R.L. v. The Guarantee Company of North America, 2020 CanLII 63608

R.L. vs. The Guarantee Company of North America, 2020 ONLAT 19-004673/AABS

Citation: R.L. vs. The Guarantee Company of North America, 2020 ONLAT 19-004673/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:

R.L.

Applicant

and

The Guarantee Company of North America

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Sandeep Johal

APPEARANCES:

Counsel for the Applicant:

Kevan Wylie

Counsel for the Respondent:

Kerry L. Figliomeni

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on August 15, 2011 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a driver of a vehicle that was rear-ended in a parking lot by another vehicle which was being driven by his wife.

3The applicant applied for medical benefits and the costs of examinations that were denied by the respondent on the basis that the medical benefits and costs of examinations were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4The respondent raises the issue of causation with respect to the treatment plans and cost of examinations in dispute for this hearing. The respondent’s causation argument is a as a result of the applicant’s pre-accident health history, specifically a second motor vehicle accident in November 2017, and because the applicant relies upon medical evidence from 2012, 2013 and 2014 in support of the treatment plans and cost of examinations which were submitted in 2018.

ISSUES TO BE DECIDED

5The following are the issues to be decided:

i. Is the applicant entitled to receive a medical benefit in the amount of $2,918.50 for chiropractic treatment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted March 8, 2018, and denied by the respondent on May 30, 2018?

ii. Is the applicant entitled to receive a medical benefit in the amount of $6,911.99 for physiotherapy treatment, recommended by Spinetec Health Care Solutions in a treatment plan submitted March 7, 2018, and denied by the respondent on March 22, 2018?

iii. Is the applicant entitled to receive a medical benefit in the amount of $9,303.30 for medication, which was claimed in a treatment plan submitted April 16, 2018 and denied by the respondent on April 16, 2018?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,881.50 for a Chronic Pain Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted March 7, 2018, and denied by the respondent on May 30, 2018?

v. Is the applicant entitled to payments for the cost of examinations in the amount of $2,881.50 for a Psychological Assessment, recommended by Meditecs Independent Medical Examinations in a treatment plan submitted March 8, 2018, and denied by the respondent on March 22, 2018?

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

viii. In the respondent’s submissions, the issue of whether the accident was the cause of the applicant’s injuries was raised. As a result, the issue of causation will also be addressed as part of this written hearing.

RESULT

6Based on the totality of the evidence before me, I find the applicant is not entitled to any of the benefits in dispute for this hearing.

7As a result of there being no outstanding benefits owing, there is no interest and no award payable for unreasonably withheld or delayed payments.

Late filing of evidence

8The applicant relies upon a note from [The Hospital] dated July 5, 2018 in support of his complaints of shoulder pain.² The respondent’s position is that this note was provided for the first time with the applicant’s written submissions and not by the production deadline of December 13, 2019. As a result, the respondent requests that the Tribunal disregard the note. Furthermore, the respondent submits that there is no context for this visit as the applicant’s shoulder pains were long held to be unrelated to the subject accident and that the applicant was involved in another motor vehicle accident several months prior to the [The hospital] visit.

9In my view, the prejudice to the respondent is minimal in allowing the applicant to rely upon the [The Hospital] note as it has had the opportunity to review the one-page note prior to when its submissions were due. Any prejudice the respondent may have had was cured as it was afforded the opportunity to review the note and provide a response in its submissions. The applicant is allowed to rely on the note as part of his evidence.

10However, I am not convinced this note provides much assistance to the applicant as the note is difficult to read and the note is seven years post-accident. Furthermore, it does not provide any context of the visit or whether it is even related to the subject accident. As a result, I place little weight on this evidence.

ANALYSIS

Causation

11Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the impairments from which the applicant is suffering and the treatment plans, expenses and the cost of examinations are not reasonable and necessary for the following reasons.

12The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.³ 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 or sufficient in itself to have caused the injuries at issue. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause”.⁴

13The respondent submits that this matter has been before the Financial Services Commission of Ontario (“FSCO”) and this Tribunal previously and the applicant’s injuries were found to be minor in nature or degenerative.⁵

14The respondent further submits that the medical evidence suggests that the accident was not a necessary cause of the applicant’s physical complaints because of the following:

i. The applicant sustained soft-tissue injuries as a result of the accident which have long since healed.

ii. The applicant has a significant pre-accident health history for coronary artery disease, testicular cancer, high blood pressure and cholesterol and degenerative osteoarthritis.

iii. Since the accident, and unrelated to the accident, the applicant’s heart condition has worsened with age.⁶

iv. The applicant’s complaints related to his shoulders, neck and back are related to his pre-accident degenerative disease and not the subject accident as he was involved in another motor vehicle accident in November 2017.⁷

v. Aside from the prescription note for an EMG and consult, and a January 28, 2018 report from the family physician, no other medical records have been provided from the applicant’s family physician, treating cardiologist, or any treatment providers beyond April 7, 2017.

vi. No treatment records, notes, or attendance sheets have been provided by the treatment facilities who submitted the treatment plans in dispute.

15The respondent further relies upon the Tribunal case of R.A.A. and Aviva General Insurance,⁸ in support of its position that the “but for” test applies when determining entitlement to benefits and assessing an insured’s pre-existing medical conditions and what injuries and impairments were caused as a result of the accident.

16It is the respondent’s position that the applicant would have suffered from pain, impairments, limitations and restrictions if the subject accident had not occurred due to his pre-existing degenerative disease and other health issues and/or injuries sustained in the subsequent accident of November 2017. Furthermore, the applicant has not provided any medical evidence or expert opinion with respect to causation.

17The applicant does not provide submissions directly on the issue of causation but does point to the medical evidence in support of the applicant’s injuries being as a result of the accident.

18The applicant points to the clinical notes and records of his family doctor, Dr. Snyder who noted on February 2, 2012, March 6, 2012 and April 26, 2012 that the applicant had neck pain, radiating to his upper back and shoulders. Dr Snyder noted the applicant was involved in the subject accident 8 months prior to the visit and the osteoarthritis of his neck/shoulders and tendonitis of the shoulders was likely inflamed by the accident.⁹

19The applicant further relies upon the s. 44 insurer examination (“IE”) assessment by Dr. Mathoo, physiatrist, dated May 15, 2018 wherein he opined that “as a result of the accident, the degenerative changes became symptomatic.”¹⁰ Furthermore, the applicant relies upon the s. 25 report of Dr. Richards dated October 15, 2014 wherein he opined that while some degenerative change may have been present prior to the motor vehicle accident, it was relatively asymptomatic and the applicant did not have a functional impairment.¹¹

20After reviewing the medical evidence, I find on a balance of probabilities that the issues in dispute are not reasonable and necessary because they are not related to any physical injuries sustained in the subject accident, but to his pre-existing conditions.

21The police report did not list any injuries as a result of the collision.¹² The applicant spoke to his insurance broker with respect to a damage claim and did not report any injuries.¹³

22The applicant visited his family physician, Dr. Snyder, on six occasions between August 22, 2011 and December 29, 2011 and did not mention the accident or any related injuries. He visited with his cardiologist on December 19, 2011 and did not report the accident or any injuries. He reported to cardiologist, Dr. Kim, that he felt “great” and he went to the gym every morning to use the treadmill, weights and to swim.¹⁴

23On February 2, 2012 the applicant for the first time reported the accident to his family doctor. On a visit on May 8, 2012, Dr. Synder opines that the applicant’s calcific tendinopathy and mild osteoarthritis of his neck and shoulders are chronic conditions and not necessarily related to the motor vehicle accident.¹⁵

24The treatment plans in dispute were submitted in 2018 to the respondent and the applicant has not directed me to compelling contemporaneous evidence in support of why the applicant is in need of treatment seven years post accident. The applicant relies upon evidence mainly from 2012, 2013 and 2014 in support of treatment in 2018.

25On August 30, 2012, which is one-year post accident, the applicant’s tendinosis of the shoulders was worsening, however, there is no mention of the motor vehicle accident as a necessary cause. On August 31, 2012, Dr. Snyder notes the applicant has had increasing pain for two weeks with respect to his tendinosis. There is no mention of the accident as being a cause or a necessary cause of this increasing pain.

26After November 2012, the applicant left Dr. Snyder’s practice and visited with Dr. Huth. On November 14, 2012, Dr. Huth states that he “cannot comment on [the applicant’s] right should function prior to” that date.¹⁶

27The applicant also relies upon an orthopaedic report dated October 15, 2014 by Dr. Richards, a professor of surgery at [The Sciences Centre]. Dr. Richards opines that the applicant injured both shoulders and his low back as a result of the accident. He also opines that the applicant is unable to return to his pre-injury level of activity as a result of chronic severe pain in the area of the right acromion and upper arm, numbness in his right arm and fingers of the right hand as well as chronic low back pain and left numbness.¹⁷

28The respondent’s position is that Dr. Richards’ report was a report obtained with respect to the applicant’s tort claim and it does not speak to whether any of the issues in dispute are reasonable and necessary. As a result, I should not place any weight on the report.

29With all due respect to Dr. Richards, it is not clear on what documents he may have viewed in arriving at his conclusions or whether they were solely as a result of the subjective complaints of the applicant. The medical evidence submitted for this hearing do not support Dr. Richards’ conclusions and opinions. There is no documented evidence of any complaints of injuries immediately after the accident and it was not until approximately nine months post-accident that the applicant’s family doctor, Dr. Snyder, noted that the applicant’s neck and shoulder pains were chronic conditions but that they were not necessarily related to the subject accident.¹⁸

30Furthermore, the surveillance evidence seems to be at odds with the opinion reached by Dr. Richards. The surveillance shows the applicant being able to lift and carry a window frame, he was able to kneel on the ground, he was able to raise his arm over his head while working on a window and install a door frame. He was able to enter and exit his vehicle without discomfort, he was able to push a shopping cart and able to load pieces wood into his vehicle on his own without assistance.¹⁹

31The applicant further relies upon a psychological report dated September 27, 2017 by Dr. Pilowsky wherein she diagnoses the applicant with post-traumatic stress disorder with vehicular anxiety, major depressive disorder, single episode, moderate and somatic symptom disorder with predominant pain.

32The respondent relies upon an insurer examination (“IE”) conducted by Dr. Costa El-Hage, psychologist, on May 3, 2018 wherein he found validity issues with the psychometric tests conducted by him on the SIMS (Structured Inventory of Malingered Symptomatology), the P3 (Pain Patient Profile) and the PAI (Personality Assessment Inventory). Dr. Costa El-Hage further opined that there was insufficient support to provide a psychological diagnosis in relation to the accident as there was no evidence of any significant documented mental health concerns in any of the medical documentation. As a result, the report concluded that the applicant did not require any formal or informal psychological treatment.²⁰

33The psychological assessment in dispute was recommended by the applicant’s chiropractor and, in my view, it would be beyond the scope of practice of a chiropractor to opine on psychological impairments of an applicant. Furthermore, there are no notations in any of the clinical notes and records of any of the applicant’s treating practitioners such as his family doctor outlining any concerns for the applicant’s psychological well-being that would necessitate a psychological assessment.

34The report of Dr. Pilowsky appears to be based entirely on the self-reports of the applicant as there does not appear to be any psychological concerns from the applicant’s family doctor or any other treating practitioner after the accident. As a result, I place less weight on Dr. Pilowsky’s report. Dr. Pilowsky’s report also seems to be at odds with the surveillance evidence of the applicant who appears to be able to drive a vehicle and does so on several occasions to the mall, to the hardware store, sometimes with his wife and at other times on his own. He does not appear to be any distress entering or exiting the vehicle or driving in general.

35To recap, according to Sabadash, the accident does not need to be “the cause” of the injuries, but at least “a necessary cause.”²¹ I am not persuaded by the applicant’s evidence that his neck and shoulder pains which existing prior to the subject accident were necessarily caused by the accident or worsened by the subject accident. With the onus being on the applicant, he has not satisfied me on a balance of probabilities that he would not have suffered the injuries “but for” the accident.

ORDER

36For the reasons outlined above, the applicant is not entitled to the claimed issues in dispute and as a result there is no interest that is payable or an award.

Released: August 26, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Written Submissions of the Applicant at Tab 7.
3. 3Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”).
4. 4Ibid at paras. 36, 39.
5. 517-006956 v Guarantee Company of North America, 2018 CanLII 110952 (ON LAT) at para. 38
6. 6Respondent’s Written Submissions at Tab 9.
7. 7Ibid at Tab 10.
8. 82019 CanLII 119759 (ON LAT).
9. 9Written Submissions of the Applicant at Tab 2.
10. 10Ibid at Tab 9.
11. 11Ibid at Tab 6.
12. 12Ibid at Tab 13.
13. 13Written Submissions of the Respondent at Tab 14.
14. 14Ibid at Tabs 15 and 16.
15. 15Respondent’s Written Submissions at Tab 18 page 93.
16. 16Ibid at Tab 19.
17. 17Written Submissions of the Applicant at Tab 6.
18. 18Ibid at Tab 2. Clinical Notes and Records of Dr. Snyder dated May 18, 2012
19. 19Written Submissions of the Respondent at Tabs 20, 22.
20. 20Ibid at Tab 37.
21. 21Sabadash at para. 39.