Applicant v. TD Insurance Meloche Monnex, 2018 CanLII 13142

17-000640/AABS v TD Insurance Meloche Monnex

Date: 2018-02-14

Tribunal File Number: 17-000640/AABS

Case Name: 17-000640/AABS v TD Insurance Meloche Monnex

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

and

TD Insurance Meloche Monnex

Respondent

AMENDED DECISION

ADJUDICATOR: Deborah Neilson

For the Applicant: [Applicant], applicant Andrej Rondas, paralegal for the applicant

For the Respondent: Dragan Acimovic, representative for the respondent Michael Owsiany, counsel Danielle Koehn, counsel

Filipino interpreter: Christina Amigleo

HEARD: In person on July 31, 2017 By teleconference on August 3, 2017

I. OVERVIEW

1The applicant, [applicant], was injured in a motor vehicle accident on June 7, 2013. He applied for accident benefits to the respondent, TD Insurance, under to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). The applicant seeks a non-earner benefit and payment for two treatment plans – one for medical benefits consisting of physiotherapy treatment and the other for a psychological assessment.

2The respondent denied the benefits claimed on the basis that the applicant’s injuries are predominantly minor injuries as defined in s.3 of the Schedule and are therefore subject to a maximum payable of $3,500.00 for the cost of examinations, medical, and rehabilitation benefits combined (the “cap”). The respondent dealt with the applicant’s treatment under the Minor Injury Guideline (the “MIG”).

3The respondent submits that the applicant is not entitled to non-earner benefits (“NEBs”) because he is unable to prove on a balance of probabilities that he has a complete inability to carry on a normal life. The respondent relies on the opinions of its insurer’s examination (“IE”) assessors and the fact that at the time of the accident, the applicant was working on completing his high school diploma at an adult learning centre. He has since obtained his diploma and is in his third year of an electrical engineering course at the University of Ontario Institute of Technology.

4The applicant disagrees with the respondent’s denial of NEBs and its decision to deal with his treatment under the MIG. He claims that his injuries fall outside the MIG because he had pre-existing health conditions and because he developed chronic pain and psychological injuries as a result of the accident. He submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

II. ISSUES

5I have identified the issues to be determined from the Tribunal’s order dated May 1, 2017 and the parties’ submissions as follows:

a) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a cap of $3,500.00 and to treatment within the MIG?¹

b) Is the applicant entitled to receive a medical benefit of $2,200.40 for physiotherapy services recommended by Dr. Alan Deokiesingh in a treatment plan dated July 15, 2015?

c) Is the applicant entitled to receive $2,200 for the cost of a psychology assessment recommended by Dr. Judith Pilowsky in a treatment plan dated April 5, 2016?²

d) Is the applicant entitled to receive a non-earner benefit (“NEB”) of $185.00 per week from June 7, 2013 to date and ongoing?

e) Is the respondent required under s.33(8)(b) of the Schedule to pay the applicant benefits withheld during the period the applicant failed to comply with the respondent’s request for information reasonably required to determine the applicant’s entitlement to a benefit?

f) Is the respondent entitled to its costs of the hearing because the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith?³

6At the outset of the hearing the respondent raised a procedural issue seeking an order that the applicant be precluded from relying on two reports, a report of Dr. Judith Pilowsky, psychologist, and a report of Cheryl White, a social worker, for failure to serve the documents in accordance with the case conference Adjudicator’s Order.

III. RESULT

7I admitted the reports of Dr. Pilowsky and Ms. White as the respondent had copies of both of those reports prior to the time limit imposed by the case conference Adjudicator, the reports are relevant to the issues in dispute, and there was no prejudice to the respondent.

8The applicant is not entitled to NEBs because he sustained predominantly minor injuries from the accident in accordance with the definition in the Schedule, and the MIG, therefore, applies to him. The applicant’s treatment has reached the $3,500.00 cap. This means there is no more coverage available to him for the treatment plans in issue and I need not determine whether they are reasonable or necessary.

9As the applicant is not entitled to any accident benefits, I do not need to determine whether the respondent is required to pay any benefits withheld for the period of time the applicant failed to provide information requested by the respondent.

IV. PROCEDURAL ISSUES

10The case conference Adjudicator ordered that, 30 days before the hearing, the parties serve each other and file with the Tribunal the documents they intend to rely on at the hearing and a list of the witnesses they intend to call. The applicant failed to comply with the order. He did not serve and file his documents until 10 days before the hearing, and did not serve a witness list. For this reason, the respondent sought an order that the applicant be precluded from relying on two reports, a report of Dr. Judith Pilowsky, psychologist, and a report of Cheryl White, a social worker.

11I reject the applicant’s submission that his failure to comply with the case conference Adjudicator’s order should be excused because he was involved in settlement negotiations with the respondent. While settlement is always encouraged as the means to resolving issues before the Tribunal engaging in settlement discussions is no excuse for failing to comply with an order. The applicant also submitted that he did not comply with the order because Dr. Pilowsky advised two weeks before the hearing that she was not available to attend the hearing. The applicant did not notify the respondent of his predicament, issue a summons for Dr. Pilowsky, or seek an adjournment of the hearing. All of which were options available to him. In fact, it was not until the respondent phoned the applicant one business day prior to the hearing that the applicant’s representative advised that only the applicant was going to provide oral evidence. The respondent submitted that it was not in a position to summons either Dr. Pilowsky or Ms. White because it was waiting to receive the applicant’s witness list and had tried to elicit a list from the applicant’s representative on a number of occasions.

12The applicant’s failure to properly prepare for the hearing and comply with the order shows a blatant disregard for the Tribunal’s authority.

13I allowed the applicant to rely on the report of Dr. Pilowsky as the respondent had notice from the applicant that he intended to rely on her report. The applicant stated his intention in his case conference summary. If the respondent had wanted to cross-examine Dr. Pilowsky on her report, the respondent should have advised the applicant of its intention at the case conference.

14The report of Ms. White was more problematic. At the start of the hearing, I decided to exclude the report on the basis of the respondent’s submission that it was prejudiced for the following reasons:

a. it was completely unaware of the report until it was served 10 days prior to the hearing;

b. there were inconsistencies and questions raised by the report that could only be addressed by its experts; and

c. its experts had no opportunity to review and comment on the inconsistencies in the report.

15It became apparent during the evidence in-chief of the respondent’s expert psychological witness, Dr. Biswas, that she had in fact received Ms. White’s report from the respondent, reviewed it and commented on it in her own report. Accordingly, the respondent’s submissions were unfounded. For that reason, I reversed my decision to exclude Ms. White’s report. I canvassed the applicant on whether I needed to recall any of the witnesses who had already testified in order for the applicant to question those witnesses about Ms. White’s report. He provided further testimony as a result, but declined the offer to recall any of the other witnesses. He was able to cross-examine Dr. Biswas on her comments about Ms. White’s report.

V. MINOR INJURY and the MIG

16A minor injury under s.3(1) of the Schedule means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. To prove that he is entitled to the medical benefits and the cost of examinations claimed, the applicant must prove on a balance of probabilities that he did not sustain a predominantly minor injury.⁴ The applicant submits that he has a psychological injury and chronic pain and that either of those conditions takes him out of the MIG. For me to determine that the MIG and the cap do not apply, the applicant must prove any one of the following apply to him:

a. He has pre-existing conditions that prevent him from achieving maximal recovery from the minor injury under the MIG or the cap;

b. He has a psychological injury that is not mere sequelae of his soft tissue injuries; or

c. He has chronic pain syndrome that is not mere sequelae of his soft tissue injuries.

17I find that the applicant has failed to prove he sustained more than predominantly soft tissue injuries in the accident. Although he has pre-accident medical conditions, he has not proven that those conditions will prevent him from achieving maximal medical recovery under the cap or the MIG.

18I find that the physical injuries the applicant suffered in the accident are soft tissue injuries consisting of a strain of his left trapezius, his axial spine, a mild level I whiplash associated disorder of the neck, and a mild exacerbation of his pre-existing left shoulder girdle and arm irritability that have resolved. My finding is based on the undisputed testimony of Dr. Maurice Bent, an orthopaedic surgeon, and Dr. Frank Loritz, a general practitioner, both of whom conducted IEs of the applicant at the respondent’ request; the clinical notes and records of the applicant’s family doctor, Dr. Shiva Gaur; and a July 2015 treatment plan prepared by Dr. Alan Deokiesingh, chiropractor who also diagnosed the applicant with soft tissue injuries and stated the applicant’s injuries were predominantly a minor injury.

A. Pre-existing Medical Condition

19The $3500 cap and the MIG do not apply to the applicant if he comes within the exception for people with pre-existing injuries under s.18(2) of the Schedule. The applicant will come within the exception if his health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident. The applicant must also show that the pre-existing condition will prevent him from achieving maximal recovery from the minor injury under the MIG or if he is limited to the $3,500.00 cap.

20The applicant submits that he had a number of pre-existing injuries that he believes take him out of the MIG. According to his testimony, the clinical notes of Dr. Gaur and the medical reports, these include the following:

a. a fracture to his right baby finger metacarpal in 2005 and a fractured left elbow before that;

b. a cut to his right forearm that resulted in some residual nerve damage after he was hit by a car as a pedestrian in 2006;

c. soft tissue injuries to his neck, upper back and left little finger from a car accident on December 24, 2011;

d. the amputation of the third finger on his left hand at the DIP joint⁵ from a work related accident with a saw in 2012 and decreased sensation in all of his other fingers on his left hand except his baby finger; and

e. difficulties sleeping and left shoulder girdle and upper arm complaints.

21Dr. Loritz’s uncontested opinion was that the applicant’s pre-existing medical conditions would not prevent the applicant from reaching maximum medical recovery from his physical injuries. I accept his opinion because the only evidence presented by the applicant was in Dr. Deokiesingh’s treatment plan where he wrote that he had no knowledge if the applicant had been treated for any of his pre-accident conditions in the previous year. Dr. Deokiesingh did not testify or provide any evidence to challenge Dr. Loritz’s opinion. The applicant presented no other evidence from a health practitioner that his pre-accident medical health would prevent him from recovering under the MIG or if he were subject to the $3500 cap on treatment. Further, the applicant’s evidence was that he was “pretty healthy” at the time of his accident. He testified that the only difference between his pre-accident health and his health at the time of the hearing was that since starting university, he experienced difficulty concentrating. I conclude that the injuries from the accident have resolved and the exacerbation of his pre-accident left shoulder girdle and arm irritability are back to their pre-accident levels.

22The applicant also submits that he has Attention Deficit Hyperactivity Disorder (“ADHD”) and that it is a pre-existing condition. The respondent submits I am unable to consider the ADHD because it was not documented prior to the accident. I agree with the respondent because s.18(2) of the Schedule requires the pre-existing condition to be documented by a health practitioner before the accident. In this case, there was no record of a diagnosis of ADHD in any of the pre-accident medical documents filed by the parties. The applicant advised Ms. White, the social worker who prepared a report on his behalf in October 2013, that he had problems focussing after the 2011 accident, and believes that he lost his finger in his 2012 work related accident because of his inability to focus. However, the applicant’s focus problems due to the 2011 accident were first documented four months after the 2013 accident in Ms. White’s report.

23In her October 2013 report, Ms. White stated that the applicant was diagnosed with chronic pain by Dr. Azadian, a psychiatrist, as a result of the 2011 accident. No reports or records predating the accident from Dr. Azadian diagnosing the applicant with chronic pain were filed by the applicant. This means that under s.18(2) of the Schedule, I am unable to consider whether a diagnosis of chronic pain takes the applicant out of the MIG, because the condition was not documented prior to the motor vehicle accident at issue before me.

24After reviewing the evidence provided relating to the applicant’s pre-accident medical history, I am unable to find he has proven that those conditions will prevent him from achieving maximal medical recovery under the cap or the MIG.

B. Psychological Impairments

25The applicant submits that the injuries he sustained in the accident are predominantly psychological and that takes him out of the MIG. He relies on the Tribunal decision of then Adjudicator Lester in BU v. Aviva Canada Inc.⁶ who determined that extreme to severe psychological issues took the applicant out of the MIG. I agree with Vice Chair Lester that the MIG does not apply to a person diagnosed with severe psychological impairments, as these are not just sequelae of the soft tissue injuries. However, I find that the applicant has not proven that he has severe to extreme psychological impairments.

26The applicant relies on the opinions of Dr. Pilowsky and Ms. White as expressed in their reports for support that he sustained severe psychological impairments from the accident that are not mere sequelae from his soft tissue injuries. I find Dr. Pilowsky’s opinion is not reliable for reasons discussed below. I give no weight to Ms. White’s opinion because she is a social worker and not qualified to make any diagnosis.

27Ms. White diagnosed the applicant with an adjustment disorder with mixed mood and chronic pain. The applicant submits that Ms. White’s diagnosis should be applied to the 2013 accident, but he provided no compelling reason why. The only comment Ms. White made about the 2013 accident was that it caused a re-injury to the applicant’s neck and shoulders. Ms. White reported that the applicant was referred to her for a mental health assessment due to pain arising from injury related physiological symptoms since December 24, 2011. That date is listed as the “date of loss” at the beginning of Ms. White’s report. Accordingly, I find that the purpose of Ms. White’s report was to address the applicant’s injuries from his 2011 accident.

28The applicant also submitted that I may infer that the diagnosis set out in Ms. White’s report is actually Dr. Azadian’s diagnosis because his credentials are listed at the beginning of the report and Ms. White stated that the diagnosis was Dr. Azadian’s. Dr. Azadian, however, did not sign the report or an Acknowledgment of Expert's Duty Form required under the LAT Rules. The diagnosis are reported to be based on the clinical interview of the applicant. Without the report being signed by Dr. Azadian, I have no reason to believe he conducted the clinical interview. If the diagnosis are Dr. Azadian’s, I am unable to give them much weight as there was no comparison between the applicant’s complaint’s before and after the 2013 accident and I do not know when Dr. Azadian formed his opinion or the basis for his opinion.

29The applicant testified that his psychological complaints consist of anger, impatience, and difficulty sleeping and concentrating in school. He denied having any other psychological complaints or problems. I accept the applicant’s testimony that he had difficulties with sleep prior to the accident. He did not provide any evidence that the accident made his pre-accident sleep difficulties any worse. Dr. Pilowsky reported that the applicant has poor sleep quality, but made no comment about it being a pre-accident complaint or whether it was any worse since the accident.

30Dr. Pilowsky’s opinion was that the applicant’s focus complaints were caused by the accident. I give little weight to her opinion because she did not comment on the applicant’s ADHD, its effect on his concentration, or his pre-accident focus complaints. Dr. Biswas testified that the applicant’s ADHD would account for his focus difficulties, but it was not caused by the accident. Her opinion was not challenged. Ms. White made no comment about the ADHD and is not qualified to do so.

31Dr. Pilowsky diagnosed the applicant with Persistent, Mild Moderate, Somatic Symptom Disorder with Predominant Pain, with secondary depressive symptoms and symptoms of Post-Traumatic Stress Disorder. Dr. Pilowsky’s diagnosis is very different from the results of the tests she administered to the applicant, which Dr. Pilowsky reported were consistent with mild anxiety, mild depression and that the applicant was coping with his pain complaints. Dr. Biswas testified that a diagnosis of a somatic pain disorder is inconsistent with someone who is coping relatively well with pain.

32Both Ms. White and Dr. Pilowsky reported that because of the accident, the applicant also had complaints of ongoing flashbacks of the accident, depression, a decrease in leisure activities that bring him joy, that it takes him longer to do self-care tasks, and that he has crying bouts. However, the applicant denied all of these symptoms at the hearing, and did not disclose them to Dr. Biswas.

33The applicant submits that I should give little weight to his denial of the psychological complaints listed by Dr. Pilowsky and Ms. White because Dr. Pilowsky found that he is stoic and unwilling to admit his psychological complaints to her. He relies on the MG. v Primmum⁷ decision that held that an applicant is not expected to reliably self-diagnose his symptoms or issues. In that case, MG did not believe that she had issues with depression or anxiety, but the test results of two psychologists indicated otherwise. The Adjudicator in that case accepted the more objective test results over the applicant’s self-report. I find the decision does not assist the applicant because the test results of two psychologists in this case, Dr. Biswas and Dr. Pilowsky, are consistent with the applicant’s testimony and the description of his symptoms to Dr. Biswas.

34The applicant’s submission that he underreported his symptoms because he “did not want anyone to think he was crazy,” is not supported by the evidence. The applicant was asked at the hearing if he denied having any psychological issues because he thought someone would think he was crazy. He disagreed and stated that he answered honestly. I do not find that the applicant underreported or failed to report his psychological complaints. The applicant’s testimony that he was impatient, angry, and having concentration and sleep difficulties are not a denial of psychological issues.

35I prefer the applicant’s testimony over Dr. Pilowsky’s report because she has not explained why she found the applicant was stoic and was not to be believed. There was no indication in Dr. Pilowsky’s report that she gave the applicant any validity tests that resulted in her conclusion the applicant was underreporting his symptoms. In fact, she reported that there was no reason to doubt his truthfulness. Dr. Biswas, on the other hand, did administer a validity test to the applicant, the Million Clinical Multi Axial Inventory, and found that, although the applicant’s results were skewed toward minimizing his symptoms, he had a valid profile. This means that the applicant was neither exaggerating nor underreporting and that Dr. Biswas could rely on the applicant’s test results, all of which indicated the applicant was not depressed, did not have anxiety and was handling his pain complaints. Based on the applicant’s test results and his interview, Dr. Biswas concluded the applicant presented as normal with no psychological diagnosis.

36Dr. Pilowsky did not explain the discrepancy between the applicant’s scores from her tests and her diagnosis or her opinion that the applicant underreported his complaints. She opined that the applicant’s acquired psychological limitations and pain from the accident continuously prevented him from engaging in substantially all of the activities in which he ordinarily engaged before. She reported that the applicant no longer engaged in his household and home maintenance tasks, educational activities, as well as family, social and recreational activities. This is not consistent with the applicant’s testimony that he stopped doing housekeeping activities because of the work injury to his hand in 2012 and that he still plays sports, but not as often because he is busy with university and not as many of his friends are around to play sports. He testified that he has had difficulty with a few of his university courses, but he was able to successfully upgrade his education as evidenced by obtaining his high school diploma and being admitted into university. Since Dr. Pilowsky’s report contains erroneous information, I find her opinion is more than likely based on erroneous information and is unreliable.

37I accept Dr. Biswas’ opinion over Dr. Pilowsky’s because Dr. Biswas’ opinion is consistent with the applicant’s report, history, test results and his testimony. Although the applicant did not tell Dr. Biswas about his 2011 accident, she was aware of it when forming her opinion. Dr. Pilowsky did not provide any evidence challenging Dr. Biswas opinion. The only challenge to Dr. Biswas was that she did not notice the applicant fidgeting. The applicant’s evidence was that he always fidgets. I do not find that diminishes Dr. Biswas’ opinion, including her opinion about the cause of ADHD or her interpretation of the applicant’s scores on Dr. Biswas’ tests in conjunction with the applicant’s clinical interview and medical history.

38The applicant failed to prove he suffered a psychological impairment from the accident that is not predominantly a minor injury because Dr. Pilowsky’s opinion is unreliable. The applicant’s focus and sleep difficulties pre-date the accident and his focus complaints are as a result of his ADHD, which is not accident related. The applicant has presented no evidence that his anger and impatience is a psychological impairment of such severity that it takes him out of the MIG.

C. Chronic Pain

39The applicant submits that he has chronic pain as diagnosed in Ms. White’s report and that it takes him out of the MIG. The respondent relies on the Tribunal decision of Vice Chair Flude in A.P. v. Aviva Canada⁸ and submits that a diagnosis of chronic pain and nothing more (such as a diagnosis of chronic pain syndrome), does not take a person out of the MIG. I agree with the respondent’s submission, which is supported by Adjudicator Lester in BU v. Aviva Canada Inc.,⁹ who held that the applicant has the onus to show the diagnosis of chronic pain is not merely the sequelae of the soft tissue injuries, but is the applicant’s predominant injury.

40The applicant agrees that chronic pain is not as severe as chronic pain syndrome, which was discussed in BU. v. Aviva. He submits that because there is no mention of chronic pain in the MIG, it is not merely the sequelae of soft tissue injuries. I disagree with the applicant. “Sequelae” means an aftereffect of a disease, condition, or injury.¹⁰ Pain is an obvious aftereffect or sequelae of an injury. Because the legislature did not list what the particular clinical sequelae of sprains, strains, contusions, abrasions or laceration are, it did not intend for the sequelae of those injuries or conditions to be limited to a specific list of items. For this reason, I reject the applicant’s submission. I find that pain does not take a person out of the MIG unless it is functionally disabling.

41In this case the applicant has not shown the diagnosis of chronic pain takes him out of the MIG. Dr. Biswas stated that given the applicant was able to cope well with his pain complaints, a diagnosis of chronic pain syndrome is not appropriate. There was no challenge to her opinion and I accept it. The applicant’s testimony, that his pain levels are at the same level as they were before the accident, does not support his submission that chronic pain, if he has it, takes him out of the MIG. Although the diagnosis is reported to be Dr. Azadian’s, I give it little weight because I do not have any reports or documentation from Dr. Azadian confirming he made the diagnosis, when he made the diagnosis and whether it was for the 2013 accident. Further, I already rejected the applicant’s submission that the opinions voiced in Ms. White’s report apply to injuries the applicant sustained in the 2013 accident.

42I find the diagnosis of chronic pain is not reliable and that the applicant has not shown that he has pain complaints from this accident or that it is not sequelae of the soft tissue injuries. Because the applicant sustained predominantly minor injuries from the accident, the MIG applies to him.

VI. NON-EARNER BENEFIT

43The test for entitlement to a non-earner benefit is set out in s.12(1) of the Schedule. The applicant must prove on a balance of probabilities that because of his accident injuries, he suffers from a complete inability to carry on a normal life within 104 weeks of the accident. Section 7(b) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

44The parties agree that the principles I must apply to determine the applicant’s entitlement to NEBs are found in the seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). These principles require a comparison of the applicant’s activities and life circumstances before the accident to those post-accident.

45I find that the applicant’s activities before the accident consisted of attending school, driving a vehicle, shopping, engaging in sexual relations and in sports such as volleyball, basketball, and soccer. He did not do much housekeeping anymore because of the work injury he suffered to his left hand in 2012.

46The applicant’s evidence was that after the accident he continued with his schooling and obtained his high school diploma. He then started in an engineering and science technology course at the University of Ontario Technical School in 2015 and continues to attend. He has had some difficulty with a couple of courses and will have to take them over. He no longer plays sports as often as he used to, but not because of any accident related injury. It is because he is busy with his studies and the people he used to play sports with are no longer around. He continues to drive a vehicle, to shop and to engage in sexual relations. He testified that the accident has had no effect on the activities he used to engage in before the accident. His evidence is supported by that of Dr. Bent, who testified that the applicant’s soft tissue injuries did not result in any functional physical impairment. I have not considered Dr. Pilowsky’s opinion as it is not reliable.

47Given the applicant’s testimony and the evidence of Dr. Bent and Dr. Biswas, I find the applicant does not have a complete inability to carry on a normal life because of the accident and is, therefore, not entitled to NEBs.

VII. SECTION 33 FORFEITURE

48Under s.33(1) of the Schedule, an applicant is required to provide an insurer with any information requested by the insurer that is reasonably required to determine the applicant’s entitlement to a benefit. The applicant is required to provide the information within 10 business days after receipt of the insurer’s request. Failure to provide the information within 10 days may result in the applicant not being paid any benefits until he provides the information. Under s. 33(8)(b) of the Schedule, if an insurer withholds benefits because the applicant was late in providing the required information, the insurer does not have to pay the applicant the benefits that were withheld unless the applicant has a reasonable excuse for being late.

49The respondent submits that it made at least 15 requests from July 2013 up to September 2016 for the applicant’s pre-accident medical records in order to determine whether the applicant had a pre-existing medical history that might take him out of the MIG. The respondent submits that the applicant did not provide the information within 10 business days of each request and provided no reason for his delays. I need not determine the issue because I have found that applicant is not entitled to any further benefits.

VIII. COSTS

50The respondent is required to show the applicant acted frivolously, vexatiously, or in bad faith in order to claim costs. The respondent made no submissions with respect to its claim for costs other than its written submission that the respondent incurred considerable costs. The applicant’s failure to comply with the case conference Adjudicator’s Order may have amounted to vexatious behaviour and may have merited a costs award. However, I am not prepared to order that costs be paid when I heard no submissions from either party on the issue and I heard nothing about the amount of costs requested by the respondent. For these reasons the respondent’s claim for costs is dismissed.

IX. DETERMINATION and ORDER

51The applicant sustained predominantly minor injuries as defined in the Schedule, subject to a cap of $3,500.00 and to treatment within the MIG. He is not entitled to the medical benefits and payment for cost of examinations claimed as he has reached the $3,500.00 cap.

52The applicant is not entitled to non-earner benefits.

53The respondent is not entitled to its costs of the proceeding.

54The applicant’s appeal is dismissed.

Released: February 14, 2018

___________________________

Deborah Neilson, Adjudicator

Footnotes

1. 1Whether the applicant’s injuries are minor injuries or whether the MIG applies were not listed as issues in the case conference Adjudicator’s Order as issues to be decided by me. Both parties, however, indicated in their submissions that I must determine whether the applicant sustained predominantly a minor injury and the applicability of the MIG. I agree.
2. 2The applicant confirmed at the start of the hearing that he was seeking payment for the cost of the examination and not for medical benefits set out in another treatment plan prepared by Dr. Pilowsky dated July 4, 2016 as set out in the case conference Order.
3. 3The issue of costs was first raised in the respondent’s submissions filed before the hearing in accordance with Rule 19.2 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) [“ LAT Rules”]. Accordingly I allowed the issue to be added.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635 (Ont. Div. Ct.)
5. 5The distal interphalangeal joint is the last joint near the tip of the finger.
6. 6BU v. Aviva Canada Inc., (16-000143/AABS, November 1, 2016) 2016 CanLII 96167 (ON LAT)
7. 7MG. v Primmum, 2017 CanLII 33672 (ON LAT)
8. 8A.P. v. Aviva Canada, (16-000045/AABS, September 1, 2016) 2016 CanLII 60728 (ON LAT)
9. 9supra., (16-000143/AABS, November 1, 2016)
10. 10https://www.merriam-webster.com/dictionary/sequela