J.L.C. v. RBC Insurance Company, 2019 CanLII 110122

Citation: J.L.C vs. RBC Insurance Company, 2019 ONLAT 18-007281/AABS

Tribunal File Number: 18-007281/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:

J.L.C.

Applicant

and

RBC Insurance Company

Respondent

DECISION

PANEL:

Rebecca Hines, Adjudicator

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

Louise Kanary, Counsel

HEARD:

In Writing on: April 8, 2019

OVERVIEW

1J.L.C. (the applicant) was injured in a motor vehicle accident on February 28, 2016. He applied for accident benefits from RBC Insurance Company (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied his claims for a medical benefit and a cost of examination expense. The applicant then applied for dispute resolution with the Licence Appeal Tribunal – Automobile Accident Benefit Services.

2A case conference was held and the parties were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. If the answer to the first question is no:

a) Is the applicant entitled to a medical benefit in the amount of $3,666.81 for chiropractic treatment recommended by Life Harmony Rehab Centre in a treatment plan (OCF-18) submitted on June 17, 2016, and denied on September 23, 2016?

b) Is the applicant entitled to payment for the cost of examination in the amount of $2,799.00 for a chronic pain assessment, recommended by Rehab First Inc. in a treatment plan (OCF-18) submitted on March 15, 2018, and denied on March 27, 2018?

c) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4For the reasons that follow, I find:

(i) The applicant is subject to treatment within the Minor Injury Guideline (the “MIG”).

(ii) The applicant is not entitled to the treatment plans claimed or interest as he has reached the $3,500 limit payable under the MIG.

PROCEDURAL ISSUE

5The applicant requested that the insurer’s examination (“IE”) report of Dr. Dharamshi, General Practitioner, dated February 13, 2019 be excluded as it was not served on the applicant in compliance with the Tribunal’s order. It was served on February 15, 2019, nineteen days after the production deadline of January 28, 2019 ordered by the Tribunal. The applicant relied on Rules 9.2 and 9.4 of the Licence Appeal Tribunal’s Common Rules of Practice and Procedure (the “Rules”). Rule 9.2 provides that a party to a hearing must disclose any document it intends to rely upon within the time ordered by the Tribunal. Rule 9.4 states that if a party does not comply with an order, they may not rely upon the document without the Tribunal’s consent. The respondent argued that the report should be allowed as the applicant submitted it as evidence as part of his document brief and relies upon it to support his position.

6I allow the submission of the IE report of Dr. Dharamshi. While I agree that the document was not served in accordance with the deadline provided in the Tribunal’s order, I find that it is relevant to the issues in dispute. Secondly, it was served two months prior to the written hearing date and in advance of the deadline for the applicant’s submissions. In my view, the applicant was not prejudiced as he had time to address it or could have asked for an adjournment if he required more time. I also agree with the respondent that the applicant does rely on the report in support of his position in his submissions. For these reasons, I exercise my discretion under Rule 9.4 and do not order that it be excluded.

BACKGROUND

7On February 28, 2016, the applicant was driving when he was hit by a vehicle making an unsafe left turn at an intersection, which caused a secondary collision with the applicant and a third-party vehicle. The airbags deployed and the applicant’s vehicle was deemed a total loss. The police and paramedics were not called to the scene and the applicant reported the accident at a self-reporting collision centre.

8The day after the accident, the applicant attended Lifeharmony Rehab Centre for rehabilitation treatment and continued treatment for seven months.

9At the time of the accident, the applicant was working part-time as a bartender working thirteen hours a week and was looking for full-time employment. In the year following the accident, he gained employment as a computer IT technician. The applicant did not take time off work because of his accident-related impairments.

10The applicant argues that his injuries are not minor as he suffers from chronic back pain as well as post-traumatic stress disorder (“PTSD”) and anxiety as a result of the accident. The onus is on the applicant to prove that his injuries are not minor.

11The respondent maintains that the applicant suffered uncomplicated soft-tissue injuries and that his impairments are minor. Furthermore, the applicant has not produced any reports by any expert diagnosing him with chronic pain or any psychological impairment. Therefore, the applicant is not entitled to the medical benefit or cost of examination claimed as the MIG limit has been exhausted.

ANALYSIS

12Section 3 of the Schedule provides the following definition of a minor injury:

a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

13Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500. Certain accident related medical impairments may remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The $3,500 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500 limit.

14To date, the respondent has paid $3,500 for the applicant’s medical and rehabilitation benefits so the MIG limit has been exhausted.

Does the applicant suffer from a physical impairment that would remove him from the MIG?

15For the reasons that follow, I find that the applicant’s physical injuries fall within the MIG.

16I find the evidence relied upon by the applicant supports that his impairments fall within the MIG. For example, the applicant relied on various insurance forms submitted to the respondent in support that his injuries are not minor. The disability certificate (“OCF-3”) dated February 29, 2016 submitted by Lifeharmony Rehab Centre listed the following impairments: “sprain and strain of the thoracic spine, sprain and strain of lumbar spine, injury of nerves at hip and thigh level, back pain, cervicalgia, pain in shoulder and lower limb.” In my view, the above-noted impairments fit within the definition of the MIG.

17The applicant also submitted various treatment and assessment plans (“OCF-18s”) prepared by Rehab First Inc. that noted that the applicant suffered from persisting pain over his neck, left shoulder, knee, upper and mid back. Moreover, that this pain limited the applicant’s tolerance for sitting, standing, walking, lifting and carrying. I did not find the insurance forms compelling evidence that the applicant suffers from chronic pain or has any functional limitations as no objective evidence was submitted to support such a finding. For example, there were no progress reports or log notes submitted by either clinic. Further, there was insufficient evidence that either Lifeharmony or Rehab First had conducted any physical examination of the applicant. For instance, the occupational therapist who authored the treatment plan for the chronic pain assessment conducted his examination by a telephone interview with the applicant. For these reasons, I give the OCF-18s and the recommendations within very little weight.

18The applicant’s submissions were also inconsistent as he argued that his physical injuries interfered with his ability to carry out his activities of employment. However, he returned to work as a part-time bartender following the accident and got a job as an IT technician within the same year. He argued that his employment activities caused him pain. However, the applicant did not submit any objective evidence or provide examples of how his physical injuries interfered with his job.

19I did not find the clinical notes and records (“CNRS”) of the applicant’s family doctors to be compelling. Of significance is the absence of any accident related complaints in the first year following the accident and the large gaps in the records. The respondent submitted the CNRs of Dr. Liu, the applicant’s family doctor from 2016 in which there are two visits in October and November of 2016. Both visits dealt with the applicant’s complaints of a skin rash and make no reference to any accident related complaints. I find the fact that the applicant does not mention any accident related impairment during this period to his family doctor noteworthy as this would typically be when an individual is most vulnerable.

20The applicant started seeing Dr. Yeung, a new family doctor in March 2017 (over one year post-accident). In 2017, there are a few references to the applicant complaining of ongoing back pain. Throughout the CNRs, Dr. Yeung diagnoses the applicant with back strain, prescribes pain killers and recommends that he participate in active rehabilitation at his gym. In 2018, there is a spike in the applicant’s attendances at Dr. Yeung’s office where back pain is consistently reported. The applicant submitted Dr. Yeung’s letter dated May 3, 2018, which recommends that the applicant continue with physiotherapy as a result of his accident related back pain. The applicant contends that the fact that his pain has persisted for more than six months is evidence that he suffers from chronic pain. However, despite the applicant’s ongoing complaints of back pain, Dr. Yeung does not refer the applicant to any specialist for further investigation nor does Dr. Yeung define the applicant’s complaints as chronic pain or diagnose him with chronic pain syndrome. The applicant’s complaints of back pain in Dr. Yeung’s CNRs were all self-reported. What I found lacking from the applicant’s evidence was a diagnosis of chronic pain or chronic pain syndrome by any medical doctor or expert.

21By contrast, the respondent submitted the IE report of Dr. Tepperman, General Practitioner, dated August 22, 2016. The purpose of this assessment was to determine whether the applicant’s injuries were minor. Dr. Tepperman found that the applicant’s physical examination was normal and his range of motion was 100%. Dr. Tepperman opined that the applicant suffered from uncomplicated soft-tissue injuries which have resolved and that the applicant’s injuries fit within the MIG. Further, Dr. Tepperman found that treatment outside of the MIG would not be reasonable or necessary.

22Finally, the applicant spent a large portion of his submissions pointing out the flaws in the respondent’s IEs. Unfortunately, the applicant did not submit any reports for me to compare them to. The applicant criticizes the fact that Dr. Tepperman is not an expert in chronic pain and as a result was not qualified to do the assessment. However, Dr. Tepperman was not assessing whether or not the applicant suffers from chronic pain. Rather, Dr. Tepperman was determining whether the applicant’s impairments fit within the MIG. Further, the applicant argues that Dr. Tepperman did not have the family doctor’s CNRs or any other records at the time of his assessment and did not do an addendum report once they were received. The evidence submitted supports that there is no relevant CNRs for the period of Dr. Tepperman’s assessment.

23The applicant admits that he did not submit any CNRS to the respondent until September 2017. As already highlighted, the 2017 records would have been of limited value as the applicant attended Dr. Yeung’s office on very few occasions. By administrative error, the respondent failed to provide the applicant’s CNRs to Dr. Dharamshi for the February 2019 IE, which also determined that the applicant suffered a minor injury. The applicant argues that the findings of this assessment should not be given any weight yet at the same time relies on the IE report as support that he suffers from chronic pain. Based upon the evidence before me, I found Dr. Dharamshi’s IE unnecessary and of limited value. Ultimately, the onus is on the applicant to prove on a balance of probabilities that his injuries are not minor. Even if I were to give the respondent’s IEs little weight, the onus remains on the applicant. The applicant has not met his onus to prove that he sustained impairments as a result of the accident that would take him out of the MIG.

24For the above-noted reasons, I find the physical impairments sustained by the applicant fall within the MIG.

Does the applicant suffer from a psychological impairment which would remove him from the MIG?

25I do not find that the applicant suffered from an accident related psychological impairment which would remove him from the MIG.

26The applicant did not provide any compelling evidence which supports that he suffers from an accident related psychological impairment. The applicant contends that he suffers from PTSD and anxiety which results in him being hypervigilant, anxious and fearful when driving. The applicant relies on the CNRs of Dr. Yeung in support of his position. In Dr. Yeung’s CNRs, there are a few entries which note: “R/O (rule out) PTSD, anxiety”. I agree with the respondent that these CNRs do not constitute a psychological diagnosis. Nor does Dr. Yeung ever prescribe any medication or make any referrals with respect to the applicant’s psychological complaints. What I find missing from the evidence is a report or diagnosis of any qualified expert opining on any psychological diagnosis.

27The applicant has not met his onus in proving on a balance of probabilities that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG.

Does the applicant suffer from a pre-existing condition which would prevent him from achieving maximal medical recovery within the MIG?

28The applicant did not submit any argument or evidence that he suffers from a pre-existing condition which would prevent him from achieving maximal medical recovery within the MIG.

29For the above reasons, I find that the applicant suffered a minor injury and is subject to the $3500 limit within the MIG. Therefore, he is not entitled to the disputed treatment plans or interest as the MIG limit has been exhausted.

ORDER

30This application is dismissed.