Tribunal File Number: 18-011207/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:
E. M
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
PANEL:
Brian Norris, Adjudicator
APPEARANCES:
For the Applicant:
Claire Mazerolle, Paralegal
For the Respondent:
Derek Yap, Counsel
HEARD in writing on:
August 26, 2019
OVERVIEW
1The applicant was injured in an automobile accident on March 7, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent characterized the applicant’s injuries as predominantly minor injuries and subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit provided by section 18 of the Schedule. As a result, the respondent refused to pay for certain benefits. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
Is the applicant entitled to medical benefits recommended by Whitby Wellness Centre as follows:
a. $4,394.00 for a physiotherapy treatment plan dated July 4, 2017;
b. $3,562.32 for a physiotherapy treatment plan dated November 28, 2017;
c. $2,722.54 for a physiotherapy treatment plan dated June 8, 2018; and
d. $2,144.94 for a psychological assessment plan dated March 9, 2018?
Is the applicant entitled to interest on the overdue payment of benefits?
Is the respondent entitled to costs?
RESULT
3The applicant suffered predominantly minor injuries and is subject to the $3,500.00 funding limit.
4The applicant is not entitled to the disputed claims nor interest.
5The applicant must pay costs to the respondent in the amount of $200.00.
BACKGROUND
6The applicant was the driver of a vehicle which was struck by another vehicle on the front passenger side while in a parking lot. The applicant did not seek medical assistance on the day of the accident, despite paramedics attending at the scene. The following day, she visited Dr. T. Ganeshram, family physician, who examined her and found predominantly soft tissue injuries and prescribed over-the-counter pain medication and physiotherapy.
7The applicant engaged in treatment at [a health clinic] pursuant to the Minor Injury Guideline (“MIG”), which was funded by the respondent. The applicant claims injuries which she submits are not minor injuries and claims entitlement to benefits beyond the $3.500.00 funding limit provided by section 18.
THE MINOR INJURY GUIDELINE
8There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. Section 3 also notes that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9If the applicant’s injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
10The applicant submits the funding limit should not apply because she suffered injuries which she submits excludes her from the MIG and the $3,500.00 funding limit. The respondent disagrees and submits the applicant has failed to provide evidence that her injuries are not included in the MIG.
11For the following reasons, I find the applicant has suffered predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit.
Psychological Injuries
12Upon review of the submissions and medical evidence, I find the applicant does not suffer from any psychological injuries warranting treatment outside the MIG and the $3,500.00 funding limit.
13The applicant relies mostly on the psychological assessment report by N. Dent, psychological associate, dated July 3, 2018. The assessment by psychological associate Dent included a clinical interview and three psychometric tests. It found the applicant suffered from an adjustment disorder, with mixed anxiety and depressed mood, as well as specific phobia (passenger related). Dent’s findings are contradicted by the IE report of Dr. D. Saunders, psychologist, dated May 15, 2018. Dr. Saunders also conducted a clinical interview and psychometric tests, and found the applicant exhibited some degree of anxiety and stress, but felt it was mild-to-minimum and did not raise to the level warranting a diagnosis or treatment.
14I prefer the Saunders IE over the Dent report. The main reason is because, as part of the assessment, Dr. Saunders reviewed an extensive amount of the applicant’s medical record, which provides a clearer and more robust view of the applicant’s condition. Whereas Ms. Dent was not provided with nearly as many records, despite conducting the assessment after the IE occurred. The Dent report finds the applicant suffered from severe anxiety and passenger phobia as a result of the accident, however this is contradicted in the other records. The Saunders IE notes the applicant continues to drive and her entire family physician’s records note only one corroborating complaint of anxiety. The Dent report concludes treatment is required to assist with the gradual improvement of the applicant’s activities of daily living and work performance, yet, in the same report, the applicant confirms she returned to work and is independent with her activities of daily living.
15Dr. Ganeshram’s records are not indicative of a psychological injury. As noted above, the CNRs mention only one incident during which the applicant complained of, or exhibited, psychological symptoms. Dr. Ganeshram appeared unconcerned by this and made no recommendation for treatment, no referral for additional care or investigation, and made no indication any counselling was provided.
16Likewise, the CNRs from [a health clinic] are absent any symptoms of a psychological injury. There are no notes of the applicant being anxious as a result of traveling to the facility or any other reason, no notes indicating any depressed mood or symptoms of depression, and there is no evidence of withdrawal from social activities. The absence of any psychological symptoms in these CNRs is remarkable considering this treatment facility is the source author of the disputed psychological assessment plan.
Spondylolysis and ongoing pain complaints
17The applicant was diagnosed with degenerative spondylolysis on October 2, 2018, after an X- ray was conducted. She claims this is a stress fracture and is not included under a minor injury. The respondent submits there is no evidence showing the applicant suffered a fracture and considers spondylolysis to be a degenerative injury akin to arthritis.
18I agree with the respondent and find the applicant’s spondylolysis is a degenerative injury, which is not as a result of the accident, and does not remove her from the MIG and the $3,500.00 funding limit on treatment.
19I do not accept that spondylolysis is a stress fracture as a result of the accident. The applicant provides no evidence or additional information to support this conclusion. On the other hand, the respondent has provided information, albeit limited, describing spondylolysis as a wear and tear injury akin to arthritis.
20The evidence does not attribute spondylolysis to the accident. The x-ray and the report occurred on October 1 and 2, 2018, respectively, more than a year-and-a-half after the accident. The report does not connect the condition to any specific event. According to the CNRs, Dr. Ganeshram reviewed the x-ray and report with the applicant, and recommended stretching, exercise, using ice, and to avoid walking bare-foot. I acknowledge there is an unspecified note about physiotherapy and massage therapy, but this alone does not entitle the applicant to medical benefits beyond the $3,500.00 funding limit. Further, the records do not connect the condition to the accident, and Dr. Ganeshram’s main recommendation following the x-ray and report is for the applicant to lose weight. To me, this indicates the applicant’s spondylolysis is not as a result of the subject accident.
21Dr. Ganeshram’s diagnosis of the applicant’s injuries, of the lack thereof, is consistent with the IE report by Dr. R. Saplys, orthopaedic surgeon, dated October 11, 2017. Dr. Saplys found the applicant suffered from uncomplicated soft tissue injuries and only recommended home exercise. Neurological injuries were ruled out and, while the applicant’s pre-existing carpal tunnel syndrome was considered, it was found to have no impact on her recovery.
22The applicant’s ongoing back, left foot, and right shoulder pain are not injuries which remove her from the MIG and the $3,500.00 funding limit. The applicant highlights times where she complained of ongoing pain to Dr. Ganeshram and similar remarks can be found in the CNRs from her treatment facility. However, ongoing pain is sequalae of the soft-tissue injuries she suffered in the accident, and there is no evidence which shows the applicant is disabled by pain. She remains independent with self-care, has returned to work, and there is no evidence of a dependence on prescription medication.
23There is no evidence to support the applicant’s claim that, as a result of impairments from the accident, she no longer cuts and washes hair at her job as a hair stylist and, instead, is limited to completing mostly paperwork. The applicant provided no records or notes from her employer to support this claim. In the same vein, there is no evidence to support the applicant’s claim that she can no longer engage in the same workouts as she used to prior to the accident. In fact, this is in contradiction to Dr. Ganeshram’s recommendations to engage in stretching and increase exercise.
24Considering the evidence and submissions, I find it more probable the applicant suffered predominantly minor injuries as defined by the Schedule. As a result, she is subject to the $3,500.00 funding limit on treatment.
THE DISPUTED TREATMENT PLANS & INTEREST
25The applicant is not entitled to the disputed treatment plans because she is subject to the MIG and the plans propose treatment which is not included in the MIG.
26Pursuant to section 51, interest is only payable on overdue payments. Having found nothing payable, I conclude no payments went overdue and no interest is payable as a result.
COSTS
27The respondent submits the applicant has acted unreasonably, that the unreasonable behaviour is as a result of the actions of counsel for the applicant, and costs should be levied specifically against the applicant’s representative. The respondent requests costs in the amount of $1,000.00 for the transgressions. The applicant submits this request is unreasonable and without merit.
28For the following reasons, I find the applicant has acted unreasonably and, consequently, is ordered to pay costs in the amount of $200.00.
29Pursuant to rule 19.1 of the Common Rules of Practice and Procedure, October 2, 2017 (“the Rules”), costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 permits me the authority to deny or grant the request for costs or award a different amount. I will first discuss the behaviour which occurred during the proceeding, the amount of the cost award, and where I find my authority to make this order.
30The applicant’s submissions were filed late. The applicant admits the submissions were due June 10, 2019 but were not filed with the Tribunal until June 14, 2019. There was no reason for the delayed filing other than stating “human error happens”. As a result of the late filings, the applicant breached the terms of the Tribunal’s order dated April 1, 2019.
31The applicant’s written submissions added two issues to the issues in dispute which were not part of the application. The respondent addressed them in submissions and requested they be dismissed. The applicant provided no reason explaining why the issues were added. I omitted the two extra issues from this hearing because the applicant formally withdrew the issues in reply submissions.
32Medical records were omitted from the applicant’s submissions despite stating otherwise. The index of the applicant’s submissions note it includes “All Clinical Notes and Records of Dr. Tharini Ganeshram”. Yet, the page numbers of the records showed several pages were omitted. Further, the respondent provided records from Dr. Ganeshram with its submissions, which were not included with the applicant’s submissions.
33Most notably, the applicant’s representative certified she served the hearing submissions on counsel for the respondent when, in fact, she did not. The certificate of service filed with the Tribunal states the materials were sent via email on June 14, 2019. The applicant submits this was an error in that counsel for the respondent was accidentally omitted from the email to the Tribunal due to rushing to submit the materials, which were already late. This is an inexcusable mistake. Parties can use email delivery receipts and can print out emails with delivery time-stamps to certify delivery was successful. At the least, I would expect any representative or party to review the available information to ensure delivery occurred before formally certifying it took place. The respondent is entitled to a cost award due to this and the other behaviour noted above.
34As noted above, rule 19.5 authorizes me to deny or grant the request for costs or award a different amount. The respondent has made a request for costs in the amount of $1,000.00. I choose to award a different amount, $200.00.
35The amount of costs requested by the respondent are disproportional. The respondent submits additional hours of work was completed to address the incorrectly added issues as well as the late service of hearing materials. While I agree the respondent incurred some additional work as a result of the issues noted above, I find it failed to mitigate the issues by not cooperating with the representative for the applicant. For example, instead of filing a motion as the respondent did, counsel for the respondent could have advised the applicant of the missed deadline and collaborated on setting new dates for submissions. The respondent’s motion to omit submissions resulted in additional administrative time spent by the parties, and the Tribunal, which could have been avoided had counsel addressed the issues differently. Additionally, I note the respondent suffered little to no prejudice as a result of the applicant, or her representative’s, actions and was ultimately successful in defending the application.
36Despite the above factors which mitigate in favour of the applicant, I find the behaviour outlined is disrespectful of the Tribunal’s process, is unreasonable, and warrants a cost award. I conclude a cost award of $200.00 recognizes the applicant’s unreasonable behaviour and is considerable enough to discourage similar behaviour in future proceedings.
37The Tribunal previously addressed the issue of costs against a representative in S.L.L. and Certas1 (“SLL”). In it, the adjudicator found no authority to award costs personally against a representative. In this case, the respondent provided no caselaw or legislative authority to support a decision contrary to SLL. As a result, I am unable to justify a cost award against the applicant’s representative.
38Considering the behaviour of the applicant, I order her to pay costs to the respondent in the amount of $200.00.
CONCLUSION
39I find that the applicant sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limit. The applicant is not entitled to the disputed benefits, nor interest.
40The applicant is ordered to pay costs to the respondent in the amount of $200.00.
Released: February 14, 2020
Brian Norris
Adjudicator
Footnotes
- 16-000213 v Certas Home and Auto Insurance Company, 2017 CanLII 69275 (ON LAT)```