17-001265 v Waterloo Insurance, 2017 CanLII 87150

Date: 2017-11-06

Tribunal File Number: 17-001265/AABS

Case Name: 17-001265 v Waterloo Insurance

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:

Applicant

Applicant

and

Waterloo Insurance

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES

For the Applicant: Rajiv Kapoor, Counsel

For the Respondent: Krista Groen, Counsel

HEARD in writing: August 8, 2017

REASONS FOR DECISION AND ORDER

1[The applicant], (“the applicant”) was involved in an automobile accident on February 21, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2A case settlement conference held on May 1, 2017 failed to resolve the issues in dispute. Accordingly, a written hearing was ordered to take place on August 8, 2017.

3The substantive issues in this matter arise from a dispute about whether the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”), and, if they do not, whether or not he is entitled to specific medical benefits for claimed treatment plans and costs of assessment.

4The respondent has raised concerns about the applicant’s evidence, which must be resolved before I can determine the applicant’s entitlement to disputed benefits.

PROCEDURAL ISSUES

5The respondent has submitted that portions of the applicant’s evidence and arguments ought to be excluded from consideration. The issues raised by the respondent are:

1. Should the Tribunal exclude from evidence portions of the applicant’s reply submission challenging the respondent’s experts’ qualifications and reports?

2. Should the Tribunal disregard any portion of the applicant’s initial submission over the ten-page limit set out in the Order for this hearing, dated May 26, 2017?

3. Should the Tribunal exclude documents that the applicant failed to produce for the respondent by June 26, 2017 as set out in the above-noted Order for this hearing, under Rule 9.4 of the LAT Rules of Practice and Procedure, Version I (April 1, 2016) – hereinafter “the Rules”²,³, specifically:

a. the chiropractic physical evaluation report dated June 13, 2017, and

b. the applicant’s medical records from MCI Doctor’s Office: Birchmount.

6In addition, the respondent has submitted that the Tribunal should draw an adverse inference about medical reports that fail to comply with Rule 10.2(b)⁴ because they omit an “acknowledgement of duty form”? I will refer to this as procedural issue 4 in my reasons.

REASONS

7In considering the respondent’s procedural objections and requests to effectively exclude parts of the evidence and argument submitted by the applicant, I am governed by Rule 3.1, which requires me to interpret and apply the Rules liberally and provides that “they may be varied […] on the Tribunal’s own initiative” in order to “facilitate a fair, open and accessible process [..] and to allow effective participation by all parties [...]” and “to ensure efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal”.

Procedural Issue 1: Applicant’s Challenge to Respondent’s Experts

8Rule 10.4 provides that “a party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons […] to the other parties as soon as possible and no later than 10 days before the hearing …”

9In its reply submission dated July 31, 2017 the applicant set out arguments and evidence challenging the qualifications of Drs. Gawardjan and Finkel and their methodology in conducting insurer’s examinations. The applicant had not previously raised this issue. No notice was given to the respondent. The reply submission was filed six business days before the hearing date of August 8, 2017.

10On July 31, 2017, the respondent sent the Tribunal a letter, copied to the applicant, stating its ‘formal position, for the record’, that the applicant’s challenge “to the qualifications and/or reports of the experts on behalf of the Insurer” does not comply with Rule 10.4 of the LAT Rules of Practice and Procedure, Version I (April 1, 2016) – hereinafter “the Rules”. The respondent states that it was not provided with the notice required by Rule 10.4 for challenges to experts and reports and that the timeline of no later than ten days before the hearing set out by Rule 10.4 was violated.

11The respondent did not expressly seek a remedy for the applicant’s non- compliance. However, Rule 9.4 prohibits the applicant from relying on any documents included in its reply submission that were not disclosed in compliance with the Rules without the consent of the Tribunal, which I interpret to mean that I must consider whether or not to exclude the applicant’s submissions on the respondent’s experts.

12To ensure procedural fairness, I contacted the applicant on September 6, 2017 to offer him the opportunity to respond, in writing to the respondent’s letter by September 15, 2017.

13The applicant submitted his response to this issue in correspondence date September 13, 2017. In his submission, the applicant states that:

i. His reply didn’t challenge “the qualifications of the s.44 assessors in any way […] or the admissibility of its reports.”

ii. His reply addressed “deficiencies in the content/quality of the reports, which can be weighed by the adjudicator as he sees fit.”

iii. “Submissions on the quality of expert reports are not prohibited by the Rules in any way”.

14The applicant did not challenge the qualifications of the respondent’s experts, but he acknowledges that he challenged the reports themselves. I find that Rule 10.4 very clearly covers such challenges.

15The applicant’s assertion that the Rules do not prohibit submissions on the quality of expert witnesses is true. It is also irrelevant, because no-one has suggested such an interpretation. What the Rules do regulate is the notice that must be given of such submissions.

16The applicant cites two decisions of the Tribunal, CSZ v. Allstate⁵ and DT v. Wawanesa⁶ as support for its contention that Rule 10.4 only applies to the admissibility of expert evidence or where the challenge is to the expert’s qualifications of the author are being challenged”.

17The decisions cited by the applicant are not on point. They deal with objections to missing Acknowledgment of Duty forms. The adjudicator admitted the deficient reports under Rule 3, because excluding the reports would be disproportionate, unduly prejudicial to one of the parties and would militate against fair process.

18In neither cited case did the objector show that it was prejudiced by the late service of the form. This is in no way comparable to the introduction of a detailed challenge to expert reports at the very last stage of the submission process. The cited decisions have no persuasive value in this case, and I do not read them as supporting the applicant’s suggestion on limits to the application of Rule 10.4.

19Challenges to an expert report’s “quality and content” strike at credibility, and are fundamental to determining the weight of evidence that speaks to medical and other health-related benefits. They therefore warrant a full and fair exchange of evidence and argument between the parties. Without such an exchange, I cannot ensure a fair determination of either the challenge itself or the substantive issues.

20Considering a one-sided case about the respondent’s experts’ qualifications creates an obvious risk of serious, substantive prejudice to the respondent; this is the risk that Rules 9 and 10 address. Accordingly, I find that the respondent’s objection to the applicant’s challenge is valid, and it is substantive rather than merely technical in nature.

21Rule 3.1 obliges me to apply the Rules to allow effective participation by all parties. I find that considering the applicant’s challenge to the respondent’s expert evidence would violate that obligation, because the challenge was submitted in a manner that prevented the respondent from contesting it fairly.

22I find that there is nothing in the Rules that limits the application of Rule 10.4 to admissibility or qualifications. The Rule expressly governs challenges to an expert’s report. It would be patently absurd to suggest that this doesn’t include an attack on “deficiencies in the content/quality of the reports” as described by the applicant.

23Altogether my findings reflect the concerns of unfair surprise, prejudice and confusion expressed by the Courts in establishing well-settled law against “case splitting”: the attempt by a party to add further evidence after the other party’s defence is complete.⁷

24The applicant was required to raise his challenge in his initial submissions. His challenge does not arise from newly acquired information. He offers no explanation or excuse for its last-minute introduction. He provides no basis on which I can admit it.

25As the result of the foregoing, I am excluding the applicant’s reply submission from my consideration of this matter.

Procedural Issues 2-4

26In its response submission, the insurer raised a number of objections relating to non- compliance with the Order of May 26, 2017 and with Rules 9 and 10, and requested remedies which I have described below.

27The applicant answers these objections and requests in its reply submission by stating that they should have been made earlier in the proceedings by way of formal motion and that they have “no bearing on the substantive outcome of this claim”. He contends that they create unnecessary delay of a proceeding meant to be conducted expeditiously.

28I refuse the respondent’s request, noted as procedural issue 2 above, to disregard the portion of the applicant’s initial submission that runs beyond the ten page limit set in the Order of May 26, 2017, because:

(i) I see no evidence – and the respondent makes no argument -- that the excessive length of the submission actually prejudices the respondent.

(ii) Much of the “overage” consists of frankly excessively detailed notes, for example about the history of the application that are inessential to his case.

(iii) Excluding the last five pages of the applicant’s initial submission would make it impossible for me to ensure a fair and proportional determination of the merits of this case, which Rule 3.1 requires me to do.

29I deny the respondent’s request to exclude the applicant’s chiropractic physical evaluation report dated June 13, 2017, and his medical records from MCI Doctor’s Office: Birchmount, because:

i. I see no evidence – and the respondent makes no argument -- that allowing the evidence actually prejudices the respondent.

ii. I find that the respondent’s ability to make arguments that address the MCI records and use them to argue against the applicant’s case, suggests that its objection is technical, not substantive.

iii. Excluding this evidence would impair my efforts to ensure a fair and proportional determination of the merits of this case, which Rule 3.1 requires me to do.

iv. Rule 9.4 includes language that permits the Tribunal to permit the admission of evidence that might otherwise be excluded for non-compliance with disclosure Rules; in this case, I find that it fair for me to grant that permission.

30I refuse the respondent’s request to draw an adverse inference about the applicant’s medical reports because they omit an “acknowledgement of duty” form contrary to Rule 10.2(b), because:

i. I find no evidence that – and respondent makes no argument as to why -- the lack of an acknowledgement of duty form actually diminishes the probative value of the expert reports in this case.

ii. There is no basis in the Rules on which I may grant the request to make an adverse inference as a remedy for non-compliance with Rule 10.2(b).

iii. Excluding this evidence would impair my efforts to ensure a fair and proportional determination of the merits of this case, which Rule 3.1 requires me to do.

DISPUTED BENEFITS

31The substantive issues to be decided by the Tribunal are:

1. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500.00 and to treatment within the Minor Injury Guideline (the “MIG”)⁸?

2. Is the applicant entitled to receive a medical benefit in the amount of $5,125.67 for assistive devices, recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc. in a treatment plan submitted May 25, 2016, denied by the respondent on June 8, 2016?

3. Is the applicant entitled to receive a medical benefit in the amount of $1,160.50 for assistive devices, recommended by Dr. Justin Guy of Assess Medical Diagnostics Inc. in a treatment plan submitted May 25, 2016, denied by the respondent on June 8, 2016?

4. Is the applicant entitled to payments for the cost of examinations in the amount of $2,125.00 for a functional ability assessment, recommended by Dr. Justin Guy in a treatment plan submitted May 25, 2016, denied by the respondent on June 8, 2016?

5. Is the applicant entitled to payments for the cost of examinations in the amount of

$2,125.00 for a functional ability assessment, recommended by Dr. Mehdi Lotfalizadeh in a treatment plan submitted May 25, 2016, denied by the respondent on June 8, 2016?

6. Is the applicant entitled to interest on any overdue payments from the respondent?

FINDINGS

32I find that the applicant is not entitled to the medical benefits or the costs of examinations claimed because he is governed by the MIG.

33The applicant’s request for interest is denied.

REASONS

34Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.⁹

MIG Determination

35The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”)¹⁰. The applicant’s position is exactly the opposite.

36If the respondent’s position is correct, then the applicant is subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

37I must decide whether the applicant’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must then go on to determine the applicant’s entitlement to various treatment and assessment plans.

38Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”

Psychological Impairment

39The applicant contends that he has psychological impairments arising from the accident that remove him from the MIG.

40I acknowledge that psychological impairments, if established as the predominant injuries, fall outside the MIG, because:

(i) The MIG only covers “minor injuries” as defined in s. 3(1) of the Schedule, and the definition set out therein does not include psychological impairments.

(ii) I concur with other adjudicators who have concluded that psychological impairments are excluded from the MIG, for example in DJ v Aviva, 2016 CanLII 93136 (ON LAT) para. 17.

41To support his contention that he suffers from psychological injuries arising from the accident, the applicant relies on the following reports:

1. Dr. Justin Guy, chiropractor, who notes in a functional abilities evaluation dated May 25, 2016, that the applicant reported “nervousness” and “unspecified sleep, mood and neurological disorders.”

2. Mr. Joshua Pugen, a social worker, who states in his social emotional assessment dated December 8, 2016, that;

a. The applicant endorsed symptoms of anxiety and depression and reported intermittent suicidal thoughts arising from his social isolation after the accident.

b. That the applicant’s symptoms are “precursors” to psychological impairment.

3. Dr. Rashaad Nauth-Ali, chiropractor, whose chiropractic physical evaluation of June 13, 2017 notes the same complaints as reported to Dr. Guy and described above.

42To rebut the applicant’s claim of psychological injury, the respondent relies on the insurer’s examination reports by Dr. Richard Finkel, psychiatrist, dated August 2, 2016 and June 6, 2017. In his reports, Dr. Finkel concludes:

i. There is no evidence of a psychiatric condition or disorder.

ii. The applicant has very minimal psychiatric symptoms and displays no evidence of psychopathology on mental status examination.

iii. There is no recommendation for testing or treatment that could assist the applicant.

iv. There are no obvious limitations or restrictions delaying or preventing him [i.e. the applicant] from achieving a full recovery from any residual [psychological] symptoms.

43In his second report, Dr. Finkel also reports that the applicant denied suicidal ideation, flashbacks and significant anxiety apart from concerns with regard to his future. The applicant reported to Dr. Finkel that his dreams about the accident were becoming less frequent, that he had largely overcome anxiety as a pedestrian and can travel as a passenger in a car.¹¹

44I find that:

45The applicant’s endorsement of psychological problems to non- psychological or psychiatric health practitioners does not provide conclusive support of psychological impairment sufficient to remove the applicant from the MIG.

i. Mr. Pugen’s description of “pre-cursors to psychological impairment” is not enough to persuade me that the applicant’s claimed injuries are excluded from the MIG on a psychological basis.

ii. Dr. Finkel’s description of mild symptoms with no evidence of psychopathology persuades me that the applicant’s psychological complaints do not exclude him from the criteria of “predominantly minor injury” prescribed by the MIG.

iii. Differences in the “self-reporting” by the applicant to different medical experts undermine the strength of his claim to psychological impairment.

46I find the respondent’s medical evidence more persuasive than the reports relied upon by the applicant because:

i. Dr. Finkel’s findings were not refuted by anyone with psychological credentials.

ii. None of the applicant’s medical reports indicate a formal diagnosis of psychological disorder(s).

iii. None of the applicant’s medical experts is professionally qualified to make such a diagnosis.

iv. There is no evidence of diagnostic testing for psychological impairment from the applicant’s experts.

Accordingly, I find that the applicant’s experts do not refute Dr. Finkel’s conclusions.

47I conclude as a result of the foregoing analysis that the applicant has failed to meet the onus of proof to establish that his psychological symptoms do not fall within the Minor Injury Guideline (“the MIG”).

Chronic Pain

48The applicant argues that he is excluded from the MIG because he suffers chronic pain. To support his argument, he relies primarily on: a functional abilities evaluation prepared by Dr. Justin Guy, chiropractor dated June 16, 2016 noting pain symptoms persisting well beyond the expected natural history of most post-accident soft-tissue injuries, stating that his injuries cannot be treated within the confines of the MIG and recommending consultation with a chronic pain specialist, and

1. a chiropractic physical evaluation report by Dr. Rashaad Nauth-Ali opining that the applicant will require treatment beyond the limits imposed by the MIG to attain pre-accident levels of functioning.

2. references by Dr. Guy to “chronic pain” in the context of explaining the need for assistive devices and treatment in his treatment plan dated May 25, 2016.

49I reviewed the IE physiatry assessment report by Dr. Andrew Gwardjan dated August 2, 2016 and June 6, 2017, which acknowledged the applicant’s reports of ongoing pain but did not discuss chronic pain syndrome and concluded that:

i. There is no clinical indication for further formal facility-based care or any of the goods and services being proposed in the treatment plans above in order to return him to his pre-MVA activities.

ii. The applicant should be treated under the Minor Injury Guideline.

iii. There is no compelling evidence that treatment subject to the $3,500.00 limit would prevent the insured from achieving maximal medical recovery.

iv. The applicant should continue with independent therapeutic exercises at home to maintain his level of conditioning.

50I find from my review of the evidence that the applicant’s expert evidence fails to establish chronic pain because:

i. No actual diagnosis of chronic pain syndrome has been made.

ii. The reports submitted by the applicant are from practitioners with no expertise in chronic pain and should be given little weight on this issue.

iii. The applicant provides no evidence that he has ever sought treatment for chronic pain.

iv. A consult note from Appletree Medical Group dated June 20, 2016 reported continuing back pain but resolved leg and chest pain – and the respondent notes that the applicant never returned to Appletree for further consultations nor did he follow up on their referrals for x-rays.

v. The applicant’s records from MCI Doctor’s Office: Birchmount, which indicated that the applicant did not complain of chronic pain or any other accident-related problems over the course of five appointments in 2016.

51My review of the documents supports the respondent’s critique of the applicant’s evidence on the issue of chronic pain.

52I conclude that the applicant has provided insufficient evidence to meet the onus on him to show why he should be removed from the MIG on the basis of chronic pain.

Pre-Existing Condition

53Section 18(2) of the Schedule states that the $3,500 limit in that subsection does not apply to an insured person if he has a pre-existing medical condition. The applicant must show, with compelling evidence from his health practitioner, that he meets the following criteria:

(i) the pre-existing medical condition was documented by a health practitioner before the accident; and

(ii) the condition will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline (“MIG”).¹²

54The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.¹³

55The applicant states that he has pre-accident conditions – for example hypertension, obstructive sleep apnea and fatigue and anxiety related to erectile dysfunction – plus a “Decoded OHIP Summary” that “reveals a rich history of medical conditions that were ongoing at the time of the MVA”, which he lists in detail.

56I find that the applicant has failed to prove his contention that he had pre-existing conditions that would take him outside of the MIG. This is because:

(i) The applicant’s submission sets out his pre-accident medical history but simply fails to speak to how his pre-accident/pre-existing condition of his would generate a barrier to maximal recovery with treatment confined to the MIG limits.

(ii) My review of the treatment and assessment plans submitted by the applicant revealed no compelling evidence as defined and required by the MIG; indeed there is no discussion or analysis of pre-conditions as a barrier to recovery in any of them.

57I conclude that the applicant has failed to meet the standard of evidence required establish that he has a pre-existing condition that would remove him from coverage by the MIG.

58I conclude that the applicant has failed to provide me with sufficient evidence that his injuries fall outside of the MIG.

59Because the applicant’s injuries are governed by the MIG, it is unnecessary for me to address the disputed treatment and assessment plans further.

Request for Interest

60Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

61In this case, the applicant not entitled to interest because no payment is due from the insurer.

CONCLUSIONS

62The applicant’s injuries are governed by the MIG.

63The applicant is not entitled to the medical benefits he claims for assistive devices.

64The applicant is not entitled to benefits for costs of examinations he claims for two functional abilities evaluations.

65The appeal is dismissed.

66The applicant is/not entitled to interest.

Footnotes

1. 1O.Reg. 34/10
2. 2Throughout the text of this decision, references to a specific Rule (e.g. Rule 9.4) mean a Rule within LAT Rules of Practice and Procedure, Version I (April 1, 2016)
3. 3Rule 9.4 provides that a party which “fails to comply with any Rules or Orders with respect to disclosure of documents […] may not rely on the document as evidence, without the consent of the Tribunal.”
4. 4Rule 10.2(b) provides that a party who intends to rely on the evidence of an expert witness must provide the other party with a signed statement by the expert acknowledging his/her duties with respect to opinion evidence, including the duty to provide evidence that is fair, objective and “non-partisan”.
5. 5CSZ and Allstate Insurance Company of Canada, 2017 CanLII 3144 (ON LAT)
6. 6DT v. Wawanesa Mutual Insurance Co, 2017 CanLII 49716 (ON LAT)
7. 7The leading case is Krause v. The Queen, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, SCJ No.65, pp.473-474, per McIntyre, J.
8. 8Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to issued pursuant to s. 268.3 (1.1) of the Insurance Act.
9. 9Scarlett v. Belair, 2015 ONSC 3635
10. 10Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. issued pursuant to s. 268.3 (1.1) of the Insurance Act.
11. 11Driver anxiety is not at issue because the applicant does not have a driver’s licence.
12. 12Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
13. 13ibid. The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.