J. T. v. Primmum Insurance Company, 2020 CanLII 63590

Citation: J. T. vs. Primmum Insurance Company, 2020 ONLAT 18-009043/AABS

Released Date: 08/26/2020

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:

J. T.

Applicant

and

Primmum Insurance Company

Respondent

DECISION [AND ORDER]

PANEL:

Poeme Manigat, Adjudicator

APPEARANCES:

For the Applicant:

J. T., Self Represented

For the Respondent:

Eleonora Izmaylov, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“JT”) was injured in an automobile accident (“the accident”) on November 4, 2013 in a Walmart parking lot and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). JT applied to the Licence Appeal Tribunal – Automobile Accident Service (“the Tribunal”) when his claims for benefits were denied by the respondent, Primmum Insurance.

2The respondent denied the applicant’s claims because it determined that he did not sustained a catastrophic impairment and that his injuries fit the definition of “minor injury” as stipulated under s. 3(1) of the Schedule, therefore falling within the Minor Injury Guideline² (“MIG”). The applicant’s position is the opposite.

3If the respondent’s position is correct, the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed under s.18(1) of the Schedule.

ISSUES

4Has the applicant sustained a catastrophic impairment as defined by the Schedule?

5Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a cap of $3,500.00 and to treatment within the Minor Injury Guideline (“MIG”)?

6Is the applicant entitled to an award under s. 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

7Is the applicant entitled to costs because the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith?

RESULT

8Based on a review the evidence before me, I find that the applicant did not sustain a catastrophic impairment. Furthermore, his injuries resulting from the November 4, 2013 motor vehicle accident are predominantly minor, subject to the $3,500.00 limit and shall be treated within the MIG.

9The applicant is not entitled to costs.

10The applicant is not entitled to an award under Ontario Regulation 664.

ANALYSIS

Catastrophic Impairment

11“Impairment” is broadly defined in the Schedule as “a loss or abnormality of a psychological, physiological or anatomical structure or function.”³ However, there are several ways of being impaired, more specifically, being catastrophically impaired.

12The Schedule sets out different categories of catastrophic impairment. An insured person must only prove entitlement to one category to be deemed catastrophically impaired. In this application, the applicant claims he has sustained a catastrophic impairment pursuant to subsection 3.1(1), paragraph 7 of the Schedule.

13That section of the Schedule defines catastrophic impairment as a combination of mental or behavioural with a physical impairment resulting in 55% or more of the whole person.

14In June 2017, the applicant submitted an OCF-19 signed by his family physician⁴, indicating that the applicant suffered “extensive moderate-severe degenerative disease of cervical spine, severe neck and radicular upper limb pain likely related to cervical spine, severe neck and radicular upper limb pain likely related to cervical spine findings” applying under subsection 3.1(1), paragraph 7: an impairment resulting in 55% or more of the applicant’s whole person.

15There is no additional medical evidence provided by the applicant assessing the severity of his injuries. There is no expert opinion provided by the applicant in support of his claim that he sustained a catastrophic impairment as a result of the November 4, 2013 accident. The applicant did not undergo any catastrophic determination assessment related to the November 4, 2013 motor vehicle accident. The general practitioner who completed the applicant’s undated OCF-19 did not refer the applicant to a specialist to confirm her diagnosis.

16The respondent takes the position that the applicant has not sustained a catastrophic impairment. To date, the respondent stated that the applicant has yet to submit a treatment plan for any injuries related to the accident of November 4, 2013.

17The respondent relies on the results of the Insurer Examinations to support its position that the applicant’s injuries do not meet the threshold for catastrophic impairment. The applicant completed a Neurology Assessment⁵ and an Orthopaedic Assessment⁶.

18The Neurology Insurer Examination Assessor reported that the applicant had good neck movements on flexion, extension and lateral rotation. He also stated that the applicant’s neurological examination was unremarkable, and that the applicant had no neurological sequelae, no neurological impairment in the central nervous system or with respect to cranial nerves. He also concluded that the applicant had no neurological impairment in the spinal cord or peripheral nervous system and that the headaches experienced by the applicant are not attributable to any neurological findings. The Neurology Insurer Examination Assessor opined that the applicant’s WPI is rated at 0% and that the applicant does not suffer from a catastrophic impairment as a result of the November 4, 2013 motor vehicle accident.

19The Orthopaedic Insurer Examination Assessor reported that the applicant had no radiculopathy or any musculoskeletal pathology, and no ongoing orthopaedic impairment related to the November 4, 2013 motor vehicle accident.

20The respondent also arranged for an integrated catastrophic impairment analysis⁷, in which the Assessor reported that there is no documentation to support any psychological issues and there is no documentation to support treatment of any impairment related to the November 4, 2013 motor vehicle accident. The Assessor concluded stating that complaints and symptoms are present without signs of impairment.

21I find these Insurer Examination reports persuasive. Two doctors conducted an in-person examination of the applicant and a third doctor reviewed the medical records available and they all concluded that the applicant’s injuries resulting from the November 4, 2013 motor vehicle accident do not meet the threshold of catastrophic impairment. In addition, there is no expert opinion before me diagnosing the applicant’s injuries as it relates to the November 4, 2013 accident, to be a catastrophic impairment. The only piece of medical evidence available to support the applicant’s position that his injuries resulting from the November 4, 2013 accident are catastrophic is the OCF-19 signed by his family physician. The OCF-19 alone is not enough to prove that the applicant’s injuries resulting from the November 4, 2013 motor vehicle accident caused the applicant to suffer a catastrophic impairment. There is no evidence of treatment being sought by the applicant to treat his injuries resulting from the November 4, 2013 accident. Consequently, I find that the applicant has failed to substantiate the claim that his injuries from the November 4, 2013 accident resulted in an impairment amounting to 55% or more of a whole person impairment (WPI).

The Minor Injury Guideline

22Section 3(1) of the Schedule defines a “minor injury” 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 MIG defines, in detail, what each of these terms mean.

23Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

24The applicant takes the position that his injuries fall outside the MIG. The onus is on the applicant to show that his injuries fall outside the MIG⁸.

Did the applicant sustain minor injuries?

25The applicant argued that his injuries resulting from the November 4, 2013 motor vehicle accident cannot be treated within the MIG due to his pre-existing injuries that he suffered as a result of previous motor vehicle accidents. The applicant argued that the November 4, 2013 accident aggravated his pre-existing injuries.

26For the applicant to prove that his pre-existing conditions take him outside the MIG, the following requirements, as laid out in s. 18(2) of the Schedule, must be met:

(1) There is compelling evidence of a pre-existing injury;

(2) The pre-existing injury is properly documented by a health practitioner before the subject accident; and

(3) This pre-existing injury would prevent the insured from achieving maximal recovery if limited to the funding limit of $3,500.00 or the MIG.

27The applicant argued that he sought physiotherapy treatment for the injuries that he suffered as a result of the subject accident. He stated that he had to stop the treatments because it was detrimental to his healing process. The applicant further stated that on or about May 27, June 4 and June 15, 2015, he sought chiropractic treatment at the Union Family Chiropractic with Jerome Chan, at his own expense. Despite making this assertion, the applicant did not provide any records from Jerome Chan of the Union Family Chiropractic clinic.

28In support of his position that his injuries cannot be treated within the MIG, the applicant relies on his family physician records dated March 17, 2011 where he was diagnosed with major soft tissue injury. The applicant argued that this is compelling evidence that his pre-existing medical condition supports the proposition that his November 4, 2013 injuries cannot be treated within the MIG.

29The respondent takes the position that the applicant’s injuries resulting from the November 4, 2013 accident are minor. The respondent submitted that the applicant was diagnosed with whiplash as a result of the November 4, 2013 accident, which it submits is a minor injury. The respondent argued that the family physician report dated April 6, 2019 simply states “[the applicant] reports that the MVA in 2013 aggravated injuries which he previously had”. The respondent argued that there is no medical evidence suggesting that the applicant cannot achieve maximum medical recovery within the MIG limits.

30The respondent further argued that the applicant does not have an opinion from a medical professional recommending treatment beyond the $3,500.00 MIG limits. As well, the respondent stated that the applicant only used $100.00 of the $3,500.00 MIG limits available to him. The respondent argued that the available medical evidence shows that the applicant’s injuries resulting from the November 4, 2013 accident are predominantly minor injuries.

31The applicant produced several records regarding his previous motor vehicle accidents. For example, the applicant produced a radiology report dated April 22, 2010 stating that he suffered from cervical ligament instability and major soft tissue injuries. The applicant also produced a report from Ontario Spinal Assessment Clinic Inc. dated November 22, 2011 in which the doctor stated that he is at risk of developing chronic pain and disability. However, the applicant has not produced any medical records post November 4, 2013 where a medical professional state that due to his pre-existing injuries he cannot be properly treated within the MIG limits.

32The disability certificate (OCF-3) dated December 10, 2014 submitted by the applicant in relation to the November 4, 2013 accident list his injuries as whiplash. The treatment confirmation form (OCF-23) dated December 10, 2014, completed by the applicant’s family physician states that the applicant had prior motor vehicle accidents and that there are no barriers to recovery for the applicant. Despite being aware of the applicant’s prior motor vehicle accidents, his family physician did not see these previous injuries as a barrier to his recovery.

33On November 22, 2013, the applicant completed a CT scan of his head and spine which revealed that he had no abnormalities and moderate degenerative changes and mild disc bulging.

34On December 4, 2013, the applicant completed a CT scan of his thoracic spine that revealed that he had mild degenerative changes in the upper and mild thoracic spine, mild disc space narrowing, no spinal stenosis, no epidural or intradural abnormalities, and no acute bone or other types of abnormalities.

35The applicant’s x-ray results for his cervical spine dated May 18, 2017 confirmed that there were no evidence of fracture, subluxation or cervical ribs. The x-ray results also confirmed that the applicant suffered from mild disc space narrowing.

36The medical evidence available pertaining to the November 4, 2013 motor vehicle accident suggest that the applicant’s injuries are minor.

37I am satisfied that the applicant provided medical records that may suggest that he had pre-existing injuries. However, the existence of pre-existing injuries alone does not automatically take an applicant out of the MIG. The applicant must lead evidence to support the proposition that the pre-existing injuries will prevent him from being properly treated within the MIG limits.

38Based on the evidence before me, I am not persuaded that the existence of pre-existing injuries warrants taking the applicant out of the MIG. The fact that the applicant suffered previous injuries does not mean the applicant’s accident-related injuries (November 4, 2013 accident) cannot be treated within the MIG limits. To be treated outside the MIG, the applicant must demonstrate that his accident-related injuries cannot be properly treated within the MIG limits, due to the pre-existing medical condition that was documented by a health practitioner before the subject accident and that will prevent the applicant from achieving maximum medical recovery from the MIG if the insured person is subject to the limit or is limited to the goods and services authorized under the MIG.

39The applicant states that he has pre-existing injuries and he provided medical records to substantiate these injuries. However, he failed to produce medical evidence to suggest that as a result of these previous injuries, he cannot be properly treated within the MIG limits. Simply stating and proving the existence of previous injuries is not enough to seek treatment outside the MIG limits.

Award

40As per Ontario Regulation 664, an award may be granted where the Tribunal finds that an insurer unreasonably withheld or delayed the payment of benefits.

41There is insufficient evidence before me to grant an award to the applicant. As stated above, the applicant failed to seek treatment and only used $100.00 of the $3,500.00 limit that was available to him. There is no treatment plan submitted by the applicant and consequently, there is no treatment plan in dispute. The applicant has not provided any proof of treatment incurred. Therefore, no award can be granted where there are no disputed benefits that are payable.

Costs

42I find that the applicant is not entitled to costs.

43Rule 19.1 of the Safety, Licencing Appeals & Standards Tribunals Ontario Common Rules of Practice and Procedure, October 2, 2017 provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted in an unreasonable, frivolous, vexatious manner or in bad faith. Rule 19.6 sets a limit of $1000.00 on costs.

44The applicant claimed costs and argued that the respondent acted in a deceptive and unfair manner.

45The costs provisions of Rule 19.1 are not intended to compensate parties for suffering an inconvenience or for the costs of their involvement in filing an application with the Tribunal. Costs are awarded to ensure civility, respect and order during Tribunal proceedings, and to deter conduct that threatens the orderly and civil resolution of an application.

46The applicant failed to produce evidence concerning the respondent’s alleged deceptive and unfair behavior. The applicant refers to prior dealings that he had with the respondent and state that he filed a complaint against the respondent with the Financial Services Commission of Ontario alleging deceptive practices and unfair conduct. This complaint and the other alleged inappropriate behavior claimed by the applicant appears to be in relation to other previous proceedings which have no bearing on this application. The applicant has not raised any conduct on the part of the respondent in respect to this application that would justify an order for costs.

47Without the details of the allegation surrounding the respondent’s alleged misconduct, I am not able to ascertain the alleged inappropriate conduct of the respondent.

48The parties are engaged in an adversarial process which may lead to discontent between them. However, the costs provision in Rule 19.1 is not intended to remedy unpleasant situations that are common in litigation. Rather, an order for costs is used to maintain a certain level of respect, civility and decency throughout the process.

49After considering the evidence before me, I am not persuaded that the respondent’s behaviour amounts to being unreasonable, frivolous, vexatious or to acting in bad faith. Therefore, no costs are ordered against the respondent.

CONCLUSION

50For the reasons outlined above, I find that:

i. The applicant did not suffer a catastrophic impairment as a result of the November 4, 2013 accident.

ii. The applicant’s injuries resulting from the November 4, 2013 accident fall within the MIG limits.

iii. The applicant is not entitled to an award under Regulation 664.

iv. The applicant is not entitled to a costs award.

v. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act
3. 3Schedule s. 3(1)
4. 4OCF-19, Dr. Opara, Family Physician, Undated
5. 5Dr. Garry Moddel Neurology Report dated October 23, 2017.
6. 6Dr. Osama Gharsaa Orthopaedic Report dated October 23, 2017.
7. 7Dr. Darrin Milne Report dated October 25, 2017.
8. 8Scarlett v. Belair, 2015 ONSC 3635 para.24