M.K. v. Dumfries Mutual Insurance Company, 2017 CanLII 15834

Date: 2017-03-10

Tribunal File Number: 16-000501/AABS

Case Name: 16-000501 v Dumfries Mutual Insurance Company

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:

M.K.

Applicant

and

Dumfries Mutual Insurance Company

Respondent

DECISION AND ORDER

Adjudicator: Jeanie Theoharis

Written Submissions by:

Counsel for the Applicant: Muhammad M. Alam

Counsel for the Respondent: Lisa Armstrong and Julianne Brimfield

Heard in writing: October 17, 2016

Overview

1. M.K. (the “Applicant”) was injured in an automobile accident on March 4, 2014. The automobile was insured by Dumfries Mutual Insurance Company (the “Respondent”).

2. The Applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) pursuant to section 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, (the “Schedule”).

3. The parties were unable to resolve their dispute at case conferences held on August 2, 2016, and August 19, 2016, and the matter proceeded to a written hearing. All submissions and evidence were filed with the Tribunal by October 13, 2016. A review of those documents forms the basis of this decision.

Background

4. On March 4, 2014, the Applicant was injured in a motor vehicle accident. She was seat-belted in the driver’s seat when her vehicle was struck on the front driver’s side corner. Her vehicle went into a snowbank and stopped. She was not taken to the hospital from the scene of the accident, but was picked up by her brother and taken home.

5. On March 6, 2014, the Applicant went to see her family physician, Dr.. Nguyen. She complained of back, neck, arm, left leg pain and headaches. The family physician diagnosed her with multiple myofascial sprains, referred her for physiotherapy, and sent her for x-rays of her cervical and lumbar spine.

6. On March 7, 2014, the Applicant attended at the Centennial Rehab Centre for an assessment. Treatment was recommended, and the Respondent approved treatment within the Minor Injury Guideline (the “MIG”). A total of $3,500.00 has been paid in medical/rehabilitation benefits.

7. According to the Employer’s Confirmation Form (OCF-2), the Applicant was working on a full time basis as dishwasher / prep cook at a retirement home in, Ontario at the time of the accident.

8. The Applicant applied for and received an income replacement benefit for the period from March 11, 2014, to May 26, 2014. The total amount paid for income replacement benefits is $4,685.68. The benefit ended as of May 27, 2014

9. The Applicant submits that:

i. the Respondent made procedural errors in denying the Applicant’s income replacement benefits;

ii. she is eligible to receive income replacement benefits;

iii. her injuries are not minor as defined in the Schedule and fall outside of the Minor Injury Guideline (the “MIG”); and,

iv. the claimed treatments and examinations are reasonable and necessary.

10. The Respondent submits:

i. they made no procedural errors when denying the Applicant income replacement benefits;

ii. the Applicant is not eligible to receive income replacement benefits;

iii. the Applicant’s injuries are minor, and her entitlement to benefits is defined by the MIG; and,

iv. the claimed treatments and examinations are not reasonable and necessary.

Issues in Dispute

11. The issues in dispute are:

i. Is the Applicant entitled to receive income replacement benefits in the amount of $342.84 per week from May 27, 2014, to March 11, 2016?

ii. Is the Applicant entitled to receive medical benefits recommended by the following treatment plans from Centennial Rehabilitation Centre for physiotherapy services:

a) Treatment plan dated March 10, 2014, in the amount of $1,300.00?

b) Treatment plan dated July 25, 2014, in the amount of $1,000.00?

c) Treatment plan dated September 25, 2015, in the amount of $1,747.98?

d) Treatment plan dated February 8, 2016, in the amount of $1,475.95?

iii. Is the Applicant entitled to receive payment for the costs of the following assessments recommended by Dr. Jon Mills of Pearson Medical Assessment Centre:

a) Treatment and Assessment plan for an in-home assessment in the amount of $1,318.00, as detailed in a treatment plan dated October 14, 2014?

b) Treatment and Assessment plan for a psychological assessment in the amount of $1,974.63, as detailed in a treatment plan dated December 7, 2014?

c) Treatment and Assessment plan for a functional ability evaluation in the amount of $1,345.95, as detailed in a treatment plan dated November 2, 2015?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

v. Is either party entitled to costs under to Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016)?

vi. Is the Applicant entitled to an award under s. 10 of O. Reg. 664 because the Respondent unreasonably withheld or delayed payments to the Applicant?

Result

12. Having reviewed the evidence I find as follows:

i. The Applicant is not entitled to income replacement benefits.

ii. The Applicant is not entitled to the cost of the above-described treatment plans.

iii. The Applicant is not entitled to the costs of the above-described assessments.

iv. The Applicant is not entitled to interest on any overdue payment of benefits.

v. Neither party is entitled to costs.

vi. The Applicant is not entitled to an award under s. 10 of O. Reg. 664.

Income Replacement Benefits Background

13. Shortly after the motor vehicle accident, the Applicant applied for income replacement benefits from the Respondent. The Respondent, via letter dated April 2, 2014, advised the Applicant that she was entitled to income replacement benefits in the amount of $400.00 per week commencing one week post-accident on March 11, 2014. The Respondent paid the Applicant a total amount of $4,685.68 in income replacement benefits for the period from March 11, 2014, to May 26, 2014.

14. On or about April 23, 2014, the Respondent wrote to the Applicant requesting she submit to an examination under s. 44 of the Schedule to determine her continued entitlement to income replacement benefits. The assessment was scheduled for May 12, 2014, at 10:00 a.m. for one hour.

15. On May 12, 2014, Dr. Bereznick, a chiropractor, examined the Applicant. Dr. Bereznick’s report, dated May 19, 2014, was provided to the Respondent and the Applicant on May 26, 2014. The same day, the Respondent wrote to the Applicant informing her that Dr. Bereznick had concluded she was no longer eligible to receive income replacement benefits, and the Respondent would cease paying the benefit on May 26, 2014.

16. The Applicant alleges the Respondent

i. failed to comply with s. 37(6)(d) of the Schedule by not providing the Applicant with sufficient notice that her income replacement benefits would end on May 26, 2014;

ii. failed to comply with s. 37(5) of the Schedule by not providing a copy of the s. 44 report to the doctor who completed the disability certificate (OCF-3); and

iii. misdirected the Applicant to apply to the Financial Services Commission of Ontario (“FSCO”) by an invalid notice dated May 26, 2014 that did not inform the Applicant she could appeal the Respondent’s denial to this Tribunal.

17. For the reasons which follow, I find that the Respondent made no procedural errors when denying the income replacement benefits.

Did the Respondent fail to comply with s. 37(6)(d) of the Schedule by not providing the Applicant with sufficient notice that her income replacement benefits would end on May 26, 2014?

18. The Applicant submits the Respondent acted unfairly, unreasonably, and in bad faith by providing only one days’ notice it was stopping her income replacement benefits. The Applicant argues she had a reasonable expectation of a longer notice period if the benefits were stopped. The Applicant submits that she has suffered “incomprehensible losses.”

19. Section 37(6)(d) of the Schedule requires the Respondent to provide the Applicant with a notice of determination. The required notice must include: the benefits the Respondent agrees or refuses to pay; the medical, and any other reasons for the Respondent’s decision; and if the benefit is being terminated, the date payment of the benefit will be stopped. The notice of determination must be provided to the Applicant within 10 business days after the Respondent receives the s. 44 assessment report.

20. I find that the Respondent has complied with s. 37(6)(d). The section does not require a specified period of notice to an insured when terminating a benefit. All s. 37(6)(d) requires is that the notice of determination be provided to the Applicant within 10 days of receipt of the s. 44 assessment report by the Respondent.

21. The Respondent received Dr. Bereznick’s report on May 26, 2014, and on that same day the Respondent delivered to the Applicant a copy of the report along with the notice of determination dated May 26, 2014, well within the 10 day requirement of s. 37(6) (d). The letter informed the Applicant that her entitlement to income replacement benefits would end on May 27, 2014 because in Dr. Bereznick’s opinion she “does not suffer a substantial inability to engage in the essential tasks of her employment position that she was engaged in prior to the date of loss.”

22. The Applicant submitted no evidence of the “incomprehensible losses” she claims were caused by the alleged short notice. Her assertion of loss alone is insufficient to support a claim that the Respondent acted unfairly, unreasonably, or in bad faith. Particularly when the Respondent did what was required of them by the Schedule.

23. When the Applicant received the s. 44 examination request on April 23, she was put on notice that her continue eligibility for the income replacement benefit was in question. The Respondent made its determination to stop the benefit without delay, and informed the Applicant within a day of receiving the doctor’s report.

24. Section 37(6)(d) of the Schedule does not require the Respondent to give any more notice to the Applicant of the stoppage of her income replacement benefit than they did, only to inform her of their decision within 10 days of receiving the s. 44 report. The Respondent complied with its obligations under the Schedule, and did not act unfairly, unreasonably, or in bad faith.

Did the Respondent fail to comply with s. 37(5) of the Schedule by not providing a copy of the s. 44 report to the doctor who completed the disability certificate (OCF-3)?

25. Sections 37(5) and 37(1) of the Schedule must be read together. Section 37(1) of the Schedule provides that an insurer may choose to determine an insured’s continuing entitlement to a benefit by requesting:

(i) a new disability certificate;

(ii) the insured attend a s. 44 examination; or

(iii) both a new disability certificate and a s. 44 examination

26. A disability certificate was completed by Dr. Ushma Patel, chiropractor, and was provided to the Respondent on or about March 10, 2014. The disability certificate stated the Applicant was substantially unable to perform the essential tasks of her employment because of the accident, and that she would not be able to return to work. The disability certificate stated the Applicant had “difficulties with bending, lifting, reaching, carrying, prolonged standing, and walking,” and noted that the Applicant’s activity limitations would likely be resolved within 9-12 weeks. The Applicant started receiving income replacement benefits on March 11, 2014.

27. On April 23, 2014, the Respondent requested the Applicant attend a s. 44 examination instead of requesting a second disability certificate to determine the Applicant’s ongoing eligibility for the income replacement benefit, as was its choice under s. 37(1) of the Schedule.

28. Section 37(5) of the Schedule requires an insurer to deliver a copy of the s. 44 examination report to the insured person, which the Respondent did on May 26, 2014.

29. Section 37(5) only requires an insurer deliver a s.44 report to the person who completed the disability certificate “if one was provided in accordance with subsection (1).” The Respondent did not request a second disability certificate, and so was not obligated to send a copy of the s. 44 report to Dr. Patel.

30. I find that the Respondent has complied with the requirements of s. 37(5).

Did the Respondent misdirect the Applicant to apply to FSCO by an invalid notice that did not inform the Applicant she could appeal the Respondent’s denial to this Tribunal?

31. The Applicant claims that the Respondent’s May 26, 2014, letter terminating her income replacement benefit misdirected her to apply to FSCO to dispute the denial. The Applicant notes that FSCO ceased accepting applications as of April 1, 2016.

32. The parties agree that the May 26, 2014 letter advised the Applicant to apply to FSCO if she wished to dispute the denial, and the Respondent does not contest that a document attached to the letter did not include information about dispute resolution services at the LAT.

33. I find that the Respondent made no error in directing the Applicant to FSCO. At the time of the May 2014 letter all accident benefits disputes in Ontario were required to begin with mediation at FSCO, and this Tribunal did not exist. By the time the Applicant decided to dispute the Respondent’s denial, responsibility for adjudicating accident benefits disputes had transferred to the LAT, which is where the Applicant filed her appeal.

34. Having found no procedural errors by the Respondent, I will consider whether the Applicant is eligible to receive income replacement benefits.

Eligibility to Receive Income Replacement Benefits

35. Based on a review of all the evidence before me, I find that the Applicant does not meet the eligibility test for income replacement benefits.

36. Eligibility for income replacement benefits for the first 104 weeks post-accident is found in s. 5(1) of the Schedule. To be eligible for income replacement benefits an insured person must: (i) be employed at the time of the accident; and, (ii) as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

37. The income replacement benefit is payable during the time the insured person suffers a substantial inability to perform the essential tasks of her employment and the benefit is not available for the first week of disability.

Employment at time of Accident

38. At the time of the accident, the Applicant was employed at, a retirement home. Her job title is variously described as a personal support worker (2014 application for accident benefits), cook (Disability Certificate), or precook (Dr. Bereznick’s s. 44 assessment). The Employer’s Confirmation Form of March 19, 2014, describes her position as dishwasher / prep cook, and the essential job task as “washing dishes for 165 residents”.

Essential tasks of her employment

39. The Applicant’s employment records were not presented to establish the Applicant’s essential tasks of her employment. However, the Applicant advised Dr. Bereznick that she worked in the kitchen at, and that the position requires bending, lifting, and the preparation of food. The Employer’s Confirmation Form notes that the Applicant’s essential tasks are to wash dishes.

40. I find that these are the essential tasks of the Applicant’s employment.

Substantial inability to perform the essential tasks of that employment

41. Having reviewed the evidence I find that the Applicant has not established that she is substantially unable to perform the essential tasks of her employment.

42. The Applicant’s health practitioners determined that the Applicant was able to return to work and made the following recommendations to that effect:

i. By letter dated May 2, 2014, Dr. Ushma Patel, the Applicant’s chiropractor, determined that the Applicant may “return to work on modified duties beginning May 20, 2014, due to the nature of these injuries. [The Applicant] has been advised to rest from performing regular work duties such as lifting, carrying and bending for prolonged periods.”

ii. On May 25, 2014, the Applicant’s family physician, Dr. Nguyen, noted that the Applicant “is feeling much better. She may get back to work on a light-only job for 1 month and then will be reassessed.”

iii. The Minor Injury Treatment Discharge Report dated June 2, 2014, and completed by Dr. Ushma Patel, indicates that the Applicant’s functional status as of June 2, 2014, was that she would be able to do her pre-accident work activities on a modified level.

Credibility of the Applicant

43. In arbitration hearings and Applicant’s credibility is vital, particularly when there is competing medical opinions. The best way to assess a witness’ credibility is to test the witness’ evidence for internal consistency, and consistency with known facts, and the facts that establish the case.

Applicant’s April 3, 2014 statement

44. The Applicant signed a statement dated April 3, 2014, which detailed her functionality on April 3, 2014. In the statement the Applicant asserted that all she was able “to do is to drive to my daughter’s school to pick her up and bring her home. My headache, shoulder pain and back pain are so bad today that I can’t do anything else. I have read the above ¾ page and it is true and accurate to the best of my knowledge.”

Surveillance evidence

45. The Respondent conducted surveillance of the Applicant on April 3 and 4, 2014. I reviewed the surveillance recordings. The Applicant submits that the entire surveillance should not be relied upon because portions of it are not clear. I do not agree.

46. I agree that portions of the video surveillance are not clear, in particular when the video is captured through a window. I did not consider the report or the video during these instances. However, when the video was clear and there were no obstructions between the videographer and the Applicant, I accept the video in how it portrays the Applicant’s movement throughout the days when surveillance was conducted, and take that in comparison to what the Applicant reported regarding her capabilities.

47. The portions of the surveillance relied upon by Dr. Bereznick were clear, the resolution was good, and there were no obstructions between the Applicant and the camera. I accept that Dr. Bereznick was able to view the surveillance and address his conclusions in his addendum report.

Inconsistency between the April 3, 2014, statement and surveillance evidence

48. I note the contradiction between what the video portrays and the Applicant’s self-reporting statement dated April 3, 2014.

49. A review of the surveillance video, read together with the surveillance report for April 3, 2014, indicates the Applicant’s capabilities were not as restricting as the Applicant noted. The video clearly shows that the Applicant made many trips with her vehicle that day. She was active from approximately 7:50 a.m. to 1:30 p.m., and from 4:30 p.m. to 5:30 p.m. Throughout the day the video captures her entering and exiting from her vehicle multiple times, attending to see an acquaintance, going to a fitness gym, putting fuel in her vehicle, going grocery shopping twice at Food Basics, attending a Walmart with her daughter, going to a car rental business, and picking up a female from a public school. The video also shows the Applicant walking, ascending and descending stairs, and carrying groceries.

50. Based on the surveillance report, I find that the April 3, 2014, statement is unreliable and place no weight to it.

Dr. David Bereznick, chiropractor

51. Dr. Bereznick conducted an examination of the Applicant at the Respondent’s request. He assessed the Applicant on May 12, 2014, for the express purpose of determining if the Applicant would be eligible for income replacement benefits. The Applicant indicated to him that she is able to stand so that she can cut and prepare the food for the residents. She also expressed that she is experiencing headaches and has lower back pain that is worse “by such activities as vacuuming, ascending, or descending stairs, carrying groceries or water, rapid walking or bringing laundry down to the basement.” The Applicant explained that her neck pain had cleared up approximately one month ago.

52. Dr. Bereznick thereafter went to conduct a physical examination of the Applicant. He noted that her “static postural evaluation revealed no clinically abnormal spinal curves, muscular atrophy or mechanical aberrations.” Moreover, the Applicant’s “gait was observed to be normal. Tandem gait was unremarkable. There was no swelling, discolouration, osseous deformity or muscular atrophy noted involving either of [the Applicant’s] upper or lower extremities attributable to acute trauma.” The Applicant was able to conduct cervical ranges of motion and shoulder ranges of motion “as full throughout all of the orthopaedic planes with no mention of pain or discomfort.”

53. Dr. Bereznick did note during his physical examination of the Applicant that the Applicant was engaging in a self-limiting manner when demonstrating her lumbar ranges of motion. “She was showing a loss of lumbar extension by approximately 70 percent. Although she was essentially preserving lumbar flexion, she was minimizing hip flexion during forward bending.” Moreover, he noted that the Applicant “reported experiencing lower back pain throughout all of the orthopaedic planes including simulated lumbar axial left and right twisting where there is virtually no additional provocation to the lumbar spine.”

54. Moreover, when the Applicant conducted a right straight leg raising reach it was noted at approximately 60 degrees from the examination table, however, when distracted, the Applicant “demonstrated an approximate 90 degree straight leg raise bilaterally with no mention of pain or discomfort.” Dr. Bereznick’s addendum report reviewed a portion of the surveillance conducted on the Applicant on April 4, 2014, at approximately 8:28:45. During this time, the Applicant was shown to be at the free weight area of the gym and engaged in various exercises, including for instance lunges/knee bends, shoulder, and arm exercises. In particular, the Applicant is in a standing position, and bends at the waist with her hands falling toward her ankles.

55. The doctor opined that based on the Applicant’s position when conducting a particular exercise, the Applicant “demonstrates under her own volition a measured bilateral straight leg raise of 110 degrees. Hence the left straight leg raise that was limited during the physical assessment was not valid. That is, there is no nerve root tension.” Also he notes that the Applicant “is observed demonstrating under her own volition full lumbar and hip flexion.”

56. The doctor also observed the surveillance on April 4, 2014, at 8:28:51 and the Applicant is “holding two dumbbells. This additional load adds further resistance to lumbar extension.” His initial observation that the Applicant is “minimizing hip flexion while preserving lumbar flexion during forward bending on the physical examination is not valid.” He opined, after review of the surveillance that the Applicant’s “general lumbar function is within normal limits.”

57. Dr. Bereznick noted three possible findings of limitations relating to the Applicant’s straight leg raise, lumbar extension and her ability to bend forward. However, the totality of the physical examination “contained no valid signs of injury” and was “unrevealing in terms of valid signs of musculoskeletal, orthopaedic or neurological injury. He was of the opinion that there were signs of self-imposed limitation, inconsistencies and signs of non-organic pain.” Based on his assessment and documentation review, he concluded that the Applicant’s injuries would be within the MIG, and that she does not suffer a substantial inability to engage in the essential tasks of her employment as a pre-cook.

58. Dr. Bereznick’s addendum report did not change his initial finding that the Applicant did not have any signs of musculoskeletal, orthopaedic or neurologic injury. He further noted that “the apparent positive findings of the straight leg raise being reduced to 60 degrees on the left and the minimizing hip flexion during forward bending are not valid as they are inconsistent with the biomechanics of the surveillance.”

Dr. Jon Mills, psychologist

59. Dr. Mills, together with his associates, Sandeep Kaur, M.A., and Sam Al-Dabbagh, M.A., assessed the Applicant on September 24, 2014, and March 13, 2015. Uncovering potential psychological consequences resulting from the accident, and physical pains and limitations were the purpose of the assessments.

60. I find that Dr. Mills’ reports are unreliable and cannot be relied upon to establish whether the Applicant meets the eligibility test for income replacement benefits.

61. Dr. Mills’ September 24, 2014, assessment report is based entirely upon the Applicant’s self-reported symptomatology related to her psychological and physical impairments. There is no indication that the doctor or his assistants spoke to the Applicant about her work and daily activities before coming to the opinion that “her physical pain and psychological challenges impede her daily activities and her ability to work.”

62. The Applicant’s self-assessment of her physical pain, as asserted to Dr. Mills and Sandeep Kaur, contradicts what she informed her other health practitioners. On September 24, 2014, she reported that she was “experiencing ongoing pain in her neck, back, knee, and chest.”

63. However, this self-assessment of pain contradicts the family physician’s clinical notes and records. A review of the family physician’s clinical notes and records indicates that on June 5, 2014, she complained of “back pain, headache and now also knee pain”; on July 24, 2014, she complained of back pain and headache; and on September 2, 2014, the doctor noted “still back pain, and bilateral knee pain, no more physiotherapy.” The family physician’s clinical notes and record contradict the Applicant’s self-reporting pain in her neck and chest.

64. The Applicant was also assessed by Dr. Mills and his assistant, Sam Al-Dabbagh, M.A., on March 13, 2015. During this assessment the Applicant was administered various psychological tests.

65. I find that this report is not reliable. Many of the Applicant’s statements made to the doctor and his assistant are unreliable.

66. The assessment was conducted over one year from the date of the accident. The report indicates that as a result of the accident the Applicant’s head was impacted and she lost consciousness. However, her family physician’s clinical notes and records dated on March 6, 2014, indicate that she did not lose consciousness, a report from Centennial Rehab Centre, dated March 7, 2014, does not indicate that she lost consciousness, and Dr. Bereznick’s May 12, 2014, report indicates that she did not lose consciousness.

67. Also when looking at Dr. Mills’ March 13, 2015, report, the Applicant noted “ongoing pain in her neck, left shoulder, left arm, lower back, and legs.” The Applicant attended at her family physician’s office on January 13, 2015, and then on May 4, 2015. On both of these dates, she complained of back pain and pain in her left knee. I find that her claim of having ongoing pain in her neck, shoulder, arm or right leg is unreliable.

68. She also indicated that she cannot walk for long, she avoids driving whenever possible, that she does not have enough energy to do anything, that her physical symptoms completely interferes with her ability to engage in general activities.

69. The review of the surveillance evidence from April 2014, indicates that the Applicant was able to engage in many physical activities, including as noted before, going on long walks, working out at the gym, driving to places to drop off and pick up her daughters, and shopping. There is no explanation provided why in April 2014, she was able to engage in these activities, but during the March 2015, assessment, she states otherwise.

70. Also the reports do not indicate that he, and/or his assistant reviewed any of her medical records, treatment plans, reports, or disability certificates. The only source of information was from the Applicant. I find the Applicant’s self-reporting information provided to Dr. Mills is unreliable because it is inconsistent with what she informed her other treating health practitioners and with the surveillance evidence. I find that the inconsistencies are material. As such, I give no weight to Dr. Mills’ reports as they pertain to the Applicant’s ability to engage in her physical activities and her ability to work.

71. Having reviewed the evidence, I find that the Applicant has not established that she is unable to substantially engage in the essential tasks of her employment, and as such do not find that she is eligible to continue receiving income replacement benefits.

Do the Applicant’s injuries fall within the Minor Injury Guideline?

72. The Applicant submits that her injuries do not fall within the MIG because her physical injuries from the accident have become chronic, and she has developed severe headaches along with psychological impairments because of the accident. The Applicant submits that because of this the treatment plans and costs of examination are reasonable and necessary.

73. The Respondent submits that the Applicant’s injuries fall within the MIG and that she has already received treatment up to the $3,500.00 statutory limit. The Respondent also submits that even if the Applicant’s injuries are outside of the MIG, the treatment plans and costs of assessment are not reasonable and necessary.

74. For the reasons that follow, I find that the Applicant has not established that her injuries take her outside of the MIG. As I have decided that the Applicant’s injuries are within the MIG, I need not consider whether the treatment plans and costs of assessment are reasonable and necessary.

Minor Injury Guideline

75. The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The objectives of the MIG are to provide individuals with faster access to rehabilitation, improve health care resources, provide certainty around cost and payment to the parties, and be more inclusive in providing treatment for those who have minor injuries. The focus is on a functional restoration approach.

76. The term “minor injury” is defined in s. 3 of the Schedule as one or more of “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.”

77. An insurer, under to s. 14 of the Schedule, is liable to pay an insured person medical and rehabilitation benefits if the insured person has sustained an impairment as a result of an accident, and the benefits are reasonable and necessary expenses that have been incurred by or on behalf of the insured person as a result of the accident.

78. Section 18(1) of the Schedule provides a maximum limit of $3,500.00 for any one accident for medical and rehabilitation benefits for persons who have sustained a predominantly minor injury. As a result, the MIG will apply where an insured’s accident related injuries are predominantly minor.

Analysis: MIG

(i) Who bears the burden of proof to show that the Applicant’s injuries fall outside of the Minor Injury Guideline?

79. The Respondent submits that the burden of proof is with the Applicant to establish entitlement to the appropriate level of benefits. The Respondent relies on the case of Scarlett v. Belair Insurance Co. [2015] ONSC 3635 (“Scarlett”) to support this position.

80. I agree with the Respondent. The Court in Scarlett at paragraph 24 held that an applicant has the burden of proof to establish that his or her accident-related injuries are not predominantly minor, and as such fall outside of the MIG. If an applicant’s injuries fall outside of the MIG, the $3,500.00 limit on the medical benefits does not apply.

(ii) Are the Applicant’s Injuries outside of the Minor Injury Guideline?

81. The Applicant has not met her onus to establish on a balance of probabilities that her injuries fall outside of the MIG. There is insufficient evidence to establish that the Applicant’s injuries do not fall within the definition of “minor injury.”

82. The Applicant states she started experiencing severe headaches following the accident. The Disability Certificate dated March 10, 2014, noted headache as one of the injuries sustained, and her chiropractor wrote to her family doctor on March 17, 2014 that one of the Applicant’s complaints was headache pain.

83. Following the motor vehicle accident, the Applicant visited her family physician twenty-two times between March 6, 2014, and August 5, 2016. The family physician’s clinical notes and records indicate that she complained of a headache on June 5, 2014, July 24, 2014, and August 28, 2015. The remaining nineteen visits make no mention of the Applicant complaining of headaches. Since August 28, 2015, the Applicant has attended her family physician eight times, and there is no mention of headaches.

84. I also find that the Applicant has not established that her injuries have become chronic. The Applicant submits her evidence shows she has had pain in her back and knee since the accident. Her family physician’s clinical notes and records for September 24, 2015, state that he considered referring the Applicant to a specialist for chronic pain. However, there is no evidence that the Applicant was referred to a chronic pain specialist, or that she was assessed by a chronic pain specialist. A health practitioner noting that self-reported pain may be chronic without conducting further medical tests does not satisfy the onus to establish that the injuries fall outside of the MIG.

85. I also find that the Applicant has not established that she sustained psychological impairment because of the accident.

86. As noted earlier, I place no weight on Dr. Mills’ reports as they are based on the Applicant’s self-reports, and the Applicant’s credibility is in doubt because of the inconsistencies between her self-reports and the surveillance and medical evidence.

87. Crucially, in reviewing the family physician’s clinical notes and records, I saw little or no complaint by the Applicant of a psychological impairment resulting from the accident: no description of depressed mood, anxiety, or sleep disruption, etc. Likewise, the Applicant’s family doctor did not refer her to a specialist to address psychological concerns, or prescribe medication to treat any psychological impairment. Generally the family doctor’s notes reflect that the Applicant attended her family physician because she needed more medication to treat her pain in her back and knee.

(iii) Are the treatment plans and costs of assessment reasonable and necessary?

88. As I have found the Applicant is within the MIG, she cannot access benefits greater than the $3,500.00 statutory cap. The Applicant has already received treatment up to the $3,500.00 cap. As I find that the Applicant has not established her injuries are not minor, I need not decide whether the proposed treatment and costs of assessments are reasonable or necessary.

Is the Applicant entitled to interest on any overdue payment of benefits?

89. The Applicant is not entitled to interest because there are no benefits that are owing to the Applicant.

Applicant’s request to add issues

90. The Applicant requested to add two issues. In particular she requested her costs of the hearing and an award of “bad faith costs”. The Respondent provided a response as to why it felt that the issue regarding “bad faith costs” ought not to be added as an issue. The Respondent had a fair opportunity to address the two issues, therefore, I allowed the issues to be added.

Is either party entitled to its costs?

91. Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, (the “Rules”) provides that a party may make a request to the Tribunal for costs where a party believes that another party has acted unreasonably, frivolously, vexatiously, or in bad faith in a proceeding.

92. Rule 19.4 requires that a party’s submission on costs “set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.”

93. The Applicant submits that the Respondent’s behaviour was unreasonable, and the Applicant should be entitled to its expenses of the proceeding.

94. The Respondent submits that the Applicant’s behaviour warrants an award of costs against her because the Applicant has failed to act “fairly, honestly and in good faith when making a claim.” The Respondent claims the Applicant lied about her functionality when providing a statement to the Respondent, and that despite being aware of the surveillance report showing the Applicant’s functionality on the same day, she nonetheless continued to pursue her claim with this Tribunal.

95. Rule 19 concerns a party’s behaviour in the course of proceeding. The submissions by both parties for costs allege conduct by the other party prior to these proceedings: for instance, that the respondent denied benefits arbitrarily, or that the applicant lied to the adjuster. Rule 19 does not give the Tribunal jurisdiction to award costs for behaviour that happened before the filing of an application.

96. Neither party provided evidence upon which to found a claim that the other party’s conduct was unreasonable, frivolous, vexatious, or in bad faith during the course of the proceeding. The claims for costs are denied.

Is the Applicant entitled to an award under s. 10 of O. Reg. 664 because the Respondent unreasonably withheld or delayed payments to the Applicant?

97. The Applicant is not entitled to an award under s. 10 of O. Reg. 664 because the Applicant has failed to establish entitlement to a benefit, and therefore, the Respondent cannot have unreasonably withheld or delayed payment of a benefit.

ORDER

After considering the evidence, pursuant to the authority vested in it under the

provisions of the Act, the Tribunal orders that:

98. The Applicant’s injuries fall within the Minor Injury Guideline.

99. The Applicant is not entitled to income replacement benefits.

100. The Applicant is not entitled to the cost of the above-described treatment plans.

101. The Applicant is not entitled to the costs of the above-described assessments.

102. The Applicant is not entitled to interest on any overdue payment of benefits.

103. Neither party is entitled to its costs.

104. The Applicant is not entitled to an award under s. 10 of O. Reg. 664.

Released: March 10, 2017

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Jeanie Theoharis, Adjudicator