L.H. v. Wawanesa Mutual Insurance Company, 2019 CanLII 22210

Date: 2019-02-07

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.H.

Appellant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

PANEL:

Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant:

Victoria Gorbenko

For the Respondent:

Michael Unea.

HEARD In Writing on:

February 4, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, L.H., was involved in a motor vehicle accident (“the accident”) on January 14, 2014 and sought accident benefits (“benefits”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2L.H. appealed to the Licence Appeal Tribunal (the “Tribunal”) when his claim for medical benefits was denied by the respondent, Wawanesa Mutual Insurance Company (“Wawanesa”).

3Wawanesa contends that L.H.’s accident-caused injuries fall within the definition of “minor injury” prescribed by s.3(1) of the Schedule, and are thus subject to the $3,500 cap on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule.

4If Wawanesa is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as no further medical benefits will be payable.

5L.H.’s appeal does not include claims for specific medical or rehabilitation benefits, or indeed for any benefits. The parties consented to a hearing on the sole issue of whether or not L.H.’s injuries fall within the MIG. Wawanesa raised no concerns with respect to the absence of specific medical or rehabilitation benefit claims in L.H.’s appeal.

6Despite the foregoing, the parties’ evidence indicates that Wawanesa denied four claims by L.H. for medical and rehabilitation benefits, in whole or in part, because it determined that all of his injuries fit the prescribed definition of “minor injury”.

7On August 23, 2018, the Tribunal ordered L.H.’s appeal to be heard in writing, and set the hearing date for November 5, 2018.

8On January 18, 2019, Wawanesa filed a motion to strike L.H.’s Reply submission, or in the alternative to allow it to file a sur-reply thereto. Wawanesa filed its submissions setting out the grounds for its motion along with its Notice of Motion, as required.

9On January 22, 2019, the Tribunal ordered a hearing on Wawanesa’s motion to be conducted on February 4, 2019.

MOTION ISSUE

10Should L.H.’s Reply submission be struck in whole or in part because L.H. introduced evidence and legal arguments not previously raised in submissions or during the case conference?

SUBSTANTIVE ISSUE

11Did L.H. sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

FINDINGS

12L.H.’s Reply submissions are admissible in their entirety. Wawanesa’s motion is dismissed.

13I find that L.H.’s injuries fall within the MIG.

REASONS: MOTION

“Case Splitting”

14There is a legal rule against any attempt by a party to add further evidence or argument after the other party’s defence is complete, often called “case splitting”. A party may not offer new evidence outside of or beyond what it has already raised in its submissions. This rule reflects the concerns of unfair surprise, prejudice and confusion expressed by the Courts in establishing well-settled law against “case splitting”.²

15The applicant must produce and enter in his own initial submissions case all the clearly relevant evidence it has, or that it intends to rely upon, to establish his case with respect to all the issues raised in his appeal. The respondent is entitled to have the applicant’s full case from the outset, so that it knows from the outset what it must address in response.³

16An applicant may only include new evidence in its Reply if it is necessary to rebut some new evidence or defence which the applicant has had no opportunity to deal with and which it could not reasonably have anticipated. Rebuttal is not permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the applicant's case that could have been brought before the defence was made. It will be permitted only when it is necessary to ensure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.⁴

Wawanesa’s Motion Argument

17Wawanesa asserts that L.H. has split his case by adding the following new evidence in his Reply submission:

1. At paragraph 2, L.H. introduces a questionnaire by Dr. Aaron Low, his family physician, speaking to the application of the MIG⁵ to his injuries. This document was not provided to Wawanesa when it was preparing its defence.
2. At paragraph 3 L.H. enclosed a new document, namely medical records from Scarborough Medical Centre. L.H. did not speak to this document in his initial submissions although it was available to him. Wawanesa made no mention of this document in its responding submissions. L.H. had full opportunity to address this document in his original submissions but chose not to do so.

18Wawanesa has moved to strike L.H.’s entire Reply from consideration. However, it has also suggested two alternative remedies:

1. Strike the offending paragraphs 2 and 3.
2. Allow the Reply submission, but permit it to submit a sur-reply in response to the new evidence.

FINDINGS: MOTION

19Dr. Low’s questionnaire was referenced at paragraph 7 of L.H.’s initial submission, dated September 24, 2018. The document was included at Tab 11 of his submissions. Wawanesa addresses the document at paragraph 9-10 of its Response.

20Wawanesa’s motion to strike paragraph 2 of L.H.’s Reply is denied because it is factually wrong. Dr. Low’s questionnaire may be considered in deciding the appeal, and Wawanesa has no right to a sur-reply.

21Wawanesa’s motion to strike paragraph 3 of L.H.’s Reply fails to note that the hospital records were entered expressly to rebut an assertion in its Response (at paragraph 14). Wawanesa’s Response states that L.H.’s OHIP summary suggests that, besides his attendance at a hospital on December 30, 2017, L.H. had not attended anywhere at any time for accident-related issues.

22I find that paragraph 3 of L.H.’s Reply submission may be allowed into evidence. L.H. expressly and clearly argued in its Reply that it entered paragraph 3 as a rebuttal to an assertion that Wawanesa was making for the first time about his seeking treatment. Wawanesa does not address this argument in its Motion; accordingly I have no basis on which to decide that L.H.’s evidence fails to meet the criteria for permissible rebuttal set out by Krause.

23I will allow paragraph 3 into evidence. Wawanesa’s Motion provides me with no reason to believe that a sur-reply to paragraph 3 is required to ensure fairness in this matter.

REASONS: MINOR INJURY

24Section 3(1) of the Schedule defines a “minor injury” 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

25Both parties acknowledge that the onus is on the applicant to show that his injuries fall outside of the MIG.

26L.H. claims that he sustained a psychological injury as a result of the accident that place his claims outside of the MIG. This is the only reason he advances for his claim to be outside of the MIG.

Does the applicant have psychological injuries arising from the accident?

27Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

28I find that L.H. does not have a psychological injury that would take him out of the MIG.

29To support his claim, L.H. submits:

i. a diagnosis by Dr. Aaron Low, his family doctor, of depression and anxiety, in May of 2018; and, ii. a psychological assessment report by Dr. Divna Peric-Todorovic which includes a diagnosis of adjustment disorder, mixed anxiety and depressive disorder, and a single (isolated) phobia – driver anxiety.

30To rebut L.H.’s claim, Wawanesa relies on a psychological examination report by Dr. Tatiana Dumitrascu dated April 18, 2018 in which:

i. No objective evidence for a psychological diagnosis was found. ii. L.H.’s results on the ATR⁶ validity scale were significantly elevated, indicating a tendency to over-endorse emotional symptoms. iii. L.H.’s results on the SIMS⁷ measure were significantly elevated above a cut-off score for detecting suspected malingering and/or symptom magnification. iv. There was a significant discrepancy between psychometric test results and clinical interview responses. The report finds that L.H.’s self-reporting is unreliable. v. Dr. Dumitrascu determined that L.H. does not require psychological treatment.

31L.H. argues that Dr. Dumitrascu’s report should be given less weight because her clinical interview lacked “compassion” and consisted of “leading” questions with “yes or no answers”. L.H. writes that he was given no opportunity to explain his findings.

32Wawanesa argues that Dr. Peric-Todorovic’s report should be given less weight because it was based very heavily on L.H.’s subjective self-reporting: the validity testing by Dr. Dumitrascu indicates that this self-reporting is unreliable, and that the diagnosis he obtained is therefore unpersuasive.

33I find that, on a balance of probabilities, L.H. does not suffer from psychological injury that would remove him from the MIG. My reason for this finding is that I prefer the evidence of Dr. Dumitrascu, and this is because:

i. Her examination included all of the elements of Dr. Pedric-Todorovic’s examination, but went further to conduct validity testing, which I find persuasive. ii. Dr. Pedric-Todorovic’s diagnostic evidence is less persuasive because validity testing by Dr. Dumitrascu revealed reasons to believe that the self-report based testing (e.g. BAI, BPI, etc.) relied on by Dr. Pedric-Todorovic likely was affected by a tendency to magnify cognitive and emotional symptoms, while results on the Trauma Symptom Inventory 2-A are considered invalid – making clinical interpretation of test data on trauma impossible. iii. There is no evidence of L.H. actually seeking or being referred for psychological treatment and no evidence of ongoing psychological complaints in L.H.’s medical records. iv. The diagnosis made by Dr. Low is outweighed by the findings of Dr. Dumitrascu, as his diagnoses are unexplained – it is unclear how he came to his diagnostic conclusion with respect to psychological injury. There is no indication in the evidence that he acted on his diagnosis.

34Dr. Dumitrascu’s finding that L.H. does not require psychological treatment leads me to conclude that any psychological problems that he is encountering cannot be classified as a “predominant” injury as required by s.3(1) of the Schedule.

35L.H.’s injuries are predominantly minor as defined by the Schedule and his claims for medical and rehabilitation benefits are subject to the cap imposed by the Schedule.

CONCLUSIONS

36Wawanesa’s motion to strike L.H.’s Reply submission is dismissed.

37L.H. has failed to prove that his injuries are not minor as defined by the Schedule, accordingly, his entitlement to medical and rehabilitation benefits is subject to the prescribed cap of $3,500.00

Date of Issue: February 7, 2019

___________________________

Christopher A. Ferguson,

Adjudicator

Footnotes

1. 1O.Reg. 34/10.
2. 2The leading case is Krause v. The Queen, 1986 CanLII 39 (SCC), [1986] 2 SCR 466, SCJ No.65, pp.473-474, per McIntyre, J., (“Krause”) cited by Wawanesa
3. 3ibid
4. 4ibid
5. 5i.e. the Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
6. 6“ATR” stands for “Atypical Response”
7. 7“SIMS” stands for Structured Inventory of Malingered Symptomology