M.D. v. The Co-operators General Insurance Company, 2019 CanLII 110104

Citation: M.D. v. The Co-operators General Insurance Company, 2019 ONLAT 18-009426/AABS

Date: October 29, 2019

Tribunal File Number: 18-009426/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

M.D.

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION AND ORDER

PANEL:

Marisa Victor, Adjudicator

Appearances:

For the Applicant:

Frank Calcagni, Counsel

For the Respondent:

Gabriel Flatt, Counsel

Heard:

In Writing: June 24, 2019

OVERVIEW

1The applicant, M.D., was involved in an automobile accident on June 11, 2014, and sought accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent (“Co-operators”) and submitted an application to the Licence Appeals Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

2Co-operators denied M.D.’s claims because it determined that her injuries fit the definition of “minor injury” prescribed by ss. 3(1) of the Schedule, and therefore fall within the Minor Injury Guideline (the “MIG”).¹

3M.D.’s position is that her injuries fall outside the MIG. If M.D.’s position is correct, then I must address whether the medical benefits in dispute are reasonable and necessary for the treatment of her injuries.

4If Co-operators’ position is correct, then M.D. is subject to a $3,500 limit on medical and rehabilitation benefits prescribed by ss. 18(1) of the Schedule. As M.D. has already exhausted those benefits, no further benefits would be payable.

ISSUES

5The following are the issues in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500 limit in the MIG?

ii. Is the applicant entitled to a medical benefit in the amount of $3,832.11 for chiropractic and physiotherapy treatment recommended by Stoney Creek Rehabilitation & Wellness in a treatment plan submitted on May 25, 2016, and denied on October 3, 2016?

iii. Is the applicant entitled to a medical benefit in the amount of $2,018.44 for massage treatment recommended by Stoney Creek Rehabilitation & Wellness in a treatment plan submitted on May 25, 2016, and denied on October 3, 2016?

iv. Is the applicant entitled to a medical benefit in the amount of $187.73 for chiropractic treatment recommended by Stoney Creek Rehabilitation & Wellness in a treatment plan submitted on May 25, 2016, and denied on June 22, 2016?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

vii. Are costs payable to the respondent under Rule 19?

RESULT

6The applicant has failed to establish on a balance of probabilities that she suffers from injuries that are outside of the MIG. As the applicant has already exhausted the $3,500 MIG limit, she is not entitled to the chiropractic, physiotherapy or massage treatment claimed. The applicant is not entitled to interest as there are no overdue amounts owing. There will be no award under Ontario Regulation 664. There are no costs payable.

ISSUE I – ARE THE APPLICANT’S INJURIES PREDOMINANTLY MINOR INJURIES?

The MIG

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in ss. 3(1) of the Schedule as “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.” Subsection 18(1) of the Schedule provides for a cap of $3,500 in medical and rehabilitation benefits for the treatment predominantly minor injuries.

8Subsection 18(2) further provides that the $3,500 limit does not apply to an insured person with a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery under the cap.

9The onus is on the applicant to prove on a balance of probabilities that her entitlement to medical benefits is not subject to the MIG.²

Did The Applicant Sustain Predominantly Minor Injuries?

10The applicant claims that she is out of the MIG based on concussion, post concussion syndrome and chronic pain.

11The applicant claims that she was injured in a previous motor vehicle accident (“previous MVA”) on July 1, 2010. She states that she suffers from pain in her shoulders, right knee, right ankle, mid and low back pain as well as headaches as a result of that accident. She states that these injuries have been exacerbated by the subject accident.

12To support her claim, M.D. relies on:

i. Her disability certificates;

ii. Emergency Room record dated June 11, 2014;

iii. Clinical notes and records from her family doctor from 2010 to 2016;

iv. Clinical notes and records from Stoney Creek Rehab and Wellness; and

v. Dr. Gomez-Vargas’ neurology report dated March 31, 2019.

13The respondent relies on the insurer’s examination (“IE”) by Dr. Feloui, physiatrist, on September 2, 2016.

14After my review of the evidence, I find that the evidence fails to establish that the applicant’s injuries are outside the MIG.

15The applicant has not established that she suffered a concussion, post-concussion syndrome or chronic pain such that the MIG would not apply to her. None of these are included in the definition of “minor injuries” and therefore those injuries would fall outside the MIG.

16The applicant relies on the notation of concussion in the disability certificate (OCF-3) submitted by Stoney Creek on dated May 25, 2016. I do not find that the OCF-3 alone is sufficient evidence of concussion symptoms. The decision relied on by the applicant, 17-007714 v Unifund Assurance Company, 2018 CanLII 141012 (ON LAT) only supports that if a concussion or post-concussion symptoms are established, those injuries would be outside the MIG. In that case, the applicant’s reliance on the clinical notes and records of the family doctor one day after the accident and the diagnosis by an orthopaedic surgeon three years after the accident did not establish a concussion. In this case, as discussed below, I do not find that applicant has shown on a balance of probabilities that she suffers from a concussion or post-concussion symptoms.

17The applicant’s initial hospital report of June 11, 2014 does not support a concussion. In the hospital report, the applicant is reported as saying that during the accident she hit her head and was dizzy and nauseous. However, the applicant left the hospital before being seen by a doctor.

18The applicant then visited her family doctor the day after the accident and reported the same complaints as she had at hospital. The family doctor notes “a head injury,” however, there are no other details, no referrals, and no follow-up visits that support her complaints of a concussion or post-concussion symptoms over time. On March 23, 2015, there is one further entry by the family doctor noting “a:chronic pain” related to back pain. There are no further entries regarding treatment or continuing back pain issues. For this condition to be considered chronic, there should be further complaints or notations in the family doctor’s records, or other medical practitioners, over a period of time in order to establish that the condition is chronic. I do not find that this document establishes concussion, post-concussion or chronic pain.

19The applicant retained Dr. Gomez-Vargas, a neurologist, to assess her and produce a report. Dr. Gomez-Vargas’ neurology report, which is five years post-accident, notes a concussion in relation to the previous MVA only. The report states that the accident has aggravated pre-accident symptoms. Dr. Gomez-Vargas states that continuing headaches are partially due to overmedication. He suggests that the applicant may have chronic pain but does not diagnose it. He does not diagnose a concussion or chronic pain as conditions arising out of the accident. Further, the only past medical documents the neurologist reviewed were two Stoney Creek chiropractic treatment plans dated June 13, 2016 and May 24, 2016. Of note, there are no clinical notes and records or referrals over a period of time since the accident relating to a concussion, post-concussion symptoms or chronic pain. I do not find the neurologist report persuasive in showing the applicant suffers from a concussion, post-concussion symptoms or chronic pain.

20The applicant has also failed to show that she suffers from concussion, post-concussion or chronic pain symptoms through changes to her lifestyle and quality of living. She has continued to work full time, missing only three days of work immediately following the accident. She reported to the neurologist that her injuries have affected her quality of life and her efficiency in performing daily living activities however details were lacking. There is a brief comment that she previously played soccer and basketball and no longer engages in these activities but there is little detail to support that she stopped as a result of the accident. There is no discussion of when she last played sports, what level, how often, with whom and when she tried to resume these activities. I find this evidence lacking.

21The respondent has filed surveillance and social media evidence purporting to show the applicant leading a normal life. I place little weight on the respondent’s evidence given the surveillance took place on only one day and did not show her engaging in any complained about activities such as grocery shopping, vacuuming or housekeeping. In addition, the surveillance evidence does not address whether the applicant is less efficient in her daily activities. I agree with the applicant that the surveillance evidence does not contradict anything the applicant reported to her assessors. I also agree with the applicant that there is no requirement for injured persons to share their medical or pain symptoms on social media and the lack therefore of such comments is not evidence. I do not find that the social media posts provide evidence as to whether or not the applicant suffers from a concussion, post-concussion or chronic pain symptoms.

22Nevertheless, on the totality of the evidence presented I find the applicant has failed to show on a balance of probabilities that she suffers from a concussion, post-concussion symptoms or chronic pain through changes in her lifestyle and quality of living.

23As the applicant has failed to establish that her injuries fall outside the MIG, I do not need to answer issues ii - iv as the applicant has exhausted the $3,500 limit for treatment within the MIG and no further benefits are payable.

24Further, on issue v, the applicant is not entitled to interest as there are no overdue amounts owing.

ISSUE VI – IS THE APPLICANT ENTITLED TO AN AWARD UNDER ONTARIO REGULATION 664 BECAUSE THE RESPONDENT UNREASONABLY WITHHELD OR DELAYED THE PAYMENT OF BENEFITS?

25The applicant submits that she should be granted an award on the basis that the respondent unreasonably withheld benefits.

26As there are no benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there will be no award under Ontario Regulation 664.

ISSUE VII – ARE COSTS PAYABLE TO THE RESPONDENT UNDER RULE 19?

27The respondent, in its submissions, requested that the claim for an award be dismissed with costs. Rule 19 of the Tribunal’s Common Rules of Practice and Procedure provides that the Tribunal may award costs when a party has acted unreasonably, frivolously, vexatiously or in bad faith.

28The respondent failed to state in its submissions what actions the applicant had taken that were unreasonable, frivolous, vexatious or in bad faith.

29No costs shall be granted.

CONCLUSION

30The applicant has failed to establish on a balance of probabilities that she suffers from injuries that are outside of the MIG. As the applicant has already exhausted the $3,500 limit, she is not entitled to the chiropractic, physiotherapy or massage treatment claimed.

31As there are no overdue payment of benefits, the applicant is not entitled to interest.

32As there are no benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits, there will be no award under Ontario Regulation 664.

33There are no costs payable pursuant to Rule 19 of the Rules.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.
2. 2Scarlett v Belair Insurance, 2015 ONSC 3635.