A.B. v. Intact Insurance Company, 2020 CanLII 51283

A.B. v Intact Insurance Company

Citation: A.B. v Intact Insurance Company, 2020 ONLAT 19-003417/AABS Tribunal File Number: 19-003417/AABS Released: July 23, 2020

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits

Between:

A.B. Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

Representative for the Applicant: Rajwant Bamel, Counsel

Representative for the Respondent: O. Itse Ezomo, Counsel

Held by In-Person/Teleconference Hearing: March 2 + 3 / April 17, 2020

OVERVIEW

1The applicant was injured in a motor vehicle accident on September 22, 2017. To assist in his recovery, he applied for medical benefits payable under the Statutory Accident Benefits Schedule (the "Schedule").¹ The respondent determined that his injuries fell within the Minor Injury Guideline (the "MIG"), so it declined to pay for some of this treatment. The applicant applied to the Tribunal for resolution of this dispute.

2The applicant is also seeking an award and costs.

3For the reasons to follow, I find the applicant is not entitled to these disputed benefits. Further, since there are no benefits owing to the applicant, he is not entitled to an award. Finally, this is not an appropriate case to grant costs.

ANALYSIS

4Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.

5The medical benefits at issue are as follows:

1. Psychological assessment at the cost of $2,000.00 (in a treatment plan signed on September 28, 2017);

2. Physiotherapy services in the amount of $3,234.69 (in a plan signed on September 25, 2017) and $2,362.22 (in a plan submitted to the respondent on January 15, 2018); and,

3. Assessment of attendant care needs at a cost of $1,230.92 (in a treatment plan signed on September 28, 2017).

6In the present case, the applicant also has the onus of demonstrating that his injuries do not fall within the MIG. That is, if an insured person has only suffered a "minor injury" as a result of an accident, s. 18(1) of the Schedule and the MIG place a $3,500.00 limit on his or her treatment.

7According to the respondent's submissions, this limit has been exhausted.

8The main means of removal from the MIG is when an insured person can demonstrate that she or he has sustained an impairment that is not "predominantly a minor injury". A "minor injury" is defined in the Schedule at s. 3(1) as "a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury". This definition does not include psychological impairments.

9Section 18(2) then states that insured persons may also be removed from this limit if they establish (on a balance of probabilities) that they had "a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent… achieving maximal recovery from the minor injury if the insured person is subject to the [MIG] limit".

Parties' Positions

10The applicant submitted that his accident-related injuries are not predominately "minor" in nature, because he suffers from psychological impairments (namely, cognitive issues, sleep issues, passenger anxiety, and general anxiety) and chronic pain (as well as persistent headaches). In support of these claims, he argued that the evidence from his psychologist, Dr. Andrew Shaul, and his chiropractor, Dr. Domenic Minnella, clearly establish the existence of these injuries. Further, he argued that the reports from the respondent's experts are faulty. For example, he claimed that the respondent's physician, Dr. Seung-Jun Lee, discounted his subjective experience of pain, all the while failing to mention the diagnoses reached by Dr. Minnella in his later addendum report. The applicant also raised concerns about how these assessments were arranged for the respondent.

11The respondent contended that there is simply insufficient evidence to support any of these alleged impairments. That is, beyond some insurance forms (namely, the treatment plans and a Disability Certificate), there are no clinical notes and records that establish the existence of these accident-related injuries.

Psychological Impairment

12I find the applicant has not provided sufficient evidence to support his claim that he has suffered from an accident-related, psychological impairment.

13The main piece of evidence put forward by the applicant in support of this alleged impairment is the treatment plan related to the disputed psychological assessment. Specifically, the plan includes a summary of a screening interview conducted with the applicant on October 5, 2017 (under the supervision of Dr. Shaul). During this interview, the applicant self-reported the following psychological and cognitive symptoms: sleep issues, mood changes, worry about the future, less socializing, trouble concentrating, and anxiety as both a driver and passenger.

14He also provided a Disability Certificate (dated September 28, 2017), though I place little weight on its psychological diagnoses because this record was not prepared by a mental health professional.

15Finally, his counsel noted during closing submissions that the airbags deployed during the accident, so it makes sense that his client would be both physically and emotionally impacted by the accident.

16Despite the symptoms reported during the screening interview, the applicant's post-accident life appears nearly identical to his pre-accident one, such that I do not find these concerns reach the level of a psychological impairment.

17The applicant's reported limitations to the respondent's psychological assessor, Dr. Louise Koepfler, were very minor in nature. Save for some additional fear when driving, the applicant "did not describe significant functional impairments" during this assessment in March 2018 (i.e., several months after his screening interview under Dr. Shaul). He also reported having good concentration, and—though he could find it hard to fall asleep—he did not require naps throughout the day, nor did he report having post-traumatic dreams.

18This assessor's psychometric testing painted a similar picture. Briefly, though he expressed concern "about the duration of his symptoms" as well as some moderate anxiety, his other results were generally mild (e.g., he "did not endorse low mood, anhedonia or loss of sense of humor").

19Finally, the applicant told the assessor that he does not take any medication for "pain, sleep, depression, anxiety or other health problems."

20Though the applicant has raised concerns about the reports from the respondent's experts, I do not find it necessary to address these allegations. Rather, the evidence I referenced from Dr. Koepfler's report was the self-reported symptomology of the applicant—not the conclusions she drew from this evidence.

21I would also note that his responses to Dr. Koepfler conform with those provided during his testimony. That is, while he noted some issues following the accident (e.g., he is anxious as a passenger when someone is driving "erratically"), his evidence to the Tribunal detailed a life similar to the one he had before the accident.

22Taken together, I am not satisfied that the applicant has established the existence of a psychological impairment.

Chronic Pain

23I further conclude that the applicant has not made out his claim of chronic pain.

24Chief among the applicant's evidence to support this claim is the report from Dr. Minnella (dated September 5, 2019), wherein he diagnosed the applicant with "chronic pain", as well as chronic sprain/strain in his cervical spine, thoracic spine, and both shoulders. Much of Dr. Minnella's analysis appears to rely on the observation that the applicant's pain has continued "beyond the normal 12-week period." In line with the argument made by applicant's counsel during the hearing, I interpret this phrase to mean that—since his pain has persisted beyond the expected recovery period—the applicant must be suffering from chronic pain.

25Dr. Minnella also observed slight limitations in the range of motion for the applicant's shoulders and cervical spine.

26To further buttress this argument, the applicant cited the Tribunal's decision in 17-000835 v. Aviva General Insurance, wherein Adjudicator Ferguson preferred the expert evidence of the applicant, because the insurer's assessors did not specifically touch on this issue of chronic pain.² Therefore, since the applicant argued that Dr. Lee's report is faulty for numerous reasons (and because he, as a physician, cannot even diagnose chronic pain), Dr. Minnella's assessment should be treated as an "uncontested report".

27While I accept that the applicant experienced some discomfort as a result of the accident, I do not accept the diagnosis of "chronic pain", nor do I accept that the applicant suffers from Chronic Pain Syndrome. Instead, the applicant has been unable to demonstrate that his pain is not "clinically associated sequelae" to his otherwise minor injuries.

28First, similar to his alleged psychological impairment, the accident does not appear to have affected the applicant's ability to perform his daily activities.

29When asked during the hearing to describe how pain affects his day-to-day life, the applicant stated that he finds it difficult to sit for extended periods of time. The records before me also note that he has issues with lifting and bending.

30However, these limitations are not in line with the activities that the applicant completed after the accident. Most notably, the applicant was able to return to his full-time, co-op position after only a few days off—a role that mainly involved deskwork. He also was able to complete the university program he had started prior to the accident. According to his testimony, his academic performance was not affected by the accident.

31The applicant argued that his decision to continue with these activities must be understood in light of the intense pressure he was experiencing at the time. That is, he was nearing the end of his degree, so he did not want to jeopardize his co-op placement. As such, though his family doctor recommended against it, he still returned to work shortly following the accident.

32I accept that the unique circumstances of this moment meant the applicant felt compelled to continue working. I also accept the applicant's testimony that his sedentary co-op position did not require him to do heavy, physical tasks like lifting. However, I still find it difficult to reconcile the applicant's self-reported limitations (namely, his inability to sit for long periods of time) with his successful completion of this co-op program and degree.

33The aforementioned Disability Certificate from September 2017 provides further evidence that the applicant's pre- and post-accident activity levels remained much the same. That is, even though this record was prepared less than a week after the accident, the applicant was already back at work.

34Further, the applicant's self-reported pain levels suggest that this pain has largely resolved. For instance, when asked to rate his pain by Dr. Minnella, the applicant provided a score of 3/10 for his shoulders, neck, and mid-back pain (with 10 being "worst pain imaginable"). Though it is noteworthy that there was still some level of pain in September 2019, such a low rating does not correspond with Dr. Minnella's finding that pain is affecting "all aspects of [the applicant's] activities of daily living." Instead, it appears to be lasting discomfort from his otherwise "minor" injuries.

35I would also note that, even when the applicant's pain ratings were much higher in the direct aftermath of the accident, he was still able to complete his tasks of daily living. That is, during his interview with Dr. Lee on November 18, 2017, the applicant rated his pain as between 7-8/10. Yet, he still reported being "independent with self-care activities", and, though he performed these tasks with pain, he participated in "household chores including cooking, doing dishes/laundry, and cleaning". This latter comment was confirmed during the applicant's testimony.

36Then, during testing with Dr. Koepfler, the applicant completed the Revised Oswestry Functional Assessment Questionnaire, which measures one's "self-perceived limitations due to pain." These results again evidence that this pain has little impact on his daily life, as he reported "no impairment in work, travel, reading, social and recreational activities, sex life or personal care".

37In sum, I am not satisfied that pain has had any significant effects on his functional capacity, and so I am not satisfied that the applicant has established the existence of accident-related, chronic pain. Rather, I find that these experiences of pain are "clinically associated sequalae" to his accident-related, minor injuries.

38I would also note that my reference to the reports of Drs. Lee and Koepfler do not touch on their conclusions. Rather, I have again focused on the applicant's self-reported symptoms. Therefore, I still find it unnecessary to comment on the issues that the applicant raised about this assessor and his report, including his reliance on the reasoning in Aviva. That is, while Adjudicator Ferguson may have placed more weight on the applicant's reports in Aviva—due, in part, to the lack of references to chronic pain in the respondent's assessments—I am not satisfied that there is sufficient corroborating evidence to support the diagnosis of "chronic pain" made by Dr. Minnella. As such, I do not then have to weigh this conclusion against the conclusions of the respondent's experts.

39Similarly, though he reported a significant headache to his physician the day after the accident, I am not satisfied that the applicant's experience of accident-related headaches meets the threshold for removal from the MIG, as, again, this pain does not appear to cause any functional limitations.

Other Accident-Related Injuries

40During his submissions, applicant's counsel raised several other accident-related injuries as a possible reason for removing his client from the MIG, i.e., "injury to his cervical spine, thoracic spine, lumbar spine, shoulders, wrist, [and] plantar fasciitis". Counsel stated that these injuries "do not fall under the definition of a minor injury".

41Though I accept that these conditions were recorded in the Disability Certificate and the report from Dr. Minnella described above, I do not agree with this interpretation of the Schedule. That is, the applicant has not provided me with any evidence or detailed submissions that explain why these injuries do not fall within the definition of a "minor injury". A plain reading of s. 3(1) strongly suggests that these injuries all fall within this definition, so I do not place any weight on this brief submission from applicant's counsel.

Pre-Existing Conditions

42As stated above, s. 18(2) of the Schedule states that an applicant may also be removed from MIG if a pre-accident medical condition will impede maximum recovery under the MIG.

43Though there are generic references to unspecified, pre-existing conditions in some of the treatment plans, the Disability Certificate (which was prepared shortly after the accident) indicated that the applicant did not have any pre-existing condition that affected his ability to perform tasks like caregiving and his education. The applicant also noted during the hearing that he had no "serious pre-existing conditions". Therefore, I do not find these unsupported allusions in the treatment plans to be sufficient evidence to meet the standard under s. 18(2).

44Taken together, the applicant has not demonstrated (on a balance of probabilities) that he suffers from an accident-related impairment that would remove him from the funding and treatment limits of the MIG. He has also failed to demonstrate the existence of a documented, pre-existing condition that would affect his recovery under the MIG. Since there is no amount remaining under the funding limit of the MIG, there is no need to determine whether the disputed medical benefits are reasonable and necessary.

AWARD AND COSTS

45Section 10 of Regulation 664 permits the Tribunal to "award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured" if the Tribunal "finds that an insurer has unreasonably withheld or delayed payments".

46Rule 19 of the Tribunal's Common Rules of Practice & Procedure (the "LAT Rules") then outlines the powers that the Tribunal has to order costs against a party. Briefly, Rule 19.1 states that costs may be awarded in cases where a party has "acted unreasonably, frivolously, vexatiously, or in bad faith".

47In support of his request for an award, the applicant argued that the respondent unreasonably held him to the MIG, and it also inappropriately accessed his social media accounts. Since there are no amounts owing to the applicant, there can be no withheld or delayed payments that could form the basis for an award. As such, I will not comment on these allegations.

48In regard to costs, the applicant then alleged that the respondent impeded his ability to serve a summons on the adjuster—obstructive behaviour that is all the more troubling considering the difficulties facing the legal community due to COVID-19. Additionally, the applicant argued that the respondent and the adjuster are both sophisticated actors within the legal system, so strict compliance with the rules of service was not necessary in this case. That is, it should have been sufficient for the applicant to e-mail and fax this document to respondent's counsel.

49This unreasonable behaviour caused the applicant to incur additional expenses, so he sought costs in the amount of $750.00.

50The respondent denied these claims by arguing that it treated the applicant with professionalism throughout this proceeding, and there is nothing unreasonable with expecting another party to comply with the LAT Rules. Further, if there were any delays in this proceeding, it was the applicant's fault by not taking the necessary steps to properly serve the adjuster in the first place. The respondent also noted that applicant's counsel attempted to send an e-mail to respondent's counsel during this period using an incorrect e-mail address.

51To explain my order, I must lay out a brief timeline of the events preceding and following the in-person portion of this hearing.

52On December 12, 2019, a letter was sent from applicant's counsel to the adjuster requesting her attendance at the in-person portion of the hearing. There was no summons attached to this letter.

53Then, on February 26, 2020, applicant's counsel sent respondent's counsel a copy of the summons meant for the adjuster. Later that day, respondent's counsel responded by asking whether service would be perfected in accordance with the LAT Rules.

54The adjuster did not attend the in-person portion of the hearing in early March 2020, so the Tribunal ordered a continuation of the hearing.

55In the lead up to this continuation, applicant's counsel sent several e-mails to respondent's counsel expressing concerns about how the pandemic was affecting his ability to serve the adjuster with a summons (i.e., in correspondence dated March 23 and April 6, 2020). When he did not receive a response, applicant's counsel requested an order for substitute service on April 6, 2020. The Tribunal granted this request in an order sent to the parties on April 9, 2020.

56Shortly before this order was sent out, respondent's counsel wrote applicant's counsel stating that he had "again failed to serve" the adjuster. However, the respondent would "not oppose the cross-examination, if [the adjuster] does make herself available."

57The adjuster testified at the continuation of the hearing via teleconference.

58In light of this series of events, I am satisfied that the respondent's behaviour does not reach the high threshold required for a costs order under Rule 19.1.

59First, there is nothing unreasonable about the respondent's request that the applicant comply with the LAT Rules. That is, even if I were to accept that the adjuster is well-versed in how the legal system functions, it does not remove the requirement of other parties to comply with the rules for serving a summons.

60Further, even though there was some delay in responding to the applicant's e-mail correspondence following the initial hearing, I do not find that the respondent's delay reaches the threshold needed to order costs under the LAT Rules. Not only was one of these e-mails sent to the wrong address, but this delay took place during the early days of the lockdown brought on by COVID-19. It would be improper to hold either party to a standard of perfection during the confusion brought on by this crisis, so I do not find costs to be appropriate in this case.

ORDER

61The applicant has not established that he should be removed from the MIG. As such, the treatment plans in dispute are not payable, and there is no basis for an award. Costs will not be granted in this case.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 22017 CanLII 59495 (ON LAT) ("Aviva").