Jordan Lord v. Intact Insurance Company, 2020 CanLII 51294

Citation: J.L. v. Intact Insurance Company, 2020 ONLAT 19-005430/AABS

Released Date: 07/24/2020

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:

Jordan Lord

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Lisa Bishop Counsel

For the Respondent:

Joseph Tumini Counsel

HEARD By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, Jordan Lord (“applicant”), was involved in a pedestrian motor vehicle accident on July 17, 2017 (“accident”) and as a result of the accident the applicant suffered injuries. The applicant was 27 years of age at the time of the accident. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹ The applicant was denied certain benefits by the respondent, Intact Insurance Company (“respondent”), and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined that 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 The respondent also submits that, if the MIG is found not applicable, the applicant has not established that the disputed treatment plan is reasonable and necessary. The applicant’s position is the opposite.

ISSUES

3The issues to be decided in this hearing are:

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

ii. Is the applicant entitled to a medical benefit in the amount of $2,252.00 for chiropractic treatment recommended by Oshawa Physio & Rehab Center in a treatment plan (OCF-18) submitted on January 11, 2018 and denied on January 25, 2018?

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

iv. Is the applicant entitled to an award under Ontario Regulation 664 (“award”) because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

4The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is entitled to the medical benefit in the disputed treatment plan up to the MIG limit of $3,500.00, less all amounts already paid by the respondent for treatment, together with interest on any amount owing up to the MIG limit of $3,500.00. The applicant is not entitled to an award.

LAW

5The 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 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

6To 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 a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

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

7The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

8I find that the applicant’s physical injuries are minor injuries because the weight of the medical evidence indicates that the applicant did not suffer any physical injuries other than soft tissue injuries resulting from the accident.

9On the day of the accident the applicant reported her chief complaint was rib pain, but she also reported pain in her right flank, under armpit into the back of the ribs, and a small abrasion on her right knee and left hand to Lakeridge Health’s Dr. Poyner, emergency department physician. The applicant was discharged. On July 22, 2017, the applicant was assessed at Glazier walk-in clinic with myalgia, possibly whiplash injury and “heat, stretch, ice, naproxen” were prescribed. On July 31, 2017 the applicant complained to Dr. Zahavi, her family doctor, of ongoing pain in her right shoulder and hip. Dr. Zahavi’s impression was “msk, likely muscular”, and provided a physiotherapy referral, ordered an x-ray and ultrasound and prescribed medication. In the August 30, 2017 Disability Certificate (OCF-3) Dr. Zahavi lists the applicant’s injuries as acute whiplash associated disorder, acute thoracic spine and lumbar spine sprain/strain, acute right shoulder sprain/strain, acute right hip sprain/strain, sleep disturbances with disability anticipated to last 9-12 weeks. The records of Oshawa Physio & Rehab Center show that she had treatment from August 1, 2017 to January 22, 2018.

10Dr. Simpson, applicant’s chiropractor, in a treatment plan dated October 18, 2017 describes the applicant’s injuries: in addition to sprain and strain of the thoracic and lumbar spine, shoulder joint, rotator cuff capsule and hip, Dr. Simpson mentions “headache” and “other sleep disorders”. However, Dr. Simpson as a chiropractor is not qualified to diagnose and I give this little weight. Further headaches and sleep “disorders” were not noted by any of the applicant’s physicians at Lakeridge Health or Glazier walk-in clinic. Dr. Zahavi in the disability certificate refers to sleep “disturbances” anticipated to last 9-12 weeks and does not indicate the applicant’s sleep disturbance has risen to the level of a disorder.

11I find that all of the applicant’s injuries fall within the definition of “minor injury”. Except for the treatment plans which do not contain medical diagnosis, none of the applicant’s medical reports and records indicate any physical injuries other than soft tissue injuries resulting from the accident. However, the applicant argues that the partial tear in her right shoulder and her pre-existing hip injury remove her from the MIG.

Did the Applicant have a Partial Tear in her Right Shoulder and a Pre-existing Medical Condition that would Remove her from the MIG?

12I find that the applicant has brought forward no 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. The applicant argues that the partial tear in her right shoulder documented by Dr. Zahavi on August 1, 2017 and pre-existing her hip injury documented by Dr. Zahavi on July 31, 2017 remove her from the MIG.

13While Dr. Zahavi does note that the ultrasound report showed “small tear”, he also notes “likely not from this injury”. Dr. Zahavi’s conclusion that the “small tear likely not from this injury” does not constitute evidence linking this tear to the accident and in fact suggests the opposite.

14While Dr. Zahavi does note on July 31, 2017 “right hip pain – pre-existing but more inflamed and walking distance is limited more so now”, this is not compelling evidence of a pre-existing condition documented before the accident. Dr. Zahavi’s note is some two weeks after the accident. The applicant did not point to any pre-accident records documenting any pre-existing hip injury.

15Further, in the August 30, 2017 disability certificate Dr. Zahavi answers “no” to the question “Prior to the accident, did the applicant have any condition or injury that affected his/her ability to perform the activities listed in Part 6?” This indicates that Dr. Zahavi did not consider either the small tear or the right hip pain sufficiently significant enough to constitute a pre-accident condition or injury worth noting on the disability certificate.

16Neither of these Dr. Zahavi records constitute medical evidence sufficient to take the applicant’s injuries out of the MIG. I therefore find there is insufficient medical evidence before me that establishes the applicant should not be subject to the MIG because of any pre-existing medical condition or because her injuries are not within the MIG.

Is the Treatment Plan for $2,252.00 Reasonable and Necessary?

17As the respondent’s explanation of benefits dated February 14, 2018 shows that the respondent agreed to fund treatment in accordance with the MIG, it is unnecessary to consider the reasonableness and necessity of the disputed treatment plan. There is no evidence or submission that the respondent resiled from this position. The applicant is entitled to the medical benefit in the disputed treatment plan up to the MIG limit of $3,500.00.

Interest

18Interest is payable in accordance with s. 51 of the Schedule on any amount owing up to the MIG limit of $3,500.00.

Is the Applicant Entitled to an Award under Ontario Regulation 664?

19Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that there was no payment unreasonably withheld or delayed. The applicant also argues that respondent’s behaviour was unreasonable, “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” and the respondent did not adjust the file in a fair and even-handed manner, critically examine the applicant’s medical evidence but simply pretended it did not exist. I disagree. The respondent denied the plans for the reasons it expressed which was a reasonable position given the information it had including the reports it received from its assessors Dr. Gelman and Ms. Greenspan. For these reasons, there is no award.

ORDER

20For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. I also find that the applicant is entitled to the medical benefit in the disputed treatment plan up to the MIG limit of $3,500.00, less all amounts already paid by the respondent for treatment, together with interest on any amount owing up to the MIG limit of $3,500.00. The applicant is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
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.