D. P. v. Chieftain Insurance, 2017 CanLII 147726

Licence Appeal Tribunal

Tribunal File Number: 17-007909/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:

D. P.

Applicant

and

Chieftain Insurance

Respondent

DECISION

PANEL:

Cezary Paluch, Adjudicator

Lindsay Lake, Adjudicator

APPEARANCES:

For the Applicant:

Frank Van Dyke, Counsel

For the Respondent:

Jocelyn Tatebe, Counsel

HEARING IN-PERSON:

August 7 and 8, 2018 (Belleville, Ontario)

OVERVIEW

1The applicant, D.P., was injured in an automobile accident on January 30, 2017 (“the accident”) when her vehicle was involved in a chain reaction collision while stopped at an intersection. D.P. was able to exit her vehicle unassisted.¹ She was assessed at the scene but did not attend the hospital as she needed to return home to her 25-year old severely autistic son. She drove her vehicle home despite it sustaining $5,386.04 in damages.

2Later, D.P. sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Chieftain Insurance (“Chieftain”). Chieftain approved some benefits, but denied others because it determined that all of the D.P.’s injuries fit the definition of “minor injury” as prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“the MIG”).²

3As a result, D.P. appealed the denials to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) and the matter proceeded to an in-person hearing on August 7 and 8, 2018.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Did D.P. sustain predominately minor injuries as defined under the Schedule?

(ii) If the answer to issue (i) above is “no,” then we must determine the following issues:

(a) Is D.P. entitled to receive a medical benefit in the amount of $1,593.73 for occupational therapy services recommended by Swanson Occupational Therapists, in a treatment plan that was submitted on June 15, 2017, and denied by Chieftain on August 2, 2017?

(b) Is D.P. entitled to receive a medical benefit in the amount of $810.00 for chiropractic services recommended by Clements Chiropractic, in a treatment plan that was submitted on May 3, 2017, and denied by Chieftain on May 9, 2017?

(iii) Is D.P. entitled to an income replacement benefit (IRB) in the amount of $341.96 per week for the period of October 6, 2017 to date and ongoing?

(iv) Is D.P. entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before us, we find that:

(i) D.P. did not sustain predominately minor injuries as defined under the Schedule;

(ii) D.P. is entitled to both treatment plans, one for occupational therapy and the other for chiropractic services;

(iii) D.P. is not entitled to IRBs for the period of October 6, 2017 to date and ongoing; and

(iv) D.P. is entitled to any interest on any amounts incurred for the issues in dispute to date.

PROCEDURAL ISSUES

6At the start of the hearing, Chieftain objected to written submissions filed by D.P. in advance of the hearing on the basis such submissions were not contemplated in the Tribunal’s March 7, 2018 Order. D.P. agreed to withdraw the submissions and Chieftain withdrew its objection.

7Chieftain also requested that the Independent Medical Examination Report by Dr.Gavin L. Shanks, dated April 26, 2018,³ be excluded as evidence, a request we ultimately denied. Chieftain argued that accepting the report would violate the “deemed undertaking rule” as set out in Rule 30.1.01(3) of the Rules of Civil Procedure.⁴ Although the D.P. was only made aware that Chieftain was seeking to exclude Dr. Shanks’ report at the start of the hearing,⁵ D.P. was able to obtain written consent to use Dr. Shanks’ report at the hearing.⁶

8In the end, although we did not place much reliance upon Dr. Shanks’ report for the reasons set out below, we accepted Dr. Shank’s report as evidence. The Tribunal is concerned about procedural fairness to allow each party to present their case fully and completely.⁷ The best evidence reasonably available should, as in all matters, inform the Tribunal’s decision in arriving at its decision.

ANALYSIS

Did D.P. sustain predominately minor injuries as defined under the Schedule?

(a) The Minor Injury Guideline (“MIG”)

9The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “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.” The terms, “strain,” “sprain,” “subluxation,” and, “whiplash associated disorder,” are defined in the Schedule.

10The onus is on D.P. to show that her injuries fall outside of the MIG.⁸ In this case, D.P. argues that she should be removed from the MIG because she had a pre-existing condition, sustained psychological injuries as a result of the accident and/or suffers from chronic pain.

11We find that D.P. suffers from chronic pain and find her impairment more serious than a “minor injury” for the reasons that follow.

(b) Chronic Pain

12D.P. argues that her chronic pain removes her from the MIG as chronic pain is not listed as a minor injury in the Schedule or in the MIG. D.P. argues that the MIG was not intended to deal with chronic pain as “clinically associated sequelae” from a minor injury because, if chronic pain was intended to be dealt with under the MIG, it would be listed as a specific condition or injury in the Schedule.

13D.P. relies upon the decisions of Ali and Ferozuddin v. Certas Direct Insurance Company,⁹ and Arruda v. Western Assurance Co.¹⁰ where the applicant was taken out of the MIG based on a diagnosis of chronic pain from a certified chronic pain physician and evidence of functional impairment and severe disability.

14D.P. also submitted 17-002624 v Aviva Insurance Canada,¹¹ wherein the adjudicator relied upon the evidence of the family physician, the expert evidence of the physiatrist who specialized in pain management, and the evidence of the insured person who experienced limitations in her activities of daily living from ongoing pain, to remove the insured from the MIG.

15Chieftain acknowledges that D.P. may be removed from the MIG for chronic pain, but argues that this is not a “blanket” removal and, in this case, self-reported difficulties with housekeeping and caregiving should be accorded no weight in the MIG determination.¹² Chieftain also argues it would be contrary to the decision of 16-001387 v Aviva Insurance Company of Canada¹³ to take into consideration D.P’s functional limitations in determining whether chronic pain removes her from the MIG. This decision, however, is of little assistance to Chieftain as the adjudicator in that case did not make a determination on the applicant being taken out of the MIG for chronic pain.

16Chieftain relied upon two other decisions, 16-001997 v Aviva Insurance¹⁴ and 17-004519 v Certas Home and Auto Insurance Company,¹⁵ to support its argument that D.P. should not be removed from the MIG for chronic pain because there has been no formal chronic pain diagnosis. In 16-001997, the adjudicator declined to remove the applicant from the MIG on the basis of chronic pain because, as Chieftain argues, there was no definitive chronic pain diagnosis made by the applicant’s orthopaedic surgeon. In 17-004519, the adjudicator did not remove the applicant from the MIG because the applicant had not met the onus of showing that he suffered from chronic pain syndrome as a result of the accident. The adjudicator in this decision relied upon T.S. v. Aviva Insurance Company,¹⁶ which has been partially overturned following reconsideration on the issue of whether or not the applicant’s injuries were part of the definition of “minor injury” as defined by the Schedule.¹⁷

17Chieftain has also relied upon the decision of A.K. v Aviva Insurance Canada,¹⁸ to support its position that pain lasting beyond six months does not automatically remove D.P. from the MIG. However, this decision directly opposes Chieftain’s argument that functional impairment should not be considered in determining chronic pain, as the adjudicator in that case stated, “I find that A.K. has not provided compelling medical evidence that her pain causes functional impairment in her home or work life, that the pain is continuous and severe of that it can only be made bearable with treatment.”¹⁹ Furthermore, the adjudicator in that decision noted that a formal diagnosis of chronic pain or a report from a specialist is not required to escape the MIG but did require, “something more compelling,” than the applicant’s self-reporting.²⁰

18Although not binding, we agree with the decisions relied upon by D.P. and the decision of A.K. v Aviva submitted by Chieftain. We do not find that any on-going pain, at any level, automatically takes an applicant out of the MIG. Typically, ongoing pain also must be of a significant level or accompanied by some functional impairment or disability. Further, for chronic pain to be more than sequelae from the soft tissues injuries enumerated in section 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering, distress or is accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.

19We also agree with Chieftain’s position that D.P. has not been diagnosed with chronic pain syndrome. We do not agree with D.P.’s submissions that Dr. Townley testified and reported that that D.P. has developed a chronic pain syndrome; on the contrary, Dr. Townley’s report stated, “it is likely that she [D.P.] has developed a chronic pain syndrome.”²¹ Dr. Townley testified that D.P. likely developed chronic pain syndrome and used the word “likely” in his report because chronic pain was not his area of expertise. Nonetheless, a diagnosis of chronic pain syndrome is not necessary to remove an applicant from the MIG.²²

20Dr. Marchuk testified that chronic pain is pain that lasts beyond six months and acknowledged that D.P. could very well have developed chronic pain. On re-examination, Dr. Marchuk explained that there is some overlap between chronic pain and chronic pain syndrome, but chronic pain syndrome requires psychological issues, abuse of prescription drugs, usually an underlying disease such as fibromyalgia or arthritis, and that chronic pain syndrome should be diagnosed by a multidisciplinary team.

21D.P. testified in a credible and trustworthy manner and was forthright about her use of non-medically prescribed Percocet for the pain in her left shoulder. D.P. was consistent in reporting this use to Dr. Townley, Dr. Shanks, Ms. Pullen and Mr. Drinkwater. While Chieftain attempted to characterize such use as “street drugs,” we find this evidence very persuasive in proving that D.P. suffers from significant levels of chronic pain as she was misusing medication that was not prescribed for her up until at least two months prior to the hearing.

22Chieftain also attempted to discredit D.P.’s pain complaints, arguing that D.P. only visited her family doctor four times after the accident during the period of February 7, 2017 to March 12, 2018. Chieftain argues that this lack of post-accident visits is inconsistent with the number of visits that one would expect of an individual with D.P’s level of self-reported pain. Supporting this position as well, Chieftain argues that D.P. has not exhausted treatment under the MIG limits.²³ We disagree. Chieftain’s position completely ignores D.P.’s reality of daily living, which includes arranging supervision and care for her severely autistic son.

23D.P. has been consistent with her pain complaints and that they remained ongoing, even at the hearing, which is well beyond six months of the accident. D.P. testified and reported to several of the medical witnesses that she is unable to sleep for longer than three hours per night due to pain since the accident. D.P. also testified that she was still taking medication (Tramadol) for her pain. D.P. reported pain to Dr. Townley and to Mr. Drinkwater throughout her assessments, as well as to Dr. Marchuk²⁴ and to Ms. Pullen,²⁵ and even as late as March 12, 2018 reported to her family doctor, Dr. Waring, that her shoulder was “still in a lot of pain.”

24Chieftain argues that, even if the Tribunal accepts that D.P. has established that she suffers from chronic pain, which we do accept, that D.P.’s chronic pain is sequalae of her predominant injury, namely her left shoulder pain, and not chronic pain syndrome. We disagree based on the decisions relied upon by D.P. because for chronic pain to be more than sequelae from an applicant’s soft tissues injuries, it can be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering, distress or is accompanied by functional impairment or disability.

25D.P. has been consistent in reporting her levels of pain, which evidences her suffering and continuous distress. She reported a pain range of 6/10 to 8/10 in her left shoulder that could increase to 10/10 to Dr. Shanks, Dr. Diviney, Dr. Townley, Dr. Waring, Dr. O’Connor and to Dr. Marchuk.²⁶ D.P. also reported similar levels of pain to the same medical professionals in her left neck, mid and upper back, left arm pain and left side chest pain. D.P. also reported headaches at a pain level of 7/10 to Dr. Marchuk.²⁷

26D.P. has also been consistent with reporting the distress and functional limitations that her pain is causing. Prior the accident, D.P. testified that she jogged every day, went to a gym once or twice a week, she cooked a charity Christmas dinner every year, she worked with children with autism and was very social. After the accident, D.P. testified that she has not gone to the gym, she walks now (but not on a daily basis) and she was unsuccessful in attempting to help with the charity Christmas dinner. D.P. also testified that since the accident she is unable to vacuum, do dishes and go grocery shopping for more than a few items and she relies upon her mother to assist her with these household duties. D.P. also relies upon her mother for assistance with dressing. D.P. also testified that she suffers from fatigue, headaches and a decline in her mood which she describes as “depressed.” D.P. also self-reported to Mr. Beatty that she is socially isolating herself because of the difficulties she encounters with self-grooming.

27D.P. made similar reports of her difficulties and limitations to care for herself and her inability to complete housework tasks to Dr. Townley,²⁸ Dr. Shanks,²⁹ Ms. Pullen,³⁰ Mr. Beatty and Dr. O’Connor. Mr. Drinkwater even testified that, due to D.P’s limitations, she was unable to participate in a large portion of the functional testing because of her inability to complete the tasks. Additionally, both Mr. Beatty’s occupational therapy assessment³¹ and Dr. O’Connor’s report describe D.P.’s functional limitations in completing her self-care and household tasks.³²

28D.P. has also been consistent in her testimony and in her self-reporting of her limitations regarding the care of her son. Prior to the accident, D.P. was able to care for her autistic son who requires 24-hour supervision as a result of his severe limitations which were detailed at the hearing. Since the accident, D.P. has had to rely upon her mother and ex-spouse to provide care for her son. She also testified that she is financially unable to pay for outside agencies to assist in her son’s caregiving as she is not working.

29For all of the reasons set out above, we find that D.P. has met her burden of proving on a balance of probabilities that she did not sustain a minor injury as defined in the Schedule as a result of the accident because she suffers from chronic pain. We also find that D.P.’s chronic pain is not sequelae from her soft tissues injuries. D.P. has proven that her pain has been continuous since the accident and it is of a severity that it is causing her suffering and distress that is accompanied by substantial functional impairments. As a result, we find that D.P. is removed from the MIG.

(c) Pre-existing Condition and Psychological Impairment

30Having determined that D.P.’s impairments sustained in the accident are not predominantly minor injuries, there is no need to consider if a pre-existing injury or a psychological impairment also removes her from the MIG.

31Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

32D.P. bears the onus of proving her entitlement to the claimed occupational therapy services and chiropractic services are reasonable and necessary on a balance of probabilities.³³

(a) Treatment and Assessment Plan – Occupational Therapy Services

33We find that D.P. has met her onus in proving on a balance of probabilities that the treatment plan dated June 15, 2017 is both reasonable and necessary.

34This treatment plan in dispute was completed by Ms. Chantal Pullen, occupational therapist, and was for an in-home occupational therapy assessment and proposes funding for an initial assessment, for completion of an OCF-23 and OCF-18, documentation, support activity and travel time and mileage. The goals of the treatment plan are, “occupational therapy in-home assessment to determine [the applicant’s] current level of functioning and make appropriate recommendations as needed,” and, “to determine [the applicant’s] current level of functioning in her activities of daily living and make appropriate recommendations as needed.”

35D.P. argues that the treatment plan is reasonable and necessary relaying upon Ms. Pullen’s In-Home Functional and Attendance Care Needs Assessment Report, dated March 9, 2018, which appears to be the report that D.P. was seeking funding for in the OCF-18 dated June 15, 2017.

36In this report, Ms. Pullen recommends eight sessions of occupational therapy for the acquisition of strategies to facilitate re-engagement of daily living, including personal care and housekeeping tasks, and the acquisition of strategies related to pacing for everyday tasks. The report recommends assistance for hair care and other personal grooming due to D.P.’s left shoulder impairments.

37D.P.’s mother also testified that she assists D.P. with dressing and other household chores.

38Chieftain argues that the treatment plan at issue is not reasonable or necessary because there was no supplementary evidence attached to the OCF-18 in dispute. Chieftain also argues that Ms. Pullen’s report was not based on upon any documentary review and only based on interviews and D.P.’s self-reports.³⁴ Further, Chieftain claims that Ms. Pullen’s primary recommendations are for housekeeping and caregiving, neither of which are available to D.P. by a lack of optional benefits for housekeeping and D.P.’s election of IRBs in lieu of caregiving.

39We find that D.P. has met her onus of proving that the proposed treatment plan is reasonable and necessary on a balance of probabilities because the treatment plan proposed an in-home assessment for occupational therapy services and Ms. Pullen concluded that D.P. required such services in her report. This evidence is consistent with D.P.’s mother’s testimony that she assists D.P. not only with dressing but also with other household chores. We do not agree that the “primary recommendation” of Ms. Pullen’s report is for housekeeping and childcare as argued by Chieftain. Ms. Pullen’s report makes four recommendations, which include housekeeping and childcare, but there is no indication if any one of these recommendations takes priority over another. Finally, it is clear that the assessment met the stated goals of the treatment plan, which was to determine D.P.’s level of functioning in her activities of daily living and to make appropriate recommendations.

(b) Treatment and Assessment Plan – Chiropractic Services

40We find that D.P. has met her onus in proving on a balance of probabilities that the treatment and assessment plan dated May 3, 2017 is reasonable and necessary.

41This treatment plan in dispute was completed by Mr. Dave Clements and was for manipulation, spinal vertebra (15 sessions), documentation, support activity and a total body assessment. The goals of the treatment plan are pain reduction, return to activities of normal living and return to pre-accident work activities. D.P. relies upon the decision of Dominic Violi v. General Accident Assurance Co. of Canada,³⁵ for the position that pain relief, in and of itself, can be a legitimate medical and rehabilitative goal, and therefore reasonable and necessary, even if it does not promotes recovery.³⁶

42D.P. further relies upon Dr. Townley’s report wherein he indicates that D.P. requires further rehabilitation to have future use of her left arm. D.P. also relies upon Dr. Shanks’ report wherein he states that she may benefit from additional hands on treatment such as physiotherapy, chiropractic or massage therapy; however, Dr. Shanks continued and stated that he, “would leave institution of any such hands on treatment to the recommendation of either a chronic pain specialist or a chronic pain management team.”³⁷

43Chieftain argues that D.P. has not provided any evidence in addition to the treatment plan in dispute that the chiropractic treatment is reasonable and necessary. Chieftain argues that Dr. Waring, Dr. Townley and Dr. Marchuk all support further active physiotherapy and exercise for D.P. as opposed to passive treatment.

44Chieftain relies upon the decision of 16-000691 v Unifund Assurance Company³⁸ where the adjudicator did not find that the applicant established that passive treatment would assist in recovery more than home exercises under the supervision of a family doctor. This case is distinguishable on the facts, however, as the applicant in 16-000691 was regularly visiting his family doctor and was meeting exercise goals of 150 minutes per week. There is no indication or medical documentation in this case that home exercise under the supervision of a family doctor would have equal benefit to D.P. or would be a suitable alternative to the chiropractic services sought.

45In Dr. Sandra O’Connor’s June 14, 2017 IE assessment, D.P. reported to her that she began chiropractic care and her symptoms have improved by fifty to sixty percent.³⁹ D.P. also relied upon Dr. O’Connor’s report, arguing that she does not indicate that the treatment plan for chiropractic care was not reasonable and necessary. We do not elevate Dr. O’Connor’s statement that her opinion was, “deferred pending review of the recent radiographs and ultrasound investigations,” to the opinion that the treatment plan was reasonable and necessary.

46Nevertheless, while Chieftain asked us to rely upon the decision of 17-000835 v Aviva General Insurance,⁴⁰ the decision assists D.P., as the adjudicator stated, “the applicant’s own words in examination interviews are powerful evidence in determining…whether treatment and assessment plans are reasonable and necessary.”⁴¹ In this case, D.P. testified that chiropractic care was assisting her more than physiotherapy and this is consistent with her self-reports to Dr. O’Connor. We give her words significant weight.

47We find that, on a balance of probabilities, D.P. has met her onus in proving the reasonableness and necessity of the treatment plan dated May 3, 2017, as the uncontradicted words of D.P. are “powerful evidence” to us that chiropractic services were assisting her with her symptoms. Furthermore, while the onus never shifts to that of Chieftain to disprove an entitlement to benefits, Chieftain had no medical documentation refuting the treatment plan as Dr. O’Connor deferred her opinion.

Income Replacement Benefits (IRBs)

48Based on the evidence before us, we do not find that D.P. is entitled to IRBs for the period of October 6, 2017 to date and ongoing.

49D.P. is seeking IRBs within 104 weeks of the accident. The test for eligibility to receive IRBs within 104 weeks of the accident is set out in section 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident.

50IRBs were paid to D.P. in the amount of $341.96 per week, from January 30, 2017 to October 6, 2017. Chieftain terminated the IRB on the basis that D.P. did not suffer a substantial inability to do the essential tasks of her employment. Therefore, D.P. bears the burden of proving on a balance of probabilities that she is entitled to IRBs for the period from October 6, 2017 to date and ongoing.

51It is undisputed that at the time of the accident, D.P. was employed on a full-time basis (44 hours per week) at a call centre in a customer service role, for approximately four months prior to the accident.

52Having reviewed the employer confirmation form (OCF-2) dated April 11, 2017, D.P.’s testimony and self-reports in various documents, we find that the following are the essential tasks of D.P.’s pre-accident employment:

(i) sitting for long periods of time;

(ii) telephone use (receiving calls) to provide advice to customer service including trouble-shooting and making sales inquiries; and

(iii) computer keyboard work/typing/mouse use requiring finger movements and repetition for long periods of time, quite possibly the majority of her work day.

53D.P. testified that she cannot return to her pre-accident employment as she has very little use of her left arm and is required to type throughout the day, which requires both hands. She also testified that she would likely have absentee problems and not be reliable given her fatigue, depression, frequent crying and headaches. It is also undisputed that D.P. did not attempt a return to work and no evidence was before us about the availability of modified duties or workplace accommodations.

54D.P. relies upon Dr. Townley’s report placing significant emphasis on his findings that she had an extremely limited range of motion in her shoulder. D.P. argues that Dr. Townley’s opinion was that she was “unemployable.”⁴² We do not place as much weight on Dr. Townley’s report as it is quite limited in its comments concerning D.P.’s employability. For example, the only comments in Dr. Townley’s report are that D.P., “has not worked since the accident because of her injuries,”⁴³ and, “because of her ongoing neck and left shoulder pain, [D.P.] is unable to work.”⁴⁴ Furthermore, Dr. Townley conceded in cross-examination that he did not have access to D.P.’s employment file or any other documents from her pre-accident employer, he did not communicate with anyone from the pre-accident employer, he did not know how many hours D.P. worked each week beyond “full-time,” he did not know if any modified duties were available to D.P. and he did not know what type of phone D.P. used in her work. Of most importance, Dr. Townley testified that, although he was aware that there are different tests for the purposes of IRBs verses a tort claim, he testified that his report “speaks for itself” when asked if he answered the specific question of the substantial inability test for entitlement to IRBs in his report.

55D.P. also relies upon Dr. Shanks’ reported opinion that D.P. was unfit for her regular or any other employment as a result of decreased left upper extremity function resulting from pain and from fear of further injury.⁴⁵ Further, D.P. highlights Dr. Shanks’ opinion that her soft tissue neck and shoulders injuries and continuing myofascial pain results in an impairment of the left upper extremity function which interferes with some aspects of working at a call centre.⁴⁶

56Although D.P. argues that Dr. Shanks’ report should be preferred as he completed an up-to-date review of the applicant’s medical documents, we agree with Chieftain that Dr. Shanks’ report, like Dr. Townley’s, does not address the correct test for entitlement to IRBs.

57D.P. also relies upon Ms. Pullen’s report where Ms. Pullen found that D.P. suffered memory and attention problems, severe neck disabilities, kinesophobia and marked limitation in the left shoulder with all movements. Ms. Pullen reported, “as her pre-accident job required bilateral hand activity, [D.P.] would have been limited in her ability to participate in work tasks (such as computer/telephone work).”⁴⁷ The difficulty in relying upon Ms. Pullen’s reporting is Ms. Pullen’s use of the words, “would have been” – this phrase is not conclusive and, again, Ms. Pullen does not address the correct test for entitlement to IRBs.

58D.P. also sought to rely upon an OCF-18 dated June 15, 2017, completed by Ms. Pullen, a Disability Certificate (OCF-3), dated May 15, 2017, completed by D.S. Clements (chiropractor) and an OCF-3 dated February 16, 2016, completed by N. Thakker (physiotherapist). We give no weight to these documents as they all pre-date the period in dispute and the OCF-3s both indicate an anticipated duration of D.P.’s disability that ends prior to the period in dispute for which D.P. is seeking entitlement to IRBs.

59D.P. also appears to be relying upon Mr. Drinkwater’s testimony even though her submissions state, “Mr. Drinkwater ultimately conceded that he is not in a position to express an opinion in relation to [D.P.’s] employability,”⁴⁸ and argues that Mr. Drinkwater’s report and testimony should be disregarded as his results were invalid.⁴⁹ D.P. argues that once Mr. Drinkwater was pressed, he admitted that if one accepted that D.P. has difficulty using her left shoulder and hand that she would be unable to do her pre-accident employment which required continuous typing. We do not agree that this was the question that was put to Mr. Drinkwater. Mr. Drinkwater was asked if he accepts that D.P. has limited use of her left shoulder and left hand, that it would have an effect on her ability to type. Mr. Drinkwater agreed and said that it was, “related to a diagnosable impairment, if you accept it.” Mr. Drinkwater also limited his testimony, as the purpose of his report was to ascertain the physical demands that D.P. experienced in the workplace. Mr. Drinkwater agreed during cross-examination that he could not comment on D.P.’s employability.

60D.P. also relied upon 17-001822 v Aviva Insurance Canada⁵⁰ for the proposition that, in that decision, “the applicant’s condition, pain symptoms and fatigue had resulted in a deconditioning reduced endurance and decreased focus,” and, “the [a]pplicant’s impairments decreased her ability to work as well as her competitive advantage and employability.”⁵¹ Again, this case is of little assistance to D.P. because there was evidence in that case that the applicant’s impairments affected her ability to perform the essential tasks, both physical and cognitive, of the applicant’s pre-accident employment. Here, in contrast, there are only general comments as to D.P.’s employability from Dr. Townley and Dr. Shanks and Ms. Pullen’s non-conclusive statement.

61For all of the above reasons, we find that D.P. has not met her burden of providing on a balance of probabilities that she was substantially unable to perform the tasks of her employment from October 6, 2017 to present such that she would be entitled to IRBs.

Interest

62D.P. claims entitlement to interest in overdue payments pursuant to section 51 of the Schedule. Chieftain takes the position that no interest is payable if the medical benefit was not incurred by D.P. D.P. made no reply submissions to refute Chieftain’s position on her claim for interest.

63As such, D.P. is entitled to any interest on any amounts incurred to-date for the issues in dispute pursuant to section 51 of the Schedule.

CONCLUSION

64For the reasons outlined above, we find:

(i) D.P. did not sustain predominately minor injuries as defined under the Schedule;

(ii) D.P. is entitled to a treatment plan for occupational therapy services in the amount of $1,593.73;

(iii) D. P. is entitled to a treatment plan for chiropractic services in the amount of $810.00;

(iv) D.P. is not entitled to IRBs for the period of October 6, 2017 to date and ongoing; and

(v) D.P. is entitled to any interest on any amounts incurred to-date for the issues in dispute pursuant to section 51 of the Schedule.

Footnotes

1. 1Orthopaedic Assessment by J. Townley dated January 11, 2018, Plaintiff’s Document Brief, tab 2, page 4 (“Dr. Townley’s report”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Plaintiff’s Document Brief, tab 3 (“Dr. Shanks’ report”).
4. 4R.R.O. 1990, Reg. 194. Rule 30.1.01(3) states: all parties and their lawyers are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
5. 5Chieftain maintained that it brought a notice of motion to exclude Dr. Shanks’ report; however, upon further questioning from the Tribunal, Chieftain confirmed that it only sent a letter to the Tribunal and to D.P.’s counsel dated July 24, 2018. This letter, however, did not state that Chieftain was seeking to exclude Dr. Shanks’ report.
6. 6An email was tendered as evidence from Ms. Michelle Doody, defence counsel in the related tort action, to D.P.’s counsel dated August 7, 2018, which provided consent use Dr. Shanks’ report for the hearing (Exhibit #3).
7. 7See Rule 3.1 of the Tribunal’s Common Rules of Practice & Procedure (the “Rules”).
8. 8Scarlett v. Belair, 2015 ONSC 3635, para. 24 (Div. Ct.).
9. 9FSCO A13-002459 and FSCO A13-002460.
10. 10FSCO A13-003926.
11. 112018 CanLII 13183 (ON LAT).
12. 12Written Closing Submissions of the Respondent, page 17, para. 79.
13. 132017 CanLII 12598 (ON LAT) (“16-001387”).
14. 142017 CanLII 33668 (ON LAT) (“16-001997”).
15. 152018 CanLII 61152 (ON LAT) (“17-004519”).
16. 162017 CanLII 59495 (ON LAT).
17. 17T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT).
18. 18Unreported, May 23, 2018, Tribunal File No. 17-006159/AABS (“A.K. v Aviva”).
19. 19Ibid. at para. 11.
20. 20Ibid. at para. 14. Chieftain also relied upon R.K. v Aviva Insurance Canada (Unreported, May 23, 2018, Tribunal File No. 17-006157/AABS) where the adjudicator made substantially similar findings and comments as in A.K. v Aviva.
21. 21Dr. Townley’s Report, supra note 1, page 8.
22. 22See note 20 above.
23. 23Written Closing Submissions of the Respondent, page 4, para. 20.
24. 24Physiatry Assessment Report by Dr. Yuri Marhcuk, dated September 12, 2017, Respondent’s Document Brief, tab 38, page 5 (“Dr. Marchuk’s report”).
25. 25Occupational Therapy In-Home Functional and Attendant Care Needs Assessment Report by Ms. Chantal Pullen, dated March 9, 2018, Plaintiff’s Document Brief, tab 4, page 3 (“Ms. Pullen’s report”).
26. 26Dr. Shanks’ report, supra note 3, pages 6-7; Attending Physician’s Statement - Short Term Disability Claim by Dr. Laurie Deviney, dated June 3, 2018, Plaintiff’s Document Brief, tab 13; Dr. Townley’s report, supra note 1, page 5; Clinical Notes and Records of Dr. Steven Waring, Plaintiff’s Document Brief, tab 18, March 6, 2017 entry; Chiropractic Assessment Report by Dr. Sandra O’Connor, Respondent’s Document Brief, tab 35; Dr. Marchuk’s report, supra note 24, pages 5-6
27. 27Dr. Marchuk’s report, supra note 24, pages 5-6.
28. 28Dr. Townley’s report, supra note 1, pages 6-7.
29. 29Dr. Shanks’ report, supra note 3, page 4.
30. 30Ms. Pullen’s report, supra note 25, pages 5-7.
31. 31Occupational Therapy MIG Screen Report by Mr. Joseph Beatty, dated February 16, 2017, Plaintiff’s Document Brief, tab 10 (“Mr. Beatty’s report”).
32. 32Chiropractic Assessment Report by Dr. Sandra O’Connor, Respondent’s Document Brief, tab 35, pages 3 and 5 (“Dr. O’Connor’s report”).
33. 33Scarlett v. Belair Ins. Co., supra note 10, paras. 20-24.
34. 34Written Closing Submissions of the Respondent, page 19, para. 90.
35. 35FSCO A98-000670.
36. 36Ibid. at page 6.
37. 37Dr. Shank’s report, supra note 3, page 22.
38. 382017 CanLII 5853 (ON LAT) (“16-000691”).
39. 39Dr. O’Connor’s report, supra note 32, page 4.
40. 402017 CanLII 56795 (ON LAT), reversed on reconsideration, 2018 CanLII 83520 (ON LAT).
41. 41Ibid. at para. 21.
42. 42Written Submissions of the Applicant, page 19, para. 56.
43. 43Dr. Townley’s report, supra note 1, page 6.
44. 44Ibid. at page 8.
45. 45Dr. Shanks’ report, supra note 3, page 23.
46. 46Ibid. at page 22.
47. 47Ms. Pullen’s report, supra note 25, page 8.
48. 48Written Submissions of the Applicant, page 5, para. 13.
49. 49Ibid. at page 21, para. 61.
50. 502017 CanLII 85204 (ON LAT).
51. 51Written Submissions of the Applicant, pages 15-16, para. 45.