Tribunal File Number: 16-000323/AABS
Case Name: 16-000323 v Wawanesa Mutual Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits
Between:
Applicant (a minor represented by her litigation guardian) Applicant
and
Wawanesa Mutual Insurance Company Respondent
AMENDED DECISION
Adjudicator: Susan Mather
Appearances: G. M. Z., litigation guardian Katherine E. Kolnhofer, counsel for the Respondent
Heard in writing on: January 26, 2017
OVERVIEW
1The applicant was involved in an automobile accident on September 14, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant is a minor and is represented by her mother, as her litigation guardian. At the time of the accident she was 10 years old. The litigation guardian applied to Wawanesa Mutual Insurance Company (“the respondent”) for payment for a psychological assessment recommended by a psychologist, Dr. Henry Svec in a Treatment and Assessment plan (OCF-18) dated December 17, 2015.
3The OCF-18 was denied by the respondent because the applicant was placed into the Minor Injury Guideline (the “MIG”) and had nearly exhausted the $3,500 statutory limit. A Standard Benefit Statement found at Tab E of the respondent’s brief indicates that as of October 9, 2015 the respondent had paid benefits in the amount of $ 3,345.80 for physiotherapy.
4The litigation guardian disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference on July 18, 2016, but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
5The following are the issues to be decided:
- Did the applicant sustain predominately minor injuries as defined under the Schedule?
If the answer to issue one is no, is the applicant entitled to the cost of a psychological assessment as outlined in OCF-18 dated December 17, 2015 completed by Dr. Henry Svec, psychologist, in the amount of $1,850.39?
- Is the respondent entitled to its costs of this application?
RESULT
6Based on the totality of the evidence before me, I find that:
The applicant sustained predominately minor injuries as defined under the Schedule.
Since the answer to issue one is yes, the applicant is not entitled to the cost of a psychological assessment as outlined in the OCF-18 dated December 17, 2015 completed by Dr. Henry Svec, a psychologist, in the amount of $ 1,850.39.
The respondent is not entitled to its costs of this application.
ANALYSIS
1. Applicability of the Minor Injury Guideline
7The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 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 also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG. Section 18(5) provides that medical and rehabilitation benefits payable include all all fees and expenses for conductiing assessments and examinations.
8Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
9The burden of proof of establishing entitlement to medical benefits beyone the $3,500 cap for minor injuries rests with the applicant’s litigation guardian. This burden of proof was confirmed by the Ontario Superior Court of Justice (Divisional Court) in the 2015 case of Lenworth Scarlett v. Belair Insurance Company Inc. and Financial Services Commission of Ontario, 2015 ONSC 3635.
10I am not satisfied that the applicant has met the burden of establishing that she has sustained injuries which entitle her to more than $3,500 in medical benefits.
Injuries Sustained
11I am unable to find any evidence in the documents submitted by either the applicant or the respondent that supports a finding that the applicant sustained injuries which take her out of the MIG.
12In reaching my decision I have considered the initial application filed with the Tribunal on May 18, 2016 which includes a copy of a letter from the principal of the applicant’s school dated May 12, 2016 to the parents of the applicant and a daily attendance record of the applicant for the 2015-2016 school year. I have also considered the evidence and submissions of the parties filed with the Tribunal pursuant to the order of the Tribunal dated August 2, 2016.
13The documentary evidence filed by the litigation guardian on September 30, 2016 consists of :
a copy of a psychological consultation report of Dr. Svec dated May 9, 2016.
a copy of a prescription for Doxepin from Dr. Arcia –Bravo dated July 6, 2016
a copy of a drug store receipt dated September 12, 2016
a copy of a letter dated September 28, 2016 from a teacher at the applicant’s school listing behaviours of the applicant in the classroom in 2015-2016 that are of concern to the teacher.
14The respondent in its written submissions dated October 13, 2016 objects to the documents filed and requests an order excluding from evidence the prescription note, the receipt, the letters from the school dated May 12, 2016 and September 28, 2016 and the documentation authored by Dr. Svec.
15The respondent objects to school/attendance records for the reasons that the applicant has not produced the complete school records despite the request by the respondent and an agreement at the case conference that the documents would be produced. The respondent argues that the letters and attendance record provided have no probative value and are not relatived to the dispute.
16The respondent objects to the report of Dr. Svec on the basis that the applicant has failed to produce the records of Dr. Svec despite requests from the respondent.
17The respondent asks the Tribunal to exclude the documents from evidence on the basis of Rule 9.4 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 2016)(“LAT Rules”).
which provides:
If a party fails to comply with any Rules or Orders with respct to disclosure or inspection of documents of things, or list of witnesses, that party may not rely on the document or thing as evidence, or call witnesses to give evidence without the consent of the tribunal.
18I am not prepared to exclude these documents. The documents were all provided within the time limit set out for the applicant’s evidence and submissions in the Tribunal’s order dated August 2, 2016.
19I have taken into account the fact that the applicant has not produced complete school records or other records of Dr. Svec in determining how much importance or weight to give to these documents in making my decision.
20I find that the documentary evidence filed does not satisfy me that the extent of injuries the applicant sustained in the accident were more than minor injuries as defined in section 3 of the Schedule for the following reasons:
There is no evidence to show that the applicant’s absenteeism or reluctance to participate in class in the 2015-2016 school year is in any way related to the applicant’s injuries in the September 2014 motor vehicle accident.
There is no evidence to show that the 2016 prescription for Doxipen was required to treat injuries from the 2014 accident.
The May 9, 2016 report of the psychologist Dr. Svec simply confirms that the applicant received services from Dr. Svec and lists the assessments that he had done and the further assessments he was recommending. There is no medical evidence or opinion provided in the report. The report does not say whether the results of the assessments that had been done identified any medical diagnosis that was a result of the accident.
21At the case conference on July 18, 2016 the applicant appears to have agreed to provide the respondent with copies of the family physician’s records. The Tribunal received a copy of an e-mail from the litigation guardian to the respondent’s counsel dated September 29, 2016 stating that the respondent’s counsel would have to request the medical report directly from the family physician.
22The end result is that the applicant has provided no medical evidence from either her family physician or the psychologist, Dr. Svec to support a finding the the injuries sustained in the accident were outside of the MIG.
23The only medical evidence before the Tribunal is found in the respondent’s brief.
24The Disability Certificate dated October 2, 2104 ( OCF-3) is found at Tab B of the respondent’s brief. In the certificate the applicant states:
“I was sitting in the back of the car and the car pushed/shaked me and I hit my shoulder on the side of the door.”
25The OCF-3 was completed Dr. Arcia-Bravo the family physician approximately two weeks after the accident . The OCF-3 indicates the injuries to be neck strain, thoracic pain and abdominal muscle contusions. Dr. Arcia-Bavo recommends that the applicant receive physio-therapy for her injuries. The identified injuries identified clearly fall within the definition of minor injury in the section 3 Schedule being strains, and contusions.
26There is nothing in the certificate to indicate that the injuries were significant.
27The OCF-3 also indicates that the applicant had no pre-existing medical conditions and estimates the time for recovery at 9 to 12 weeks.
28The respondent also relies on a multi-disciplinary assessment report dated March 29, 2016 found at Tab A of its document brief to support its positions that the injuries are minor.
29Dr. Gharsaa, an orthopedic surgeon, conducted an examination on February 13, 2016. At page 5 of his report found at Tab A of the respondent’s document brief Dr. Gharsaa concludes that from an orthopedic point of view the accident related impairment is a minor injury. He recommends the applicant continue with normal acitivity and home exercises.
30Dr. A.H. Rubenstien a psychologist met with the applicant on March 15, 2016, for a psychological examination. Dr. Rubentein states that there is no evidence of a pre-existing psychological condition and finds that on the basis of his testing that applicant does not meet any of the criteria for a diagnosis of a psychological disorder. He states that in the absence of a psychological impairment the applicant would not be removed from the MIG.
31Based on the evidence before me, I am unable to find that the applicant’s impairment falls outside the MIG as there is no evidence to suggest that the applicant had suffered injuries other than those described in the OCF-3 completed by the family physcian.
32Having found that, I must now consider if there is compelling evidence that the Applicant suffered from a pre-existing condition that would prevent the applicant from achieving maximum recovery under the MIG.
Pre-existing Conditions
33The litigation guardian has made no claim that the applicant had pre-existing medical conditions that would prevent her from achieving maximal recovery under the MIG. The OCF -3 and the medical reports submitted by respondent also do not suggest that there is any pre-exising medical condition to be taken into account.
2. Cost of the Psychological Assessment and Treatment Plan
34Since I have found that the applicant sustained predominately minor injuries as defined under the Schedule and the Applicant has nearly exhausted her $3,500 limit under the MIG, the cost of the psychological exam is not payable.
3. Costs
35Rule 19.1 of the LAT Rules made under Rule 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. 22 permits a party to make a request to the Tribunal for costs.
19.1 Where a party believes that another party to a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith that party may make a request to the Tribunal for costs,
36The request for costs is denied. I find no evidence that the litigation guardian has acted frivolously, vexatiously or in bad faith in these proceedings.
37The respondent argues that the applicant insisted on the matter proceeding to a hearing forcing the insurance company to incur costs without presenting any substantial documentation or evidence in support of her position. The fact that the applicant has not presented strong evidence in support of her claim is not evidence that she has acted frivolousy, vexatiously or in bad faith. The respondent has not pointed to any behaviour of the applicant that persuades me that costs should be awarded.
CONCLUSION
38For the reasons outlined above, I find that:
- The applicant sustained predominately minor injuries as defined under the Schedule.
Since the answer to issue one is yes:
The applicant is not entitled to the cost of a psychological assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated December 18, 2015 completed by Dr.Henry Svec, psychologist, in the amount of $1,979.36.
The respondent is not entitled to costs.
Released: March 21, 2017
Susan Mather, Adjudicator