L. B. v. Economical Insurance Company, 2019 CanLII 22187

Licence Appeal Tribunal

Tribunal File No.: 18-001471/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:

L. B. Applicant

and

Economical Insurance Company Respondent

DECISION

ADJUDICATOR: Nidhi Punyarthi

APPEARANCES:

For the Applicant: Anna Stoll, Counsel

For the Respondent: Sven Mascarenhas, Counsel

Heard in writing on: October 9, 2018

OVERVIEW

1On November 14, 2016, the applicant was involved in an accident. She then sought benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 1, 2010 ("Schedule"). The respondent denied her claim for benefits, and she applied to the Licence Appeal Tribunal ("Tribunal").

2This matter came before me for a hearing in-writing.

BACKGROUND

3The main area of disagreement between the parties is whether the applicant's injuries are "minor" under the Schedule. The classification of an applicant's injuries is significant because it affects the limits of medical and rehabilitation benefits available. If an applicant has a "minor injury" as defined under the Schedule, the applicant is limited to $3,500 in medical and rehabilitation benefits.

4The applicant states that she has more than a minor injury for two reasons:

a. She states that she has a pre-existing condition that prevents her from achieving maximal recovery within the $3,500 limit (an exception set out in Section 18(2) of the Schedule); and

b. She states that she has chronic pain.

5The respondent states that the applicant has not met her burden of proving either of the two above exceptions, and that her benefits were properly denied because she has a minor injury and has exhausted the applicable limits.

ISSUES IN DISPUTE IN THIS APPLICATION

6I have been asked to determine the following issues:

a. Do the applicant's injuries fall outside of the "minor injury" category because she has:

i. a pre-existing condition that meets the requirements of Section 18(2); or

ii. a chronic pain condition?

b. If the applicant is found to fall outside of the "minor injury" category for either of the two above reasons:

iii. Is she entitled to payment of a treatment plan (OCF-18) in the amount of $1,169.69 for physiotherapy and massage therapy by Denise Vandermeulen that was submitted on April 12, 2017 and denied on April 25, 2017?

iv. Is she entitled to payment of a treatment plan (OCF-18) in the amount of $3,448.94 for physiotherapy and massage therapy by Denise Vandermeulen that was submitted on February 1, 2018 and denied on February 15, 2018?

v. Is she entitled to payment of a treatment plan (OCF-18) in the amount of $1,110.00 for physiotherapy by Dave Zelibka that was submitted on May 10, 2018 and denied on June 7, 2018?

vi. Is she entitled to interest if any of these three treatment plans are found to be due and owing to her?

c. Is the applicant entitled to an award under Section 10 of Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant (a "special award")?

PRE-HEARING MOTION AND RESULT

7The respondent brought a motion at the outset of the hearing, asking me to not consider the applicant's reply submissions on the basis that they included new evidence that had not been attached to the applicant's main submissions. In her response to the motion, the applicant stated that these documents were included in error.

8The right of reply is a limited one. As a general rule, parties are expected to make the entirety of their cases in their main submissions. New evidence as part of a reply is not permitted, because the respondent does not have the opportunity to respond to new evidence that is tendered as part of a reply.¹ To the extent that the applicant has filed new evidence with her reply, that new evidence is improper and should be struck.

9Therefore, I will not consider any new evidence that was attached to the applicant's reply submissions. That new evidence, along with the submissions referring to it, has been struck from the evidentiary record.

10The respondent has asked that I order costs against the applicant. I do not find that an order for costs against the applicant is warranted. In my view, the conduct of the applicant in filing the improper reply submissions did not amount to unreasonable, vexatious, frivolous or bad faith conduct as indicated in Rule 19 of the Common Rules of Practice.

DECISION ON THE ISSUES IN DISPUTE

11Based on the evidence before me, I was not satisfied that the applicant has a chronic pain condition that removes her from the minor injury guideline. I was also not satisfied of a key requirement under Section 18(2) of the Schedule: that her pre-existing condition of sciatica prevents her from achieving maximal recovery from her accident-caused injuries within the minor injury limits.

12I made this finding for the following reasons:

a. A number of the applicant's treating practitioners have submitted contradictory forms to the respondent. Some do not make any mention of a pre-existing condition preventing recovery.

b. The opinion of Dr. Keith Sequiera in relation to the applicant's pre-existing condition is generic and does not explain how her pre-existing condition would affect her recovery in her individual case.

c. The applicant's ongoing leg pain is attributed to other reasons such as work-related strain.

13Accordingly, I was not persuaded that the applicant's pre-existing sciatica was the basis for preventing maximal recovery from her accident-caused injuries within the minor injury limits. Consequently, I found that she was not entitled to the treatment plans, interest or special award as claimed.

ANALYSIS

A. The applicant does not fall outside of the minor injury category

14The applicant has the burden of proving on a balance of probabilities that she falls within either of the claimed exceptions to the minor injury category. One of the exceptions claimed by the applicant was a chronic pain condition. The applicant cited a number of cases that applied this exception to the minor injury category.

15I did not have in the evidence before me a diagnosis of the applicant's claimed chronic pain condition. None of the medical specialists whose reports and notes were filed with me had the area of expertise to diagnose the applicant with the specific condition of chronic pain. I was not satisfied, on the basis of the various reports presented by the medical specialists by both parties, that the applicant had a chronic pain condition that had the effect of removing her from the minor injury category.

16In respect of the pre-existing condition exemption, the applicant had to satisfy me, under Section 18(2) of the Schedule, that:

a. She had a pre-existing condition that was documented by a medical practitioner before the accident; and that

b. This same pre-existing condition prevents her from achieving maximal recovery from her accident-caused injuries within the minor injury limits.

17I am satisfied that the applicant had a pre-existing condition of sciatica that was documented by a medical practitioner before the accident. The documents provided in evidence to me in this regard were:

i. a note from her family doctor pre-dating the accident that indicated "severe back pain" as well as a referral to an MRI; and

ii. a reference with respect to the applicant's "clinical history" on the MRI Consultation Report dated November 30, 2016. Even though this MRI was taken after the accident, the referral for it was made before the accident. The referral notes showed a clinical history of "severe R sciatica neuralgia" and "50-year-old female with severe right sciatica." That MRI found degenerative changes and did not refer to the accident.

18I am satisfied that the pre-existing "severe back pain" and "severe right sciatica" was "documented by a medical practitioner" before the accident as required under Section 18(2) of the Schedule.

19However, as the respondent correctly notes, this alone is not sufficient to remove the applicant from the minor injury category. Section 18(2) also requires that the applicant establish that the pre-existing sciatica prevents her from achieving maximal recovery within the minor injury limits. The evidence before me did not establish this.

(i) Contradictory forms filed by the applicant's treatment providers

20The physiotherapy treatment plans were submitted by the same treating physiotherapist who had completed the applicant's OCF-3. The OCF-3 dated November 30, 2016 (the same day that the applicant's MRI was done) indicates that the applicant had no pre-existing condition.

21In addition, the third treatment plan in dispute submitted by Dave Zelibka on May 10, 2018 indicates that the applicant has no pre-existing condition.

22Lastly, the EMG consultation of the applicant conducted by Dr. Keith Sequiera on May 29, 2018 makes no mention of a pre-existing condition and rather indicates the following diagnosis: "her presentation is likely related to a myofascial origin from the MVA in Nov of 2016. Continuing to work on a stretching and flexibility program and core strengthening routine would be beneficial to her."

23There is, therefore, no consistency in the records submitted by the applicant's treatment providers with respect to the existence of her pre-existing condition and its impact on her recovery.

(ii) Dr. Keith Sequiera's letter of July 9, 2018 is not persuasive

24After Dr. Sequiera made the above EMG diagnosis, he issued a letter on July 9, 2018 to the applicant's law firm. In that letter, he indicated that in his opinion, the "severe back pain" noted in her family doctor's note, and the "degenerative changes" noted in her MRI "constituted compelling evidence of a pre-existing condition that prevents her from receiving maximum recovery from soft tissue minor injury in this accident."

25The letter is barely a page long. It does not contain any detail as to how the final conclusion was arrived at. It does not mention pre-existing sciatica and does not explain how that condition would impact her recovery trajectory within the minor injury limits.

26This letter is further put into question because only a few months prior, Dr. Sequiera had diagnosed the applicant with injuries of a myofascial origin and had recommended that she continue with strengthening and stretching routines. This diagnosis is not consistent with a pre-existing condition that prevents maximal recovery.

27For these reasons, the letter of Dr. Sequiera dated July 9, 2018 does not persuade me on a balance of probabilities that the applicant's pre-existing condition prevents her from achieving maximal recovery within the minor injury limits.

(iii) Other causes identified for ongoing leg pain

28The physiotherapy treatment plans in dispute indicate that the applicant's leg pain is reproduced by "seated SLR and slump tests." The second physiotherapy treatment plan dated February 1, 2018 indicates that the applicant has been performing full work days and experiences increased leg pain through the work day. The pain is better in the mornings and worse on heavier and busier days. She manages her symptoms at home with heat and stretching.

29The treatment plans themselves attribute her leg pain to other aggravating factors such as her work. She manages that pain using certain modalities. The plans do not refer to a pre-existing sciatica or how that type of condition affects her ongoing symptoms and response to treatment. They do not explain what additional benefits the proposed treatment would provide in terms of dealing with the impact of the pre-existing condition.

30As an example, the first treatment plan states: "given her history of back pain and treatment for same in the year prior, as well as imaging reports suggestive of degenerative changes, she may require treatment beyond the funding limits of the MIG". There is no conclusive language and no rebuttal to the respondent's assessors who examined the applicant and opined that additional treatment as proposed would not result in maximal recovery at this stage given her condition.

31Neither the treatment plans in dispute nor the opinion of Dr. Sequiera persuade me that the applicant's pre-existing condition prevents her from achieving maximal recovery within the minor injury limits. She cannot therefore avail herself of the exception under Section 18(2) of the Schedule.

32The applicant's injuries from the accident are minor and she does not meet either the chronic pain or the pre-existing condition exception to this categorization.

B. The treatment plans at issue are not payable

33Since I have found that the applicant's injuries are minor, I do not need to engage in the exercise of determining whether the treatment plans at issue are reasonable and necessary. They were properly denied as the applicant has exhausted her minor injury limits.

C. Interest is not payable

34Since no benefits are payable to the applicant, interest is not payable.

D. No basis for a special award

35Pursuant to Section 10 of Regulation 664 of the Insurance Act, if the Tribunal finds that the respondent has unreasonably withheld or delayed payments, then the Tribunal may, in addition to awarding the benefits and interest payable under the Schedule, award a lump sum of up to 50% of the amount to which the applicant is entitled to at the time of the award, together with interest on all amounts then owing (including unpaid interest), at 2% per month, compounded monthly, from the time the benefits first became payable under the Schedule.

36Since I have found that the respondent was correct in denying the requested benefits to the applicant, I do not find anything unreasonable about the respondent's actions in withholding or denying the benefits to the applicant.

37Therefore, an award under Section 10 of Regulation 664 is not payable in this case.

Footnotes

1. 1Erco Industries Ltd. v. Allendale Mutual Insurance Co. 1987 CanLII 4296 (ON CA), [1988] O.J. No. 2 (Ont. C.A.).