A.S. v. Royal Sun Alliance Insurance Company, 2020 CanLII 37662

Licence Appeal Tribunal

Citation: A.S. vs. Royal Sun Alliance Insurance Company, 2020 ONLAT 19-001367/AABS

Released Date: 05/08/2020

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

Royal Sun Alliance Insurance Company Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Godfrey Bakeerathan

Counsel for the Respondent: Rory E. Wasserman

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on February 5, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a driver in a vehicle that was rear-ended by another vehicle. As a result of the accident, the applicant sustained injuries to his back, neck, shoulders and right knee, along with anxiety and depression.

3The applicant applied for medical benefits that were denied by the respondent because he was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

4At the case conference, an in-person hearing was scheduled. However, the hearing’s format was later changed, on the parties’ consent, to a hearing in writing.

ISSUES TO BE DECIDED

5The following are the issues to be decided:

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

ii. Is the applicant entitled to an income replacement benefit in the amount of $141.01 per week for the period from March 19, 2018 to date and ongoing?

If the answer to issue (i) is no, then:

iii. Is the applicant entitled to a medical benefit in the amount of $3,053.40 for chiropractic treatment recommended by Gibson Wellness Centre in a treatment plan submitted on March 24, 2017 and denied by the respondent on April 4, 2017?

iv. Is the applicant entitled to a medical benefit in the amount of $2,765.05 for chiropractic treatment recommended by Gibson Wellness Centre in a treatment plan submitted on April 21, 2017 and denied by the respondent on April 27, 2017?

v. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 recommended by Gibson Wellness Centre in a treatment plan submitted on May 9, 2017 and denied by the respondent on May 12, 2017?

vi. Is the applicant entitled to a medical benefit in the amount of $3,826.70 for chiropractic treatment recommended by Gibson Wellness Centre in a treatment plan submitted on June 30, 2017 and denied by the respondent on July 6, 2017?

vii. Is the applicant entitled to the cost of an assessment in the amount of $1,742.81 for an in-home assessment recommended by Functionability Rehabilitation Services in a treatment plan submitted on March 24, 2017 and denied by the respondent on April 4, 2017?

viii. Is the applicant entitled to a medical benefit in the amount of $5,204.15, including services for occupational therapy treatment, travel time, mileage and document preparation recommended by Functionability Rehabilitation Services in a treatment plan submitted on June 19, 2017 and denied by the respondent on June 25, 2017?

ix. Is the applicant entitled to an income replacement benefit in the amount of $141.01 per week for the period from March 19, 2018 to date and ongoing?

x. Is the applicant entitled to interest on any overdue payment of benefits?

xi. Is the applicant entitled to receive an award for unreasonably withheld or delayed payments pursuant to section 10 of Reg. 664, R.R.O. 1990?

RESULT

6Based on the totality of the evidence before me, I find:

i. the applicant sustained predominately minor injuries as defined in the Schedule and, thus, he is subject to treatment within the MIG;

ii. as a result of having found the applicant’s injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the remaining treatment plans or the cost of examinations;

iii. the applicant is not entitled to an income replacement benefit; and

iv. as there are no outstanding benefits, the applicant is not entitled to interest or an award.

ANALYSIS

Applicability of the Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

8The applicant bears the onus of establishing, on a balance of probabilities, his entitlement to coverage beyond the $3,500 cap for minor injuries.²

9The applicant’s Disability Certificate (OCF-3)³ dated February 21, 2017 completed by Jeff Weininger, chiropractor, notes the applicant’s injuries as follows:

• a sprain and strain of unspecified parts of the knee,

• rotator cuff syndrome and injury of the muscles and tendons at the rotator cuff of the shoulder,

• cervicalgia,

• whiplash associated disorder with complaints of neck pain with neurological signs,

• lumbago with sciatica; and

• nonorganic sleep disorders and other anxiety disorder.

10The applicant’s family doctor’s clinical notes and records from February 22, 2017 and March 30, 2017 note the applicant’s sensation of the right and left lower extremities was normal, his neck had good range of motion and the cervical spine was non-tender on palpitation. The Spurling test was negative and there was no tenderness over the lumbar vertebra. The doctor diagnosed the applicant with potential whiplash.⁴

11The respondent submits that the applicant was assessed through an insurer examination (“IE”) by Dr. Harmantas on June 8, 2017 and he was diagnosed with soft tissue injuries to the cervical spine, whiplash associated disorder I/II, and soft tissue injuries to his left shoulder and lumbar spine. Dr. Harmantas concluded that the applicant’s injuries fell under the definition of the MIG.⁵

12I find the injuries listed on the OCF-3 and those from the clinical notes and records of the family doctor to be within the definition of minor injury. I place no weight on the anxiety and neurological symptoms referred to in the OCF-3 as it would be beyond the scope of practice for a chiropractor to opine on psychological or neurological impairments of the applicant.

13The applicant submits he should be outside the definition of the MIG as a result of a left and right knee medial meniscal tear, radiculopathy to the cervical region, multilevel degenerative disc disease, osteoarthritis in the left knee, chronic pain, chronic headaches and psychological and psychosocial impairments.

14I have not been directed to any evidence of the applicant having radiculopathy. As a result, I am not persuaded on a balance of probabilities that the applicant has radiculopathy and am unable to determine whether that may take the applicant out of the MIG.

15I will in turn discuss the applicant’s psychological and chronic pain impairments and whether they may be sufficient to remove him from the MIG. I will first turn to discuss whether the applicant’s torn medial meniscus from his MRI on March 2, 2019 to his knees and his degenerative disc disease was in fact caused by the accident.

Causation

Knee Pain

16Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the applicant’s torn medial meniscus for the following reasons.

17The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.⁶ The applicant must show that he would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause.⁷

18The applicant does not provide any submissions on the issue raised by the respondent that but for the accident the applicant would not have developed a tear or arthritis to his left knee.

19The respondent submits that the applicant’s family doctor’s clinical notes and records did not indicate that he injured his left knee during the accident. Dr. El-Zaharna’s clinical notes and records show that the applicant was assessed and his lower extremities were found to be unremarkable.⁸

20During the IE assessment with Dr. Harmantas on June 8, 2017, the applicant did not mention any knee injury or knee related symptoms. Dr. Harmantas conducted a physical examination and the applicant’s lower limbs were found to be unremarkable.⁹ On the second examination with Dr. Harmantas on January 4, 2018 the applicant reported left knee pain as his primary complaint and claims to have hit it during the accident. Dr. Harmantas noted that the left knee pain was not reported by the applicant during his previous assessment on June 8, 2017.¹⁰

21The respondent further submits that it was not until seven months after the accident when the applicant mentioned left knee pain to his family doctor on September 20, 2017. Dr. El-Zaharna notes that the applicant had left knee pain “for 3 weeks”, the pain is “new onset” with “no history of trauma.”¹¹

22With respect to the applicant’s submission that his medial meniscus tears in both knees are as a result of the accident, the respondent submits that the applicant first mentions right knee pain to his family doctor on August 2, 2018 which is one and a half years post accident. The clinical notes and records of Dr. El-Zaharna from August 2, 2018 note that the applicant has had right knee pain “for 2 months” with no history of trauma.¹²

23As a result of the above, I find that the evidence does not establish on a balance of probabilities that that applicant would not have suffered the knee injuries “but for” the accident.

Degenerative Disc Disease

24The applicant submits his multilevel degenerative disc disease is as a result of the accident. He refers to a report dated August 30, 2018 that notes the applicant to have multilevel degenerative disc disease of the cervical spine.¹³

25However, this report was from a year and eight months after the accident. Additionally, it does not provide any insight into whether the accident was the cause of the degenerative disc disease or whether it was as a result of a natural progression due to age.

26I am also not directed to any evidence to show that the applicant sustained these injuries as a result of the accident or that his pre-existing condition was exacerbated by the accident.

27According to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”¹⁴ I am not presented with or directed to any evidence that the pre-existing injuries of the applicant were necessarily caused by or worsened by the accident. With the onus being on the applicant, he has not satisfied me on a balance of probabilities.

28As a result of the above, it is my finding that the evidence does not establish on a balance of probabilities that that applicant would not have suffered the injuries “but for” the accident.

29I will now turn to discuss whether the applicant’s psychological impairments or his chronic pain conditions are sufficient to be excluded from the MIG definition.

Does the applicant suffer from a psychological impairment that would remove him from the definition of the MIG?

30I find that the applicant has not proven on a balance of probabilities that he has a psychological impairment that would remove him from the MIG for the following reasons.

31The applicant relies upon his self reports from the In-Home Functional Assessment Report dated May 22, 2018 where he complained of psychological symptoms of depression, anxiety, severe sleep apnea and memory loss.¹⁵ However, I place less weight on the in-home functional assessment opining on psychological symptoms conducted by an occupational therapist and not a psychologist. Furthermore, I place less weight on the report as these symptoms are largely based on the self-reports of the applicant and not as a result of any psychological tests.

32Further, the applicant refers to his family doctor’s clinical notes and records and submits that “one can only equate that the physical and psychological complaints of the Applicant are as a direct consequence of the index accident.”¹⁶ Other than the submission, I am not directed to any evidence of the family doctor or any other treating practitioner who the applicant visited with who noted any psychological complaints or symptoms the applicant may have been suffering from. Submissions alone are not evidence and I have not been persuaded on a balance of probabilities that the applicant has psychological impairments that would remove him from the MIG.

33The respondent submits that the applicant was assessed by Dr. Campbell for a psychological IE. The psychometric testing during this assessment revealed a score that far exceeded the maximum cut-off for suspected malingering, suggesting a high likelihood of potential feigning or symptom exaggeration. Dr. Campbell further opined that there was no objective and reliable evidence of a diagnosable psychological condition or impairment and no need for mental health services.¹⁷

34As a result of the above, I find on a balance of probabilities that the applicant does not have a psychological impairment that would remove him from the definition of the MIG.

35I will now turn to discuss whether the applicant has chronic pain that would remove him from the definition of the MIG.

Does the applicant have chronic pain that would remove him from the definition of the MIG?

36I find that the applicant does not have chronic pain syndrome or chronic pain that would remove him from the MIG for the following reasons.

37The applicant submits he has chronic injuries to his neck and that he suffers from chronic pain. However, he has not directed me to any evidence of his injuries being chronic in nature.

38The respondent submits that the applicant has the onus to establish that his chronic pain is not a sequelae of his soft tissue injuries and further submits that the applicant’s family doctor only noted chronic pain in relation to his left and right knee tear over a year after the accident. The respondent further submits his knee injuries were not as a result of the accident and his chronic neck pain was opined to be related to facet joint arthritis and not as a result of accident related injuries.¹⁸

39in my view, one notation of chronic pain in the clinical notes and records of the applicant’s family doctor is not sufficient to establish that the applicant suffers from chronic pain. There was no diagnosis or any clinical testing or analysis to state that the applicant suffered from chronic pain or has chronic pain syndrome. With the onus being on the applicant to prove on a balance of probabilities, I have not been persuaded that he suffers from chronic pain that would remove him from the definition of the MIG.

40Despite having injuries that are within the definition of the MIG, the applicant can still be outside of the MIG based on pre-existing injuries. I will turn to discuss that next.

Requirements to be removed from the MIG

41Even if the applicant’s injuries fall within the definition of minor injury, the applicant can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:

a) have a pre-existing medical condition;

b) the pre-existing medical condition was documented by a health practitioner before the accident; and

c) the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

42I find that the applicant has not satisfied his onus. He has not provided any submissions or evidence of pre-existing conditions that satisfy all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG for the following reasons.

43The applicant submits he had pre-existing injuries, however I was not directed to any evidence of such. Even if the applicant provided evidence of injuries prior to the accident, that alone is not sufficient. There must be compelling evidence provided by the applicant’s medical practitioner that the pre-existing injury will prevent the applicant from achieving maximal recovery from the minor injury if the person is subjected to the monetary limits of the MIG.

44The applicant has not directed me to any evidence that would satisfy the requirements of s.18(2) and as a result, I find that the applicant does not have a pre-existing injury that would remove him from the MIG in accordance with the Schedule.

45As a result of finding that the applicant has injuries that are within the definition of the MIG and the MIG limits having been exhausted, there is no need for me to conduct an analysis of whether the treatment plans and the cost of examinations are reasonable and necessary.

46I will now turn to discuss whether the applicant is entitled to an income replacement benefit.

Is the applicant entitled to an income replacement benefit in the amount of $141.01 per week for the period from March 19, 2018 to date and ongoing?

47I find that the applicant is not entitled to an income replacement benefit for the following reasons.

48The test to be entitled to an income replacement benefit is whether the applicant suffers a substantial inability to perform the essential tasks of his employment within 104 weeks of the accident.¹⁹

49The applicant submits he is was a self-employed taxi driver and this position required him to operate and maintain a vehicle to transport passengers from one location to another.

50The applicant relies upon the Disability Certificate (OCF-3) in support of his position that he is substantially unable to perform the essential tasks of his employment and that he is unable to return to work on modified hours and/or duties.²⁰

51The remainder of the applicant’s submissions go into detail in support of the applicant’s quantum claim. However, before the quantum can be determined the applicant must demonstrate on a balance of probabilities that he meets the substantial inability test as mentioned.

52Other than the OCF-3 Disability Certificate, the applicant does not provide any submissions or direct me to any evidence in support of the OCF-3 that the applicant has a substantial inability to perform the essential tasks of his employment. The OCF-3 on its own is not compelling evidence.

53Respondent submits the applicant obtained new employment as a taxi driver and he failed to notify the respondent of this change in employment or produce any records pertaining to this new employment or what amounts were earned. The respondent further submits it was not made aware of his new job until an IE was done in December 2017. Despite repeated requests for information in accordance with s.33 of the Schedule regarding records pertaining to his new employment, none have been forthcoming. As a result, the respondent terminated IRB payments effective March 8, 2018.

54The respondent further relies upon its IE assessments of the applicant in support of its position that the applicant does not have a substantial inability to perform his essential tasks as a taxi driver.²¹

55The IE reports find that the applicant was able to work as a taxi driver for 40-50 hours per week without limitation. The psychological IE assessment by Dr. Campbell dated September 12, 2018 opined that the applicant has not suffered a substantial inability to perform his employment tasks as a taxi driver from a psychological perspective.²²

56As a result of the above, I find that the applicant has not proven on a balance of probabilities that the applicant has a substantial inability to perform the essential tasks of his employment and he is therefore not entitled to an income replacement benefit.

ORDER

57As a result of the above and on a balance or probabilities, I find that:

i. the applicant sustained predominately minor injuries as defined in the Schedule and he is subject to treatment within the MIG;

ii. as a result of having found the applicant’s injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the remaining treatment plans or the cost of examination;

iii. The applicant is not entitled to an income replacement benefit; and

iv. As there are no outstanding benefits, the applicant is not entitled to interest or an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Respondent’s Written Submissions Part 1 at Tab 3.
4. 4Ibid at Tab 2.
5. 5Ibid at Tab 5.
6. 6Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”).
7. 7Ibid at para. 36.
8. 8Respondent’s Written Submissions at Tab 2, pages 9-10. Clinical Notes and Records dated February 22, 2017.
9. 9Ibid at Tab 5, page 7.
10. 10Ibid at Tab 20, page 9.
11. 11Respondent’s Written Submissions at Tab 2, page 7, Clinical Notes and Records dated September 20, 2017.
12. 12Ibid at Tab 2, Clinical Notes and Records dated August 2, 2018.
13. 13Applicant’s Written Submissions at Tab 8.
14. 14Sabadash at para. 39.
15. 15Written Submissions of the Applicant at Tab 6.
16. 16Written Submissions of the Applicant at para. 23.
17. 17Written Submissions of the Respondent at Tabs 10 and 11, Dr. Campbell IE Reports dated July 6, 2017 and September 12, 2018.
18. 18Written Submissions of the Respondent at Tab 24, Consultation Report of Dr. Lim dated May 10, 2019.
19. 19Section 5(1) of the Schedule
20. 20Applicant’s Written Submissions at Tab 7, OCF-3 Disability Certificate at page 3.
21. 21Respondent’s Written Submissions at Tabs 19, 20 and 31. Functional Abilities Evaluation, Musculoskeletal and Physical Demands IE Reports dated January 18, 2018.
22. 22Ibid at Tab 11, Psychological IE Report dated September 12, 2018.