Tribunal File Number: 16-000266/AABS
Case Name: 16-000266 v Wawanesa 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:
D. T. Applicant
and
Wawanesa Mutual Insurance Company Respondent
DECISION
Adjudicator: Lori Marzinotto
Appearances by Telephone:
Applicant: Dimitra Tsalikis Counsel for the Applicant: Natalie Shykula-Clarke Co-Counsel for the Applicant: Robert Seredynski Counsel for the Insurance Company: Tessie Kalogeras Greek Interpreter: Arba Tsakiridis (Day One) | Marina Mangos (Day Two)
HEARD by Teleconference: October 19, 2016 & November 8, 2016
Overview / Introduction:
1The applicant, D. T., was injured in a motor vehicle accident on December 9, 2013. She applied for and received benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) including medical and income replacement benefits (“IRB”).
2Wawanesa Mutual Insurance Company (“Wawanesa”), terminated the applicant’s IRB effective July 28, 2014 taking the position that she no longer meets the test for entitlement. The applicant disputes the termination and submits that she should be paid IRB from July 28, 2014 to date and on-going. The applicant maintains the position that she is unable to return to work.
3Wawanesa also denied the applicant’s claim for medical benefits for chiropractic treatments, massage therapy, a back brace and assessments amongst other benefits. Wawanesa takes the position that the applicant’s injuries are predominantly minor and that s.18(1) limits medical and rehabilitation benefits at $3,500 for predominantly minor injuries (“MIG Limit”). The $3,500 having been exhausted, Wawanesa takes the position that it has no further liability to the applicant.
4Given that the MIG Limit had been exhausted and additional treatment plans in excess of $12,000 were being sought, I indicated to applicant’s counsel that whether the applicant’s injuries fall within the Minor Injury Guideline (“MIG”) needed to be added as an issue to be decided at this hearing. Applicant’s counsel indicated that the Tribunal does not need to compartmentalize the MIG issue but should examine each treatment plan. However, in submissions and during the hearing the applicant submitted that her injuries are outside of the MIG. Since submissions were made with respect to the MIG issue, I ultimately decided the issue.
5The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) and a teleconference hearing was held on October 19, 2016 and November 8, 2016.
Preliminary Issues
i) Raised by Applicant: Submissions received by fax
6The applicant requested that I disregard Wawanesa’s seventy-seven (77) page submissions that were sent by fax. Pursuant to Rule 6.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”), documents may be served on a party by fax only if the document is less than 30 pages or with the consent of the party served.
7Applicant’s counsel confirmed that the fax was legible and that it was received by the date specified in the case conference adjudicator’s Order. The applicant subsequently received a hard copy. The applicant argued that it was not convenient to receive the submissions by fax.
8All parties should endeavour to follow the Tribunal’s Rules. Wawanesa should not have faxed the submissions. However, there is no prejudice to the applicant given that the fax was legible, received in accordance with the case conference adjudicator’s Order and a hard copy was subsequently served.
ii) Raised by the Applicant: Admissibility of Expert Report for Lack of Acknowledgment of Expert Duties
9The applicant objected to Wawanesa’s Orthopaedic Surgeon reports of Dr. Zarnett (the “Reports”), because an Acknowledgment of Expert’s Duty was not served as required by Rule 10.2 of the Rules.
10I will admit the reports.
11Rule 3.1 of the Rules states that the Tribunal’s Rules will be liberally interpreted and applied, and may be varied on the Tribunal’s own initiative to facilitate a fair process. To exclude relevant evidence because Dr. Zarnett’s Acknowledgment of Expert’s Duty Form was not served as required by Rule 10.2 when it is clear that the applicant has had the reports for some time would not facilitate a fair process.
12Rule 10.4 of the Rules states that a party intending to challenge an expert’s qualifications or expert report shall do so no later than 10 days before the hearing.
13The applicant had ample time to object to the Reports prior to the day of the hearing and did not do so. There were no submissions or evidence that the applicant was prejudiced by the lack of Acknowledgment of Expert’s Duty form and the admission of the Reports into evidence. In any event, the Acknowledgment of Expert’s Duty form was served on October 18, 2016.
iii) Raised by the Applicant: Exclusion of Ms. Westbrook’s Evidence
14Ms. Westbrook conducted an insurer’s examination - Functional Capacity Evaluation (“FCE”) - of the applicant pursuant to s. 44 of the Schedule. Wawanesa intends to rely on Ms. Westbrook’s FCE and listed her as a witness they intended to call.
15The applicant sought the exclusion of Ms. Westbrook’s (Physiotherapist) evidence because Ms. Westbrook was not available to be cross-examined and is out of the country until October 31, 2016.
16The applicant did not summons Ms. Westbrook because she was listed as Wawanesa’s witness.
17I declined to grant the applicant’s request.
18In order to have a fair and full hearing, Ms. Westbrook should be available for cross-examination.
19I ordered that the hearing proceed today (October 19, 2016). Ms. Westbrook’s evidence will be heard on November 8, 2016 at 4:00 p.m.
iv) Raised by the Applicant: Request for Raw Surveillance Video Footage
20Midway through the hearing, the applicant asked Wawanesa if it intended to submit the video surveillance as part of its evidence. Wawanesa indicated that the video surveillance was referenced in its submissions.
21The applicant then requested raw (unedited) video surveillance footage. Wawanesa submitted that it served what was received from the investigator and believes it to be the raw footage. Wawanesa indicated that it could make inquiries of the investigator but that this should have been canvassed earlier than the mid-way point of the hearing.
22I agree. If the applicant was concerned about the video surveillance, the concern should have been raised prior to the mid-way point of the hearing. Applicant’s counsel advised that she only reviewed the footage the night before the hearing started.
23I was not inclined to exclude the video surveillance given the late objection.
24Although Wawanesa indicated that the video surveillance was served on the Tribunal, I did not have a copy in my possession and requested that another copy be delivered to me prior to the end of October 19, 2016.
25During the applicant’s examination-in-chief of Ms. Bierbrier, an Occupational Therapist who conducted an In-Home Assessment, Ms. Bierbrier indicated that she watched the video surveillance from August 15, 2016 to August 18, 2016.
26Applicant’s counsel indicated that she did not have the video footage from August 15, 2016 which the investigator’s report references and argued that this highlights the basis of the applicant’s request for the raw footage.
27I reviewed the surveillance video which was available to the parties and confirm that it included footage from August 15, 2016.
v) Raised by the Applicant: Day Two of Hearing – Request to Record Hearing
28Day two of the hearing was scheduled to start at 4:00 p.m. in order to accommodate the witnesses. Applicant’s counsel made a request to have the hearing recorded. I declined the request.
29Rule 13.2 of the Rules states that a party who wishes to record a hearing may do so if authorized by the Tribunal. Requests for permission to make a recording must be made in writing to the Tribunal at least 14 days prior to the hearing.
30I indicated that if applicant’s counsel wanted the hearing recorded, the request should have been made prior to 4:06 p.m. on the second day of the hearing. Logistically there was no way to accommodate that request. In addition, the applicant could have retained a court reporter.
vi) Raised by the Applicant: Day Two of Hearing – Objection to a Different Interpreter Being Used for Day Two of Hearing
31On day two of the hearing, a different interpreter was present than on day one of the hearing. Applicant’s counsel objected and was concerned that the interpreter may not speak the same dialect.
32I requested that the interpreter speak directly with the applicant to determine whether the applicant could understand this interpreter, whether there were any dialect issues or any communication issues.
33The applicant confirmed that she could understand the interpreter perfectly well.
34Accordingly, the hearing proceeded with the interpreter that was present.
vii) Raised by the Applicant: Day Two of Hearing – Admissibility of the Surveillance Report
35The Applicant objected to the video surveillance report being entered into evidence for two reasons: i) the applicant argues that the surveillance report does not reflect the surveillance video; and, ii) the applicant wants to cross-examine the investigator.
36Wawanesa argues that prior to 1:50 p.m. on day one of the hearing the applicant did not provide notice that she wanted to cross-examine the surveillance investigator and secondly, this was the first time Wawanesa has heard that the surveillance report does not reflect what is in the surveillance video.
37I will allow the surveillance report to be admitted into evidence and will determine the weight it is to be given.
38The applicant’s objection to the surveillance report was raised mid-way through day two of the hearing.
39The applicant indicated that they had served a summons on the investigator.
40Pursuant to s.12(3) of the SPPA, a summons shall be personally served. The applicant confirmed that the summons was served by fax. Accordingly, the summons had not been properly served.
41Section 10(1)(b) of the SPPA states that a party to a proceeding may conduct cross-examinations of witnesses reasonably required for full and fair disclosure of all matters relevant to the issues in the proceeding.
42The cross-examination of the investigator was not reasonably required. The surveillance video recorded the activities of the applicant and the report summarized the activities. Where the investigator provided opinions in his report on the applicant’s physical abilities, I gave these opinions no weight. Likewise, I disregarded any reported activities not viewed on the video.
Substantive Issues:
43The issues in dispute are as follows:
i) Is the applicant entitled to receive a weekly income replacement benefit (“IRB”), in the amount of $70.00 per week from July 28, 2014 to date and on-going?
ii) Is the applicant entitled to receive a medical benefit in the amount of $125.12 submitted on a Treatment and Assessment Plan (OCF-18) dated February 14, 2014 recommended by St. Joseph’s Rehabilitation and Wellness?
iii) Is the applicant entitled to receive a medical benefit in the amount of $1,870.56 submitted on a Treatment and Assessment Plan (OCF-18) dated July 9, 2014 recommended by St. Joseph’s Rehabilitation and Wellness?
iv) Is the applicant entitled to receive a medical benefit in the amount of $2,612.14 submitted on a Treatment and Assessment Plan (OCF-18) dated January 12, 2016 recommended by Epic Health Sciences Rehabilitation?
v) Is the applicant entitled to receive a medical benefit in the amount of $2,612.14 submitted on a Treatment and Assessment Plan (OCF-18) dated March 29, 2016 recommended by Epic Health Sciences Rehabilitation?
vi) Is the applicant entitled to receive a medical benefit in the amount of $2,095.28 submitted on a Treatment and Assessment Plan (OCF-18) dated May 2, 2016 recommended by Carol Bierbrier and Associates?
vii) Is the applicant entitled to receive a medical benefit in the amount of $2,192.10 submitted on an Expense Claim Form (OCF-6) dated April 6, 2016 for a back brace?
viii) Is the applicant entitled to receive the cost of an assessment submitted on a Treatment and Assessment Plan (OCF-18) in the amount of $1,397.00 dated February 12, 2016 recommended by Carol Bierbrier and Associates for an Occupational Therapy Assessment?
ix) Is the applicant entitled to interest for the overdue payment of benefits?
44I answer each issue in the negative.
Law / Analysis
IRB up to 104 Weeks Post-Accident
45I do not find that the applicant, as a result of and within 104 weeks of the accident, suffered a substantial inability to perform the essential tasks of her employment. The evidence does not support that the applicant’s complaints of pain are as a result of the accident.
46The applicant was injured in the motor vehicle accident on December 9, 2013. Wawanesa paid the applicant IRBs which were terminated effective July 28, 2014.
47The applicant seeks IRBs from July 28, 2014 to date and on-going. This requires an application of s.5 and s.6 of the Schedule, or what is often referred to as the “pre-104 test” and “post 104 test”. I will deal with the “pre-104 test” first, which is the test for IRBs within the first 104 weeks after the accident.
48Pursuant to s.5(1) of the Schedule, the applicant is entitled to IRB if, as a result of the accident, she suffered a substantial inability to perform the essential tasks of her pre-accident employment, in this case, as a cleaning assistant in a hair salon.
49The applicant visited Dr. Mikhail on December 10, 2013. There is no mention of the accident in Dr. Mikhail’s notes on December 10, 2013. His December 10, 2013 notes indicate that the applicant “still feel[s] tired she tells me that her work is physical and it be [sic] the reason of her tiredness...”.
50A Disability Certificate (OCF-3), dated January 10, 2014 was submitted by Dr. Mikhail. This is the only Disability Certificate that was submitted in this case.
51The OCF-3 indicates that the applicant is substantially unable to perform the essential tasks of her employment. It was anticipated that the applicant would be substantially unable to perform the essential tasks of her employment for a period of more than 12 weeks with severe headaches and severe musculoskeletal injuries indicated.
52The injuries listed on the OCF-3 indicated: i) H/A severe (which I interpret to mean severe headaches); ii) neck pain; iii) back pain; and chest pain. There is a notation before chest pain which is illegible. Shoulder pain is not noted on the OCF-3.
53Although Dr. Mikhail’s affidavit indicates that on April 14, 2014 the applicant “continued to complain of neck pain and severe shoulder pain” there was no medical record attached as an exhibit to the affidavit indicating this. The medical records of Dr. Mikhail (which were submitted as part of the applicant’s submissions) do not indicate there were continued complaints of severe shoulder pain. The first notation by Dr. Mikhail of shoulder pain appears on April 4, 2014.
54Wawanesa paid the applicant IRB until July 28, 2014. Wawanesa retained Dr. Zarnett, an orthopaedic surgeon, to conduct an insurer examination. Wawanesa stopped payment following Dr. Zarnett’s review of an MRI on May 3, 2014 which showed that the applicant did not have a rotator cuff tear and the FCE conducted by Ms. Westbrook, dated June 10, 2014, indicated that the applicant’s impairment is temporary and does not result in a disability with respect to resuming pre-accident employment tasks.
Functional Capacity Evaluation – Ms. Westbrook, June 10, 2014
55Ms. Westbrook conducted the FCE to determine if the applicant suffers an inability to perform the essential tasks of her employment.
56Prior to the accident, the applicant worked on Saturdays from 9:00 a.m. to 5:00 p.m. and described her duties as laundering and folding the towels and gowns, restocking the shelves on the first and second floor and sweeping hair from the salon floor.
57Ms. Westbrook opined that, based on the information provided by the applicant and on review of the Dictionary of Occupational Titles Job Classification, the applicant’s pre-accident occupation is classified at the “light” level of physical demands. This classification was not disputed by the applicant.
58The applicant’s primary complaint at that time was pain in the right shoulder.
59During the FCE, the applicant demonstrated self-limiting participation by stopping 16 of 20 tasks. Participation is determined by comparing the applicant’s willingness to exert maximal effort to the evaluator’s (Ms. Westbrook’s) observations of the applicant’s effort. Self-limiting participation during the evaluation means that the applicant stopped the task before physical signs of safe maximal effort were observed. As indicated in the evaluation, if the applicant “self-limited on 8 of 21 or more (or more than 33%) of the tasks, it is even more likely that psychosocial and/or motivational factors may be influencing physical performance”.
60Ms. Westbrook opined that the applicant is capable of performing at the light level of physical demands. Due to the significant level of self-limitation, Ms. Westbrook opined that the applicant’s actual abilities may be greater. As a result of the applicant declining to attempt the endurance section, Mr. Westbrook was unable to determine the applicant’s ability to tolerate an 8-hour work shift.
61Notwithstanding the applicant’s submission that Ms. Westbrook’s report indicates that it was the applicant’s pain and fatigue from her accident-related impairment that prevented her from completing the assessment, I have been unable to find any support for that statement in the evidence.
Insurer Examination – Income Replacement Benefits, Dr. Zarnett, Orthopaedic Surgeon
62Dr. Zarnett, Orthopaedic Surgeon, conducted a s.44 insurer examination to provide an opinion as to whether the applicant sustained an impairment from the accident that results in a substantial inability to perform the essential tasks of her pre-accident employment. The assessment was conducted on May 26, 2014 and a report was prepared dated June 10, 2014.
63At the time of his assessment, Dr. Zarnett concluded that the applicant suffered uncomplicated myofascial strains of her cervical and lumbar spine, which had resolved.
64Dr. Zarnett indicated that the applicant’s current complaint was with respect to her right shoulder pain which radiates down the arm, pain with movements, lifting and reaching and pain at night and numbness in the hand. The applicant reported that her neck, back and chest pain had resolved.
65Dr. Zarnett wanted to review the results of the MRI which were unavailable at the time of the assessment. In his opinion, given the mechanism of the injury it was unlikely that she tore a rotator cuff. If she did have a rotator cuff tear, there was a high probability that it was a pre-existing condition. Dr. Zarnett indicated that the applicant did have an impairment in her right shoulder but deferred comments until he reviewed the MRI results.
66Dr. Zarnett prepared an addendum report dated July 24, 2014 after reviewing the MRI.
67Dr. Zarnett opined that the applicant did not have a torn rotator cuff. There was some evidence of tendonitis. She may have some temporary limitations and inability to use her right arm for overhead activity and heavy lifting.
68Dr. Zarnett noted that Ms. Westbrook’s evaluation indicated that the applicant’s employment was classified as light level in physical demands and that she demonstrated the ability to complete work with arms overhead on an occasional basis which matched her job description.
69It was Dr. Zarnett’s opinion that the applicant’s impairment was temporary and did not result in a disability with respect to the applicant resuming her per-accident employment.
The Affidavit of Dr. Mikhail
70I find the affidavit of Dr. Mikhail submitted on behalf of the applicant troubling. There are a number of inconsistencies between the affidavit and his actual medical notes and records, none of which were attached as exhibits to his affidavit but were included in the applicant’s document brief. I accept Wawanesa’s submissions with respect to the inconsistencies between Dr. Mikhail’s affidavit and the medical documentation as follows:
i) At paragraph 7 of his affidavit, Dr. Mikhail notes the following: “Following her accident, [the applicant] attended my clinic on December 10, 2013. She complained of neck pain, back pain, anterior chest pain and headaches. I physically inspected [the applicant] and in my opinion said injuries were caused by the motor vehicle accident.”
I accept Wawanesa’s submissions that there is no documentary record that supports this statement. The notes on December 10, 2013, the day after the accident, make no mention of the accident nor make mention of any pain. It is worth reiterating that the OCF-3 was not completed until a month later on January 10, 2014.
ii) Paragraph 12 of Dr. Mikhail’s affidavit indicates that the MRI of May 3, 2014 revealed that the applicant had a “partial thickness tear of the right supraspinatus”. This is also repeated in the Affidavit of Dr. Weinberg. At one point in the applicant’s submissions (page 11 paragraph 11) this is actually described as a right rotator cuff tear. The MRI results dated May 3, 2014 do not state that the applicant has a “partial thickness tear of the right supraspinatus” but indicates “Marked thickening of the right supraspinatus and infraspinatus tendons in keeping with underlying tendinosis. A partial-thickness tear involving the bursal surface fibres of the right supraspinatus tendon is suspected.”
iii) At paragraph 15 of Dr. Mikhail’s affidavit, he indicates that MRIs of the applicant’s spine were completed on July 15 and July 31, 2015, Dr. Mikhail states “The partial compression fracture was not seen prior to her motor vehicle accident and only occurred post-accident.” The applicant also states this in her affidavit. The clinical notes and records dated June 19, 2015, specifically state that “There is a partial compression fracture…which appears long-standing…” I note that a partial anterior compression fracture was not seen previously; however, this is not what is in Dr. Mikhail’s affidavit or the applicant’s affidavit. In addition, a letter to Dr. Mikhail dated October 20, 2014 indicates that the applicant has a prior history of vertebral fractures. It further indicates that from a bone perspective, the applicant had been on treatment with bisphosphonates for a long time, most recently Actonel for 10 years which was stopped in 2010 and restarted when she developed vertebral fractures. However, in October 2013 the applicant stopped taking the Actonel.
71In her written submissions the applicant indicated that she suffered from a right ankle fracture as a result of the accident. This was not argued during the hearing. There is no supporting medical evidence that was presented indicating that the applicant suffered a right ankle fracture as a result of the accident. Although in the clinical notes and records dated December 2, 2014 it is noted that the applicant has severe ankle pain and knee pain after the accident, Dr. Mikhail notes that an x-ray done by a rheumatologist showed corticol deformity as a result of a stress fracture, he thinks it was as a result of her using bisphosphonate for a long time. In addition, a medical note dated September 9, 2014 from Oak Ridges Medical Diagnostic Imaging indicates that the applicant has had bilateral swelling in her ankles for years.
Medical Records
72The applicant submits that during the period of January 2014 to July 2014, she attended St. Joseph’s clinic on a weekly basis up to six times per month for chiropractic and massage treatment but stopped when Wawanesa denied funding for further treatment.
73The applicant submits that she recommenced rehabilitation on January 12, 2016 at Epic Health Sciences. The clinical notes and records of Epic Health Sciences Rehab Inc. (or Epic Rehab & Sports Medicine) (“Epic”), most of which are illegible, were included in the applicant’s submissions; however, the Tribunal was not referred to specific pages or notations that supported the applicant’s submissions.
Occupational Therapy Report of Carol Bierbrier and Associates
74Ms. Bierbrier, Occupational Therapist, conducted an in-home assessment with the applicant on February 27, 2016 and prepared a report dated March 23, 2016. Ms. Bierbier was examined-in-chief and was cross-examined during the hearing.
75Ms. Bierbrier opined that at the time of the assessment, she felt the applicant would not be able to work at her pre-accident employment.
76In terms of Ms. Bierbrier’s prognosis and treatment recommendations, she testified that she recommends six (6) occupational therapy sessions where she could explore the applicant’s gait issues fully, maximize use of a cane, pain management strategies and provide education but not full therapy. She testified that because her assessment was seven (7) months from the date of the hearing, it would be fair to do another assessment.
77I prefer the evidence of Dr. Zarnett and Ms. Westbrook over that of Ms. Bierbrier. Ms. Bierbrier’s report does not address the issue of whether the applicant suffers a substantial inability to perform the essential tasks of her pre-accident employment. Dr. Zarnett and Ms. Westbrook specifically address the IRB test in their reports and find that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.
Post 104 IRBs
78Section 6(2)(b) of the Schedule sets out the test for entitlement to IRB after the first 104 weeks of disability as a result of the accident (the “Post 104 Test”).
79The applicant must show she suffers a “complete inability to engage in any employment or self-employment…..”
80There is no evidence to support that the applicant suffered a complete inability to engage in any employment. I find she is not entitled to post 104 IRBs.
Minor Injury and Medical Benefits
81The applicant made claims for a number of medical benefits listed as issues in paragraph 43 (ii) – (viii) above. Wawanesa denied the benefits indicating that the applicant was being treated under the MIG and had previously exhausted her maximum entitlement of $3,500.
82The Case Conference Order dated July 12, 2016 does not include the issue of whether the applicant’s injuries fall within the MIG. I was also not asked to add this as an issue in dispute, although, submissions where made by the applicant that her injuries fall outside of the MIG because she suffers from pre-existing conditions that prevent her full recovery and she developed injuries from the accident that do not meet the definition of a MIG injury.
83At the start of the hearing, I raised this issue with counsel. If I am not being asked to determine whether the applicant’s injuries fall outside of the MIG, then Wawanesa’s finding that the applicant’s injuries fall within the MIG stand. Accordingly, given that the applicant has exhausted the MIG limit, I have no authority to find that the disputed treatment plans and medical benefits be paid by Wawanesa even if I could find that they are reasonable and necessary. Applicant’s counsel submitted that I do not have to compartmentalize the MIG issue and I can look to each treatment plan.
84This submission is problematic. Unless a finding is made that the applicant’s injuries fall outside of the MIG or that the applicant would be prevented from achieving maximal recovery if she is subject to the $3,500 limit and there is compelling medical evidence of a pre-existing condition that will prevent the applicant from achieving maximum medical recovery if subject to the MIG Limit, the amount of medical and rehabilitation benefits payable shall not exceed $3,500. As indicated previously, the MIG Limit has already been exhausted.
85It is clear that, despite the applicant’s submission to the contrary, I must resolve the issue of whether the applicant’s injuries fall within the MIG as a precursor to reviewing the disputed treatment plans. I find that they do.
86Scarlett v. Belair Insurance [2015] O.J. No. 2939, established that the applicant has the burden of proof to establish that the injuries fall outside of the MIG.
87The term “minor injury” is defined in s.3 of the Schedule as a “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.”
88Section 18(1) provides a maximum limit of $3,500 for any one accident for medical and rehabilitation benefits for insured persons who sustain a predominantly minor injury.
89Section 18(2) states that the $3,500 maximum limit does not apply to an insured person 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 and that will prevent the insured from achieving maximal recovery
90Dr. Weinberg indicates at paragraph 12 that he requested treatment outside of the MIG and submitted a Minor Injury Treatment Discharge Report (OCF-24) on April 30, 2014 and was submitting an OCF-18 for the applicant.1
91Dr. Weinberg submitted an OCF-18 dated February 24, 2014.2
92The OCF-18 proposes 6 manipulations and 13 chiropractic sessions. Dr. Weinberg indicates the following injury and sequelae: “Whiplash associated disorder [WAD 3] with complaint of neck pain with neurological signs.”
93The OCF-18 form asks “Is the impairment predominantly a minor injury as referred to in the Minor Injury Guideline” which Dr. Weinberg marks as “yes”. Dr. Weinberg further indicates that prior to the accident, the applicant did not have any disease, condition or injury that could affect her response to treatment for the injuries identified. Dr. Weinberg also states that the applicant has been slowly improving.
94As of May 2014, the applicant reported to Ms. Westbrook (as indicated in Ms. Westbrook’s June 10, 2014 report) that her current complaint was pain in her right shoulder. There was no mention of neck pain.
95Also as of May 2014, the applicant reported to Dr. Zarnett (as indicted in Dr. Zarnett’s June 10, 2014 report), that her neck, back and chest pain had resolved. The applicant’s complaint at that time was related to her right shoulder.
96In Dr. Zarnett’s July 2014 Addendum Report, he opines that after reviewing the May 2014 MRI, the applicant does not have a torn rotator cuff and further indicates that the applicant’s impairment does not result in a disability with respect to the applicant returning to her pre-accident employment tasks.
97Almost two years later, in February 2016, the applicant was seen by an Occupational Therapist, Carol Bierbrier & Associates. At this time the applicant’s complaints were lower back pain, lower extremity pain, right shoulder pain, altered sleep patterns and headaches.
98In June 2016, the applicant was assessed by Dr. Tansey. At that time the applicant reported that her current complaint was back pain. The applicant denied any other symptoms. Dr. Tansey opined that the applicant’s injuries were predominantly minor.
Pre-existing Medical Condition
99In her submissions, the applicant states that she suffered from pre-existing osteoporosis, osteonecrosis and arthritis that was documented in Dr. Mikhail’s and St. Joseph’s clinic clinical notes and records.
100Even if it is accepted that the applicant suffered from these pre-existing conditions, the applicant has not indicated or provided evidence as to how these conditions prevent her from reaching maximal recovery under the MIG.
101The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. Other than the applicant indicating that the conditions complicate her treatment and full recovery, the applicant has not provided compelling medical evidence to show that her pre-existing conditions prevent her from achieving maximal recovery under the MIG.
102The applicant relies on Cowans and Motor Insurance Company3, wherein the arbitrator found that in determining an insured’s entitlement to accident benefits, the insurer cannot ignore credible evidence that is available to it. An insurer has an obligation to constantly assess and examine new medical information as it becomes available
103The applicant submits that information with respect to her pre-existing conditions was available to Wawanesa through the release of clinical notes and records and MRIs. The applicant submits that Wawanesa was required to properly consider this information to remove her from the MIG.
104The applicant was denied a treatment plan in July 2014 and did not submit another treatment plan until January 2016. Once Wawanesa received the treatment plan dated January 12, 2016, it requested the applicant attend a s.44 examination for the purpose of providing an opinion as to whether her injuries sustained in the accident are predominantly minor injuries.
105Dr. Tansey conducted a s.44 examination on June 20, 2016. While it is clear from the list of documents that he was provided to review for his report that he had medical documentation dated after July 2014, I was not provided evidence as to when the medical documents were in Wawanesa’s possession.
106Dr. Tansey opines that the applicant sustained uncomplicated myofascial strain type injuries to her neck and back from which she has made a recovery.
107Dr. Tansey noted that the May 2014 MRI showed a thickening of the supraspinatus tendon in keeping with underlying tendinosis but no focal tear was identified. Although Dr. Tansey indicates that this pre-existed at the time of the accident, he believed it would not have prevented her from achieving maximum medical recovery and notes that the applicant did not report any symptoms in her right shoulder in the examination and had a full range of motion.
108As stated previously, I have determined that, based on the evidence before me, the applicant’s injuries fall within the MIG.
109Given that I have found that the applicant sustained predominantly minor injuries and has exhausted the $3,500 MIG Limit, the medical benefits in dispute are not payable.
Applicant’s Submissions and Documentation
110In the adjudicator’s case conference Order dated July 12, 2016; the parties were instructed that “Clinical notes and records should not necessarily be submitted in their entirety. The parties should refer in their submissions to those parts or pages that are relevant and necessary to support their client’s position.” Despite this Order, counsel failed to direct me to specific pages.
111Counsel for the applicant included a substantial amount of medical records some of which detailed the Applicant’s medical conditions that were in no way related to the accident. In addition, when referring to medical records, the applicant would cite, for example, “Clinical notes and records of Dr. Mikhail” without referencing a specific tab or page number. The clinical notes and records of Dr. Mikhail were in excess of 140 pages. It is not for this Tribunal to try and find the “relevant” evidence in a party’s submissions but it is a party’s onus to direct the Tribunal to relevant evidence to support its case. The applicant failed to do so in this matter.
112It is important to point out that when a party indicates that medical evidence indicates a particular conclusion or diagnosis in their submissions, this should be properly referenced so that the evidence may be easily reviewed by the Tribunal. In this case, for example, the applicant’s submissions (page 11 paragraph 11) indicated that the applicant suffered from a “right rotator cuff tear”. After searching through the plethora of medical documents, there was no evidence of a “right rotator cuff tear” but an MRI which indicated that “a partial-thickness tear involving the bursal surface fibers of the right supraspinatus tendon is suspected”. A “suspected partial tear” is different from a “tear”.
113The lack of citations referring to a specific document when the applicant indicates that a medical practitioner makes a specific finding is troubling. For example, at paragraph 10 of the applicant’s submissions she states the following: “On or about January 4, 2015…Dr. Weinberg physically examined ….He determined that these injuries were the result of her motor vehicle accident.” The applicant simply references “St. Joseph’s clinical notes and records”. Dr. Weinberg repeats this statement in his affidavit at tab 2 paragraph 8 of the applicant’s document brief. The St. Joseph’s clinical notes and records are contained in tab 21 of the applicant’s Document Brief. I was not taken to these documents during the hearing. The handwritten notes contained in tab 21 are largely illegible.
Decision
114After considering the evidence, pursuant to the authority vested in the Tribunal under s.280(2) of the Act, the Tribunal orders that the Application be dismissed.
Costs
115Both the applicant and the Wawanesa have requested costs of the hearing.
116Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) states that a party may request costs where they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith.
117No costs shall be awarded in this proceeding. While some of the conduct on the part of the applicant’s counsel lacked professionalism, for example, being overly argumentative, making late objections or requests at or during the hearing which could have and should have been raised prior to the hearing and including irrelevant documents and not referencing specific documents as ordered, I do not find that the conduct meets the unreasonable, frivolous, vexatious or bad faith threshold to warrant an award of costs.
Released: April 24, 2017
Lori Marzinotto, Adjudicator
Footnotes
- The only OCF-24 I could find in the documents was dated January 4, 2014.
- This appears to be the medical benefit in dispute listed at paragraph 43(ii) (although it is incorrectly dated as February 14, 2014). Although neither party directed me to this treatment plan, it appears that the treatment plan was submitted in the amount of $1,380.12 and partially approved by Wawanesa in the amount of $1,255.00 leaving an outstanding balance of $125.12 outstanding, the amount in dispute
- FSCO, A09-003237, October 15, 2010.