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:
A.S.
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Piera A. Segreto, counsel
For the Respondent: O. Itse Ezomo, counsel
Hearing in Writing: October 1, 2018
OVERVIEW
1The applicant, A.S., was injured in a motor vehicle accident on April 22, 2017, when his vehicle was hit by another vehicle. EMS attended at the scene to assist the applicant. Subsequent to the accident, the applicant sought treatment from his family physician and from [a treatment centre]. The applicant’s vehicle was written off as a result of the accident. At the time of the accident, the applicant was retired but leading an active life.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). Some of the benefits were partially granted, while others were denied by the respondent insurer. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the Tribunal).
ISSUES IN DISPUTE
3The issues in dispute are:
a) Are the applicant’s injuries predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline?
b) Is the applicant entitled to receive Non-Earner Benefits in the amount of $185.00 weekly for the period May 20, 2017 to date and ongoing?
c) Is the applicant entitled to receive a medical benefit in the amount of $1,045.00 for physiotherapy services recommended by [a Rehab and Wellness Clinic] in a treatment plan submitted on January 8, 2018 and denied by the respondent on January 10, 2018?
d) Is the applicant entitled to receive a medical benefit in the amount of $150.00, representing an unpaid balance remaining of the initial claim for $1,300.00, for physiotherapy services recommended by [a Rehab and Wellness Clinic] in treatment plan that was submitted on November 21, 2017 and denied by the respondent on December 4, 2017?
e) Is the applicant entitled to receive payments for expenses in the amount of $238.46 for fire and emergency services, submitted on June 15, 2017 and denied by the respondent on June 27, 2017?
f) Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of benefits?
g) Is the applicant entitled to receive interest on the overdue amounts?
RESULT
4For reasons set out below, I find that the applicant is not entitled to the benefits and expenses claimed and, thus, no interest is payable.
ANALYSIS
5As some of the benefits were denied due to the respondent’s determination that the applicant’s injuries fall under the Minor Injury Guideline, I will begin my analysis with that determination.
Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
Definition of MIG and burden of proof
6The term “minor injury” is defined in s. 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 all defined in s. 3, collectively referred as “soft tissue injuries” in this decision. S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to a total of $3,500.
7If there is compelling evidence of a pre-existing condition that would limit the applicant’s ability to recover if subject to the monetary limit for minor injuries, then the applicant’s claim will not be subject to the MIG.
8Further the definition of Minor Injury under the Schedule does not include any psychological or psycho-emotional impairment.
9The applicant has the burden of proving that his injuries fall outside of the MIG and are not subject to the $3,500 treatment limit in s. 18 of the Schedule. Specifically, the applicant has the burden of showing that the injuries are not minor injuries as defined by the Schedule, commonly known as “soft tissue injuries”.
Applicant’s Injuries and Treatment As a Result of the Accident
10I began by examining the injuries sustained by the applicant as a result of the accident.
11The applicant first sought medical treatment on May 2, 2017, about 10 days after the accident, from his family physician, Dr. Martin Simonik. He reported pain and bruising in his left shoulder and pain in his neck and back as a result of the accident. Dr. Simonik arranged for an ultrasound of the applicant’s shoulder which revealed that, as compared to a previous ultrasound report from October, 2013, the calcifications in the supraspinatus tendon were larger, but otherwise no other changes were noted.
12Dr. Simonik opined that the injuries sustained by the applicant as a result of the accident were strain/bruise of the left shoulder and bruising of the chest and right upper arm.
13About four months after the accident, the applicant began receiving treatment at [a Rehab and Wellness Clinic] (“Rehab & Wellness”) on September 8, 2017. At the time, the applicant reported a slightly bruised shoulder, no change in sleeping pattern and no other symptoms. Ten days later, the applicant completed an intake form at Rehab & Wellness where he reported no presenting complaints and no pain. Two months later, on November 21, 2017, chiropractor Dr. Andrea Nalli at Rehab & Wellness examined the applicant and concluded that the applicant had no pain in the cervical, thoracic and lumbar areas, and that the bruises in the chest were gone. The applicant returned to Rehab & Wellness to see Dr. Nalli in January, 2018 after he was involved in another incident as a result of which he pulled his left hip and had pain squatting and shovelling snow.
14The applicant underwent an Insurer’s Medical Examination (IME) on July 11, 2018 when he was seen by Dr. Kopyto, a general practitioner. The applicant reported to Dr. Kopyto that he was “now OK” and denied any further accident-related symptoms. He stated he was “fine” and that aside from “age-related aches and pains, nothing was bothering him. The applicant denied any further headache or left shoulder concerns, and reported no numbness, weakness, or tingling anywhere. He described his mood as “fine” and denied any changes in his sleep quality as a result of the accident.
Analysis
15I find that the injuries sustained by the applicant as a result of the accident, as described in the medical reports, including those submitted by the applicant, are sprain and strain and other “soft tissue injuries”.
16I then consider whether the applicant has any pre-existing conditions that may take him out of the MIG guidelines.
17As pointed out by the respondent, citing case law1, the applicant has an obligation to establish how his pre-existing condition, if any, will impede his recovery under the MIG.
18The only evidence before me was the ultrasound report which shows that there has been some change in the applicant’s condition since the accident, notably the larger calcifications in his shoulder tendon since 2013. I note that the applicant has not submitted any evidence to show that this was a result of the 2017 accident. I also note the applicant’s report to Dr. Kopyto denying any left shoulder concern. I find the applicant has failed to show how the pre-existing condition has prevented him from achieving maximal medical recovery from the minor injury.
19I finally consider whether the applicant suffers from any psychological or psycho emotional impairment as a result of the accident. The applicant has not provided any medical information in this regard, other than stating that he no longer socializes at the rate he used to, and no longer visits his family and friends.
20In view of the above, I find the applicant’s injuries are predominantly minor as defined in the Schedule and subject to treatment within the Minor Injury Guideline.
Is the applicant entitled to receive a medical benefit in the amount of $150.00, representing an unpaid balance remaining of the initial claim for $1,300.00, for physiotherapy services recommended by [a Rehab and Wellness Clinic] in a treatment plan that was submitted on November 21, 2017, denied by the respondent on December 4, 2017?
21The respondent stated that the outstanding amount $150.00 in benefits was denied because the applicant’s impairment was determined to be predominantly a minor injury, and the applicant has exhausted the $3,500 limit. In view of my finding above, I dismiss the applicant’s claim benefits in this regard.
Is the applicant entitled to receive a medical benefit in the amount of $1,045.00 for physiotherapy services recommended by [a Rehab and Wellness Clinic] in a treatment plan that was submitted on January 8, 2018, denied by the respondent on January 10, 2018?
22In view of my finding that the applicant’s injuries fall within the MIG, and the applicant has exhausted the $3,500 limit, I dismiss the applicant’s claim benefits in this regard.
23Further, the burden is on the applicant to establish, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary. As noted above, the applicant himself has reported to Dr. Kopyto that he was “fine” and apart from age-related issues, was otherwise not in pain, and had no numbness or tingling issues. The applicant has not pointed to any information or medical report that would support his claim that the benefit sought was reasonable and necessary.
Is the applicant entitled to receive payments for expenses in the amount of $238.46 for fire and emergency services, submitted on June 15, 2017, denied by the respondent June 27, 2017?
24The respondent submitted that the expense for fire and emergency services was already paid by the insurer to the third party driver involved in the accident, and the proof of said payment was provided by the respondent.
25The applicant did not make any submission in this regard.
26I find in the record, a “screen shot” made by a claim representative from the Co-Operators showing that they have paid the City of Mississauga $238.46 for fire and emergency services.
27In view of the evidence before me, and the lack of submission from the applicant suggesting otherwise, I dismiss the applicant’s claim for the expense for fire and emergency services.
Is the applicant entitled to receive Non-Earner Benefits in the amount of $185.00 weekly for the period May 20, 2017 to date ongoing, denied by the respondent?
28To qualify for NEB, s.12(1) of the Schedule states that an insured person has to demonstrate that he/she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
29The applicant submitted that he was a very healthy man for his age pre-accident. After the accident, while the applicant does make valid attempts at performing activities he once did pre-accident, he could only somewhat complete them, not fully, and with pain. While the applicant acknowledges that he is capable of performing some activity, it is not enough to make it meaningful, and that if there are significant restrictions when performing an activity, this will not amount to “engaging” in that same activity.
30At the time of the accident, the applicant submitted that he was an avid golfer, squash player and traveler. Although he has returned to some of these activities, he does not play at the same rate he used to and does not enjoy it the same. Pre-accident, he enjoyed spending time with his children and caring for his grandchildren. Since the accident, however, he no longer socializes at the rate he used to, and no longer visits his family and friends. Prior to the accident, the applicant submitted that he was fully independent with his personal care, housekeeping and activities of daily living. After the accident, he suffered a complete inability to perform pre-accident housekeeping duties and other daily living activities.
31The respondent submitted that the applicant has failed to provide sufficient or any evidence to support his claim that he suffers a complete inability to carry on a normal life, and that the applicant carries the burden of proving he has continuously prevented from engaging in “substantially all” activities in which he engaged in before the accident, as required by s.7 of the Schedule, and reiterated in case law.2
32I agree with the respondent that the applicant’s claim in this regard is not supported by the evidence before me.
33I note, first of all, that the applicant’s family physician, while completing a disability certificate for the applicant, answered “no” to the question of whether the applicant suffers a complete inability to carry on a normal life.
34I also note that the applicant’s submission concerning his ability to engage in pre-accident activities contradicted his report to Dr. Kopyto during the IME when he stated there were no changes in his activities of daily living as a result of the accident. The applicant further stated to Dr. Kopyto that he continues to play “a lot of golf” and is actively involved in the care of his grandchildren.
35The applicant also reported to Dr. Kopyto that he remains independent with his self-care and is able to complete all his pre-accident housekeeping and home maintenance tasks. He also reported that he continues to drive but is hypervigilant when doing so.
36The medical evidence does not support the applicant’s submission that he has a complete inability to carry on a normal life, and there is no other evidence to support his assertion.
37While the applicant may well be engaging in certain daily activities on a less frequent basis, as compared to his pre-accident life, he has failed to meet the evidentiary burden of demonstrating that he meets the test for NEB.
Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of benefits?
38In support of his claim for special award, the applicant submitted that the respondent has:
i. Failed or refused to pay NEB despite being in possession of medical documentation outlining the applicant’s disability;
ii. Acted in a “prohibited manner”, defined in Part XI of the Schedule in a manner that is subjective or arbitrary and includes conduct “resulting in unreasonable delay, or resistance, to the fair adjustment and settlement of claims”.
39The applicant further submitted that he has endured financial and emotional distress as a result of the respondent’s conduct.
40Apart from failing to provide any evidence demonstrating what, if any, financial and emotional distress that he has suffered, the applicant has also failed to demonstrate the conduct of the respondent was in any way arbitrary or unfair. The respondent has approved benefits up to the MIG limits. The denial of benefits, as noted above, was well-supported by the medical evidence. I agree with the respondent that no specific particulars have been provided by the applicant in support of his claim for special award. I therefore dismiss the applicant’s claim for special award.
Is the applicant entitled to interest for the overdue payment of benefits?
41In view of my findings above, the applicant is not entitled to interest.
FINDING & ORDER
42I find the applicant is not entitled to the following benefits and expenses claimed and no interest is payable on these benefits:
i. Non-Earner Benefits in the amount of $185.00 weekly for the period May 20, 2017 to date and ongoing;
ii. a medical benefit in the amount of $1,045.00 for physiotherapy services recommended by [a Rehab and Wellness Clinic];
iii. a medical benefit in the amount of $150.00, representing an unpaid balance remaining of the initial claim for $1,300.00, for physiotherapy services recommended by [a Rehab and Wellness Clinic]; and
iv. payments for expenses in the amount of $238.46 for fire and emergency services
43I further find that the applicant is not entitled to special award under Ontario Regulation 664.
Released: February 19, 2019
___________________________
Avvy Go
Adjudicator
Footnotes
- 17-006513 v. The Co-Operators Insurance Company 2018 CanLII 81959 (ON LAT), paras 21-22, and 17-003571 v. Certas Direct Insurance Direct, 2018 CanLII 39374 (ON LAT), para.24
- 17-003732 v. Royal and Sun Alliance, para. 29 (ON LAT)