings of the MRI, suggesting that "lack of spinous process [as noted in the MRI] could be from a form of Spina Bifada as a child, but yet the evidence of the origin of the lack of spinous processes is inconclusive." In this case, instead of the opinion of the Applicant's representative, medical expert opinion or evidence would have been of assistance. I can give no weight to the legal representative's opinion.

10The Applicant's legal representative also submitted that "we have found that in many claims, injuries that fall within the sub-acute category, can and will become chronic if not addressed and treated…". Again there was no evidence to support that assertion.

11Dr. Joseph Paton, Chiropractor, of Spinetec Healthcare Solutions ("Spinetec") signed and submitted the OCFs in dispute and made brief comments on the Applicant's medical condition on these forms. The Applicant's injuries were described as acute sprain and strain of his thoracic spine and lumbar spine with initial sprain and strain to his right elbow and tendons and ligaments in his right arm. Subsequent OCFs state that his arm injuries have resolved.

12The Applicant also submitted clinical notes from Spinetec from February 19, 2016 up to and including July 27, 2016. I found that the notes for the visits were brief, sometimes cryptic, and often illegible. No other clinical notes, records, reports or medical opinions were submitted in support of the Applicant's position.

13The Applicant submits that his injuries have gone from acute to sub-acute injuries and that he now suffers from chronic pain. No medical evidence was provided to support this position.

14The Applicant asserts that the OCF document system "is the only way for claimants to effectively communicate with their insurer" and he had no alternative but to rely on this system because lack of funding restricted his ability to "obtain independent assessments to speak to the Insurer's Examination Reports".

15Waterloo submitted that they agreed with the statement that the OCF document system was the primary method for communication between the claimant and their insurer, and in their submissions engaged in a review of some of the discrepancies and inconsistencies of the OCFs submitted.

16The OCF system is an effective means of communication but it is designed to be augmented by supporting documentation. Indeed, there are printed instructions throughout the forms requesting the health care provider to explain and provide evidence supporting their opinion or comments. The health care provider is instructed to "send any attachments directly to the Insurer."

17While the OCF may be the only vehicle for communication, a claimant has many opportunities to submit to the insurer, and this Tribunal, evidence that can support a claim in addition to the OCF. These choices are available even for claimants with limited funds, as the Applicant submits he is. I do not purport to provide an exhaustive list, however evidence can be submitted to support a variety of claims in the form of clinical notes and records from treating physicians, consultation reports from medical referrals, employers' records, government documentation, correspondence, photographs as well as copies of emails, texts and social media accounts. The onus is on the claimant to prove their position and to use all available methods to do so.

Evidence Relating to Income Replacement Benefits

18It is agreed by the parties that the Applicant received an IRB subsequent to the accident. Waterloo submitted a report by Matson Driscoll & Damico Ltd. ("MDD") dated January 19, 2016 calculating the quantum of the IRB available to the Applicant. In addition to its findings MDD requested additional information from the Applicant to provide a more accurate analysis. The MDD report references a report that the Applicant allegedly commissioned from Durrani & Associates dated December 24, 2015 ("Durrani") to determine the amount of the IRB. The Durrani report has not been submitted in evidence. There are no income related documents before me other than the MDD report.

POSITIONS OF THE PARTIES:

The Applicant's Position:

19The Applicant's position is that he cannot be expected to recover from his injuries and return to work if additional treatment outside of the Guideline is "reasonably requested and documented, yet denied".

20Further he questions how "someone can suffer a substantial inability to perform the essential duties of his employment, yet be told that that their injuries fall within the Guideline".

21The Applicant proposes that the following "vital" question must be answered:

Is it reasonable and rational and within the intent of the SABS to acknowledge that an insured suffers from a substantial inability to perform the essential tasks of their employment yet be denied medical treatment to recover from the substantial inabilities? We submit that a relationship must exist between the Minor Injury Guideline and the payment of Income Replacement Benefits that ensures that the goal of the SABS in trying to achieve recovery of the claimant to pre-MVA medical condition happens.

22The Applicant contends that he has discharged the onus of proof in this case by providing compelling evidence that his injuries do not come within the Guideline.

The Respondent's Position:

23Waterloo asserts that there is nothing in the legislation that supports that the payment of an IRB is relevant to a consideration of whether the applicant has suffered minor injuries.

24Waterloo further asserts that the insured bears the onus of providing compelling evidence that must be in relation to a pre-existing medical condition that was documented by a health practitioner before the accident in order to establish that benefits outside the Guideline are available to him.

25Waterloo relies on a report obtained under section 44 of the Schedule from a physiatrist, Dr. Tonya Ballard. The original report was dated March 3, 2016, and three addendum reports were also prepared: the first dated June 1, 2016 and the second and third dated July 27, 2016. Dr. Ballard's consistent opinion was that the Applicant's impairments were predominately minor injuries and fell within the Guideline.

26In the July addendums Dr. Ballard offered a subsequent opinion that the Applicant did not suffer from a substantial inability to engage in the essential tasks of his pre-accident employment.

THE LAW:

27The term "minor injury" is defined in section 3(1) of the Schedule as "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

28Section 18(2) of the Schedule states that the limit of $3,500 for benefits referred to in Section 18(1) does not apply to an insured "…if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident…"

29The Guideline provides that "compelling evidence should be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

30The Guideline goes on to state:

Only in extremely limited instances where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition will prevent a person from achieving maximal recovery from the minor injury for the reasons described above is the person's impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline. [emphasis added]

ANALYSIS:

31The evidence submitted by both parties at the hearing was documentary and I have considered all submissions.

32With regard to the amount of IRB the Applicant submits that the "end result" of the findings of his own hired accountant and those submitted by Waterloo's forensic accountant was that he [the Applicant] "was to receive $250.43 per week". As no submissions were made to vary that amount, I cannot make a finding to change it.

33To succeed in an application to be taken out of the Guideline the Applicant must show that his injuries are not minor. He may do this in one of two ways. He may show that the severity of his injuries is such that it causes them to fall outside the definition of minor injuries in the Schedule. Or, if his injuries are not of such severity, he must provide compelling medical evidence that he suffered a pre-existing condition that would result in an inability to recover within the treatment limits of the Guidelines

34Despite the heartfelt sentiment put forward by the Applicant's representative that a "relationship must exist" between the Guideline and entitlement to IRB, I agree with counsel for Waterloo that the legislation does not support that conclusion. An insured's ability to engage in the essential tasks of his or her pre-accident employment must be substantiated on a separate and different basis than whether or not the insured has sustained a minor injury.

35Further, the Applicant has not submitted evidence to contradict Dr. Ballard's opinion that he (the Applicant) is able to engage in the essential tasks of his pre-accident employment. Although Dr. Paton's notes were submitted I gave less weight to them than Dr. Ballard's for the reasons stated in paragraph 12 above as well as the fact that they did not specifically address either the ability of the Applicant to perform the essential tasks his employment or the medical reasons for bringing the Applicant out of the Guideline.

36The Applicant's injuries have been listed by Dr. Paton as strains or sprains – injuries that fall squarely under the section 3(1) definition of the term "minor injury". The next step in the analysis is whether or not the Applicant suffers from a pre-existing condition that would prevent him from achieving maximum medical improvement if subject to the Guideline limit of $3,500.00 for treatment.

37In the OCF-18 dated January 22, 2016 Dr. Paton refers to G.E.R.D.⁴ as the only pre-existing condition from which the Applicant suffers. No evidence has been submitted from any source that would indicate this condition could be a barrier to recovery.

38It was suggested by the Applicant in his submissions that he might develop chronic pain. However, again, no medical evidence was submitted to support this suggestion.

39Both parties submitted case law in support of their positions. The Applicant relied on Scarlett and Belair⁵ to address the issue of compelling evidence. He quotes Justice Gordon in stating… "that whether the evidence in a particular case is sufficient to meet the test of "compelling" must be determined on the facts of each individual case having regard to what is reasonable in all of the circumstances." [original emphasis in the Applicant's submissions]

40The Applicant goes on to state:

We submit that it is not reasonable to consider someone to have a substantial inability to perform the essential tasks of their employment, yet not provide them with medical benefits to recover from their substantial inability.

41Respectfully, I believe that the Applicant's representative has misinterpreted both Justice Gordon's decision and the law. While I agree that compelling evidence must be determined on the individual facts of each case, the compelling evidence referred to in the legislation⁶ is medical evidence of a pre-existing condition, which has not been produced in this case.

42Waterloo relied on Adjudicator Huberman's decision in Qasami and State Farm⁷ to put forward the fact that the burden of proof to establish entitlement to the appropriate level of benefits under section 18 of the Schedule rests with the insured. I agree with that position and find that the Applicant did not meet that burden.

43In the Applicant's submission dated August 29, 2016 on page 5, I find that he has answered the burden of proof issue himself by stating:

We suggest that the evidence presented in this claim to be considered compelling, and while it may not prove the claimant had a pre-existing condition it does prove that the Applicant's injuries should fall outside of the Minor Injury Guideline. [emphasis added]

44The Applicant also relied on Somerville and State Farm⁸, putting forward Arbitrator Rogers' statement that "[t]he consumer protection objective dictates an approach to interpreting the Schedule." However, Arbitrator Rogers goes on to qualify that "[t]he consumer protection objective does not create rights not found in the Schedule." [emphasis added]

45I agree with Arbitrator Rogers and also find that the consumer protection objective does not create rights. I do not accept the Applicant's argument that a relationship must exist between the determination of minor injuries and the payment of income replacement benefits. At this time these issues are discrete in the legislation. I cannot create a causal link of eligibility for two benefits that is not explicit in the legislation.

CONCLUSION:

46I cannot make a finding on the issue of whether $250.43 weekly is the correct amount for income replacement benefits for the Applicant as no evidence was submitted by either party to either support or vary this amount.

47An applicant may succeed in an application to be taken out of the Guideline in one of two ways: either by the severity of his injuries, or by producing compelling medical evidence of a pre-existing condition that would result in an inability to recover within the treatment limits of the Guideline. In this application, the Applicant has done neither.

48Having reviewed all of the evidence submitted by both parties I find that the Applicant sustained predominantly minor injuries as defined under the Schedule as a result of the motor vehicle accident of September 17, 2015 for the following reasons:

a. The Applicant's injuries were characterized by his treating practitioner as sprains and strains, which fall under the Guideline.

b. The Applicant did not provide compelling evidence that he had a pre-existing medical condition that was documented by a health practitioner before the accident that would prevent him from achieving maximal recovery if he was subject to the $3500 limit or limited to the goods and services authorized under the Schedule.

49As the Applicant did not meet the burden of proof required to determine that he did not suffer predominantly minor injuries I find that Waterloo is not liable to pay:

a. $5,141.30 for chiropractic services recommended by Spinetec Healthcare Solutions ("Spinetec") in a treatment plan ("OCF-18") submitted to Waterloo on September 23, 2015;

b. $225.62 for chiropractic services recommended by Spinetec in an OCF-18 submitted to Waterloo on January 12, 2016;

c. $2,902.30 for physiotherapy services recommended by Spinetec in an OCF-18 submitted to Waterloo on January 22, 2016; and

d. $84.00 for a bus pass submitted by invoice to Waterloo on February 2, 2016.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal dismisses the Applicant's appeal.

Footnotes

1. 1Superintendent's Guideline No. 02/10 Financial Services Commission of Ontario June 2010
2. 2The parties listed the issues differently from each other and neither matched the issues as laid out in the initiating Application to the Tribunal. I have listed the issues as those designated in the Application.
3. 3The issue of whether the Applicant was entitled to income replacement benefits was not before me.
4. 4Defined as a chronic digestive disease (Gastroesophageal reflux disease) http://www.mayoclinic.org/diseases-conditions/gerd/basics/definition/con-20025201
5. 5Scarlett v Belair Insurance, 2015 ONSC 3635
6. 6Section 18(2) of the Schedule
7. 7Mohammed Qasami and State Farm Mutual Automobile Insurance, FSCO A13-007829
8. 8Somerville and State Farm, FSCO A12-006767