Prince Nii Sowatei Tetteh v. BelairDirect Insurance Company, 2020 CanLII 51290

Citation: P.N.S.T. v. BelairDirect Insurance Company, 2020 ONLAT 19-006698

Released Date: 07/08/2020

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:

Prince Nii Sowatei Tetteh

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam

APPEARANCES:

For the Applicant: Jessie Vi Tran Paralegal

For the Respondent: Tom Yen Counsel

HEARD: By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant Prince Nii Sowatei Tetteh (“applicant”), was involved in an automobile accident on January 11, 2011 (“accident”) when he was 30 years old. Long after returning to work and many years later, the applicant sought benefits from the respondent BelairDirect Insurance Company (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”)² and, even if the MIG is found not applicable, the applicant is not entitled to the disputed treatment plans, cost of examinations and other amounts claimed because they are not reasonable and necessary. The applicant has applied to the Tribunal for dispute resolution.

PRELIMINARY ISSUE – APPLICANT’S REQUEST TO STRIKE SUBMISSIONS

3In his reply submissions the applicant submits that paragraphs 5, 20, 21, 22, 25 and 62 of the respondent’s submissions be struck since they contain “improper assertions which lack any probative value and appear to be solely aimed at immaterial and improper character assassination…(and) are inflammatory and vexatious”.

4I decline to strike these parts of the respondent’s submissions. The applicant could have brought a motion prior to making reply submissions to put forward this request but did not do so. To attempt to do so in reply, when the respondent has no opportunity to respond, is unfair.

ISSUES

5The Tribunal’s case conference Order made December 3, 2019 provided for a combination hearing consisting of a portion in writing with a half-day in-person hearing for the evidence of the applicant only scheduled for April 9, 2020. The Tribunal made an Order at the request of the applicant and on consent of the respondent which vacated the in-person portion of the hearing. As a result, this hearing is solely in writing.

6The issues to be decided in this hearing are:

a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

b. Is the applicant entitled to medical benefits as follows:

i. $950.00 for assistive devices recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on July 4, 2017, and denied on July 13, 2017?

ii. $445.00 for assistive devices recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on September 13, 2017, and denied on September 25, 2017?

iii. $1,250.00 for various therapies recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on July 12, 2017, and denied on July 21, 2017?

iv. $2,600.00 for various therapies recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on August 9, 2017, and denied on August 22, 2017?

v. $3,200.00 for various therapies recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on November 7, 2017, and denied on November 16, 2017?

c. Is the applicant entitled to the cost of examination as follows:

i. $2,200.00 for a social work assessment recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on October 24, 2017, and denied on November 2, 2017?

ii. $2,200.00 for an orthopaedic assessment recommended by the Pain Rehabilitation Clinic Inc. in a treatment plan (OCF-18) submitted on November 7, 2017, and denied on November 2, 2017?

d. Is the applicant entitled to other amounts as follows:

i. $87.19 for the balance of an invoice for a disability certificate in the amount of $200.00 submitted on June 9, 2017 which was partially approved for $112.81 on June 28, 2017?

ii. $100.25 for the balance of an invoice for a disability certificate in the amount of $200.00 submitted on August 9, 2017 which was partially approved for $100.25 on October 23, 2017?

iii. $200.00 for a disability certificate submitted on November 7, 2017 and denied on December 23, 2017?

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

RESULT

7The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to the treatment plans, cost of examinations and other amounts claimed as the applicant has failed to prove that they are reasonable and necessary for injuries directly attributable to the accident. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

LAW

The Minor Injury Guideline

8The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in section 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”. Under section 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

9To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

10The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.⁴

ANALYSIS

Are the applicant’s injuries predominantly minor, subject to treatment within the $3,500.00 limit in the MIG?

12I find that the applicant’s physical injuries are minor injuries. The applicant saw his family physician Dr. Gebremicael on January 20, 2011 who noted “involved in a car accident 2 weeks ago and ended in a ditch after hitting a car infornt(sic) of him braked suddenly, no loc, here today to check his physical health since he is feeling some discomfort on strenos(sic) activities”. On examination, Dr. Gebremicael found “no obvious lacerations…all joints had full rom, no weakness in any part of the body, no tender potints(sic) were identified…concussion, reassurance”. The next time the applicant saw Dr. Gebremicael was November 23, 2013 when he complained of foot pain and swelling which started “days ago”. The accident was not noted by Dr. Gebremicael on this visit. None of the applicant’s medical records after the accident establishes any physical injury resulting from the accident other than sprain and strain type physical injuries which fall within the definition of “minor injury”. However, the applicant argues that other conditions remove him from the MIG.

Does the applicant have psychological impairment and/or chronic pain as a result of the accident?

13I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment and/or chronic pain resulting from the accident justifying treatment beyond the MIG. According to the evidence before me, the applicant did not report to either of his family physicians any psychological issues or chronic pain resulting from the accident. No psychological or chronic pain referrals or treatments were made by either of the applicant’s family physicians. Although there is some reference to chronic low back pain in Dr. Thind’s July 14, 2016 record, there is insufficient medical evidence attributing this to the accident.

14To the contrary, during the 2017 assessment by WSIB’s Dr. Yee, the applicant self-reported psychological distress and neck, back, left elbow and right ankle pain, both of which the applicant attributed to a March 24, 2017 motor vehicle accident the applicant had at work while driving his company’s van (“the workplace mva”), and not the accident. The applicant told Dr. Yee about the accident which resulted in some back pain but reported he “…made a full recovery”.

15I prefer the applicant’s self-reporting to Dr. Yee in 2017 over his 2018 self-reporting to other assessors that he had made an incomplete recovery as it is closer in time to the accident and is corroborated by the records of his family physicians which do not contain any significant evidence of ongoing treatment resulting from the accident. The burden of bringing forward persuasive medical evidence of his alleged psychological impairment and chronic pain is on the applicant and he has not done so.

Medical Benefits: Are the treatment plans reasonable and necessary?

16I find that the applicant has not established that the treatment plans he claims are reasonable and necessary for injuries attributable to the accident as opposed to unrelated injuries that he suffered subsequent to the accident. Except for the initial visit to Dr. Gebremicael on January 20, 2011, there is no evidence that the applicant sought medical attention for any injuries resulting from the accident at any time within the five years following the accident. The next time the applicant saw Dr. Gebremicael after January 20, 2011 was on November 23, 2013 when he complained of foot pain and swelling which started “days ago” and the records of Dr. Gebremicael do not relate this to the accident.

17On November 11, 2015, the applicant was injured at work (“workplace accident”), was diagnosed with neck sprain and received WSIB for neck and back strain. As a result of the workplace mva on March 24, 2017, the applicant was taken to the hospital in an ambulance. He saw Dr. Moody on April 10, 2017, who found cervical, lumbar, ankle and left elbow strain. The applicant did not complain to Dr. Moody about the accident. On December 21, 2017, the applicant saw Dr. Thind who advised him to book another visit regarding “chronic pain post MVA”. Dr. Thind did not specify which motor vehicle accident. This evidence does not establish the “chronic pain post MVA” resulted from the accident and not the workplace mva.

18On May 23, 2018, the applicant saw Dr. Thind because he injured his shoulder at his gym (“gym accident”) while trying to overhead lift about 35 pounds. The accident was not mentioned in Dr. Thind’s records on this visit. Dr. Thind suspected a rotator cuff tear from the gym accident and recommended physiotherapy. On June 29, 2018, the applicant saw Dr. Thind for edema in lower extremities. No reference to injuries from the accident was made by Dr. Thind in his records from any of these visits.

19The delay of some six years before the applicant submitted the disputed treatment plans, coupled with the intervening injuries in those years from the workplace accident and the workplace mva make it unlikely that there is any causal connection between the accident and the need for treatment in 2017 in the absence of persuasive pre-2017 medical evidence.

20None of the pre-2017 medical records show that the applicant sought medical treatment for accident related injuries except for the initial visit to Dr. Gebremicael on January 20, 2011. On June 25, 2015 and July 3, 2015, the applicant saw his new family physician, Dr. Thind, for reflux and heartburn, and then on October 20, 2015 and October 29, 2015 for rhinorrhea. Dr. Thind did not make any reference to injuries from the accident in his records at any of these visits. On October 20, 2015, Dr. Thind wrote a note “To whom it may concern” certifying that the applicant was unable to work due to “illness/injury” until October 23, 2015 without specifying any medical detail of the illness or injury. This evidence does not establish the “illness/injury” resulted from the accident.

21In 2016, the applicant continued to seek medical treatment for non-accident related medical matters. The applicant saw Dr. Thind for a recent basketball injury to his right ankle on March 11, 2016 and April 19, 2016, for varicose veins in both legs and chronic lower back discomfort on July 14, 2016 and for hives on December 29, 2016. No reference to injuries from the accident was made by Dr. Thind in his records from any of these visits.

22In September, 2018, WSIB asked the applicant to attend an assessment with Dr. Yee and others at Sunnybrook’s Holland Orthopaedic and Arthritic Centre.

23In May 31, 2019, the applicant asked Dr. Thind for a note about when he can return to work. Dr. Thind declined to give him a note and suggested a note should come from Sunnybrook’s back/neck speciality program which has been following him.

24Although the applicant may have sustained some injuries in the accident, they are minor and there was a lack of reporting of substantial functional limitations to the applicant’s family physicians prior to 2017. That the applicant had returned to his former employment soon after the accident would tend to indicate the applicant had healed from his injuries sustained in the accident well before 2017. The medical records show that in 2017 the applicant was injured in the workplace mva and received some $29,000.00 worth of treatment between April 25, 2017 and November 5, 2019. The treatment sought in the five disputed treatment plans is therefore not reasonable and necessary because of the lack of causal connection between the accident, the workplace accident, the workplace mva and the proposed 2017 treatment in dispute.

25The applicant relies on medical records, reports and assessments in 2018, 2019 and 2020 to establish that the treatment plans submitted in 2017 are reasonable and necessary for injuries attributable to the accident. None of this evidence is persuasive because of the number of years between these records and the accident in 2011. Reliance is placed in many of these records on the applicant’s self-reporting many years later about the 2011 accident which reporting is at times inconsistent, making these records unreliable.

26I find that the applicant has not established that the disputed treatment plans are reasonable and necessary to treat injuries resulting from the accident and that the applicant is not entitled to the treatment plans in dispute. This includes the two assistive devices in dispute.

Cost of Examinations

27I find that the applicant is not entitled to $2,200.00 for a social work assessment or $2,200.00 for an orthopaedic assessment because the applicant has not established that either assessment is reasonable and necessary. Although the applicant may have sustained some injuries in the accident, they are minor, there was a lack of reporting of any complaints to either of his family physicians for a period of some five years subsequent to the accident and, when asked about them in 2017, the applicant told WSIB assessors that he had fully recovered. There are insufficient records from the applicant’s family physicians to warrant further social work or orthopaedic assessment and the applicant had already returned to his employment long before 2017.

Other Amounts: Payments for Disability Certificates

28I find that the applicant is not entitled to $87.19 for the balance of an invoice for a disability certificate in the amount of $200.00 submitted on June 9, 2017, $100.25 for the balance of an invoice for a disability certificate in the amount of $200.00 submitted on June 9, 2017 and $200.00 for a disability certificate submitted on November 7, 2017. The applicant submits that the disability certificates were the only way the applicant’s healthcare providers could communicate changes in his condition to the respondent. This is not accurate. Reports, correspondence or other communications could have been provided to the respondent. More importantly, the disability certificates here contain medical information which is nearly identical except for the addition of a diagnosis of sprain and strain of the elbow and other chronic pain many years after the accident and there is no sufficiently persuasive medical evidence that the applicant’s injuries in these 2017 disability certificates resulted from the accident. There is evidence to the contrary, for example, in the self-reporting made by the applicant to Dr. Yee.

Interest

29As no benefits are payable, no interest is payable.

ORDER

30For the reasons outlined above, the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to the treatment plans, cost of examination and other amounts claimed. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).