Chateram Bharat v. Wawanesa Mutual Insurance Company, 2021 CanLII 50778

Licence Appeal Tribunal

Citation: Chateram Bharat v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-007188/AABS

Release date: 06/09/2021

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:

Chateram Bharat Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION

ADJUDICATOR: Melody Maleki-Yazdi

APPEARANCES:

For the Applicant: Fraser R. Gow, Counsel Matthew C. MacIsaac, Counsel

For the Respondent: Tim Gillibrand, Counsel

HEARD by teleconference: and by written submissions

OVERVIEW

1Chateram Bharat (“the applicant”) was injured in an automobile accident (“the accident”) on April 29, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims for medical benefits and costs of examinations because it was determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline² (“the MIG”).

ISSUES

3The following issues are in dispute for this hearing:

i. Are the applicant’s injuries predominantly minor as defined in s. 3(1) of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

ii. If the applicant’s injuries are not within the MIG, then the Tribunal must determine the following issues:

(i) Is the applicant entitled to receive payment for the cost of examinations in the amount of $1,216.72 for an attendant care assessment, recommended by Physio Fix and Fitness in a treatment plan (OCF-18) dated June 22, 2017, and denied by the respondent on July 6, 2017?

(ii) Is the applicant entitled to receive payment for the cost of examinations in the amount of $2,145.05 for a psychological assessment, recommended by Physio Fix and Fitness in a treatment plan (OCF-18) dated June 26, 2017, and denied by the respondent on July 26, 2017?

(iii) Is the applicant entitled to a medical benefit in the amount of $4,499.12 for chiropractic treatment, recommended by Physio Fix and Fitness in a treatment plan (OCF-18) dated August 22, 2017, and denied by the respondent on September 12, 2017?

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

(v) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant’s injuries are predominantly minor as defined by s. 3(1) of the Schedule, and therefore subject to the MIG and the $3,500.00 funding limit on treatment.

5The applicant is not entitled to the other disputed benefits. As no benefits are overdue, it follows that no interest or award is payable.

ANALYSIS

Preliminary issue regarding new evidence

6The respondent raises a preliminary issue. The respondent submits that the applicant provided the following new evidence along with his reply submissions: the medical letter of Dr. Sanaz Zarinehbaf (general practitioner) from the Vaughan Pain Clinic dated February 9, 2021.

7The respondent submits that the Order dated August 17, 2020, stipulates the deadline for insurer addendum report(s), and all productions and evidence to be exchanged is December 9, 2020. The medical letter of Dr. Zarinehbaf was received by the respondent as part of the applicant’s reply submissions on February 11, 2021. The respondent submits that the applicant sought this new evidence following review of the respondent’s response submissions and that the applicant is trying to “sneak in” evidence well after the deadline stipulated in the Order dated August 17, 2020. The respondent requests that the evidence not be considered by the Tribunal.

8The applicant argues that he requested the Vaughan Pain Clinic to provide an opinion on how his pre-existing issues affect his recovery from the exacerbations and injuries experienced in the accident and that this request was made prior to the respondent’s response submissions but was only received after the respondent submitted its documents.

9I agree with the position of the respondent. Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure was implemented to ensure that parties know the case they have to meet and to allow them to prepare accordingly. Those who fail to comply with Rule 9.2 face the consequences outlined in Rule 9.4:

If a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.

10The applicant should have provided the respondent with this letter by the agreed upon date so that it could have properly reviewed the letter and had an opportunity to provide it to an assessor. Furthermore, the applicant could have filed a motion in order to request the Tribunal to extend the timeline for the production exchange. Instead, the applicant chose not to. I find that the applicant provided this letter with his reply submissions and deprived the respondent an opportunity to mount a proper defence. As such, I have not considered Dr. Zarinehbaf’s letter dated February 9, 2021 that was submitted by the applicant.

The Minor Injury Guideline

11Section 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.”

12Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

13The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.³

Does the applicant have pre-existing injuries sufficient to escape the MIG?

14Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to be exempted from the MIG, the applicant must provide compelling evidence meeting all three of the following requirements:

i. There was a pre-existing medical condition;

ii. The pre-existing medical condition was documented by a health practitioner before the accident; and

iii. The pre-existing condition will prevent maximal medical recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.⁴

15The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. The Schedule requires compelling evidence to be provided using the treatment plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.

16It is the applicant’s position that his injuries do not fall within the MIG because his pre-existing injuries, medical conditions and chronic pain, documented by health practitioners treating the applicant before the accident and by health practitioners who treated the applicant following the accident, prevent him from achieving maximal medical recovery under the MIG.

17The applicant argues that he has the following injuries and conditions that were exacerbated by the accident: neck and back pain, ankylosing spondylitis and chronic pain.

18The applicant submits that his pre-existing neck and back pain has been exacerbated as a result of the accident. The applicant submits that he has also been diagnosed with ankylosing spondylitis and chronic pain. The applicant submits that in 2004, he was involved in an accident and sustained neck and back injuries which ultimately required surgery (a cervical laminectomy) on his neck in 2009. In 2011, he was involved in another accident during the course of his employment in which he reinjured his neck and back. The applicant relies on the clinical notes and records of his family physician, Dr. Neveen Hanna, as well as a progress report written by Dr. Randall Ricohermoso (chiropractor) at Physio Fix and Fitness dated August 15, 2017 (approximately 3.5 months after the accident) and a progress report written by Dr. Zarinehbaf (general practitioner) at the Vaughan Pain Clinic dated September 17, 2019 (approximately 2.5 years after the accident).

19Regarding Dr. Hanna’s records, the applicant submits that his complaints of pain in his neck and back remained consistent from his prior accidents until the subject accident. He was diagnosed with gout in June of 2015 and since then complained of pain in his knees and right leg from his knee to foot. He has also been diagnosed with ankylosing spondylitis.

20In Dr. Ricohermoso’s progress report dated August 15, 2017, he concludes that the applicant should not be subject to the MIG. He opines that the applicant’s quantity and severity of injuries (multiple and serious injuries take longer to recover), his pre-existing conditions (compounded with the current injuries), his older age (tissue recovery near the age of 60 is longer) have all hindered his recovery.

21In Dr. Zarinehbaf’s progress report dated September 17, 2019, she diagnoses the applicant with the following: myofascial pain; mechanical low back pain; piriformis irritation syndrome; right facial pain – possible post-traumatic neuropathy and chronic pain syndrome.

22The respondent disagrees with the applicant and relies on the family physician’s insurer’s examination (“IE”) assessment conducted by Dr. Eric Silver, general practitioner, to support that the applicant’s injuries are predominantly minor and subject to the MIG limit. Dr. Silver concluded in his report, dated October 10, 2017 (the applicant was assessed on September 26, 2017, approximately five months after the accident), that the applicant sustained uncomplicated soft tissue injuries as a result of the accident. He noted that he was unable to determine to what degree any potential pre-existing conditions might affect the applicant’s recovery due to a lack of clinical information provided. The respondent submits that the psychologist’s IE assessment conducted by Dr. Randy Silverman, psychologist, supports that the applicant did not have a psychological disorder or impairment as a result of the accident. Dr. Silverman concluded in his report, dated September 29, 2017 (the applicant was assessed on September 18, 2017, approximately five months after the accident), that the applicant has not developed clinically significant psychological distress in relation to the accident, as reflected by his self-report, clinical presentation and the results of objective psychometric testing. I note that the applicant has not made any submissions regarding any psychological impairments he may experience as a result of the accident.

23I find that the applicant’s pre-existing neck and back pain, ankylosing spondylitis and chronic pain have not been exacerbated by the accident and do not prevent maximal medical recovery. The evidence indicates that the applicant is not functionally impaired as a result of the accident and that the pain he experiences does not affect his life in a significant way. I find that in the months and years following the accident, the applicant’s pre-existing neck and back pain, ankylosing spondylitis and chronic pain improved to such an extent that although he has been receiving financial support from the Ontario Disability Support Program (“ODSP”), he now intends to work as a commercial truck driver. I came to this finding based on the evidence before me.

24I want to address the applicant’s jaw pain. Although the respondent submits that the applicant’s predominant complaint is right jaw pain which is unrelated to the accident, the applicant did not make any submissions regarding his jaw pain. In fact, during the teleconference portion of the hearing, the applicant objected to questioning from the respondent regarding his jaw pain indicating that it was contradictory to his affidavit.

25I agree with the respondent that the evidence indicates that the applicant’s predominant complaint is regarding his right jaw pain. I find the Dr. Hanna’s clinical notes and records to be helpful because the applicant is an individual who has frequent appointments with his family physician. Dr. Hanna’s note dated May 19, 2015, prior to the accident, refers to the applicant’s chronic jaw pain following a dental procedure. A review of the records indicates that the applicant’s main complaint since 2018 has been regarding his pre-existing jaw pain following a dental procedure. The following records are of note: on September 6, 2018 (approximately one year and four months after the accident), Dr. Hanna noted “jaw pain recurred” and on November 10, 2018, he noted “face pain chronic saw pain clinic who were no help.” At his appointments throughout 2019, the applicant complained about his facial and jaw pain on April 4, 2019; April 11, 2019; May 25, 2019; August 1, 2019; and August 22, 2019.

26On August 1, 2019, Dr. Hanna diagnosed the applicant with chronic right facial neuropathic pain and referred him to a pain clinic. By September 17, 2019, the applicant visited the Vaughan Pain Clinic resulting in Dr. Zarinehbaf’s progress report. Therefore, I find that the primary purpose of the visit was with regard to the applicant’s chronic right facial neuropathic pain. Dr. Zarinehbaf indicates that the applicant underwent dental procedures in 2012 and that he has been experiencing the facial pain since then. Therefore, the applicant’s main complaint is unrelated to the accident. Although I note that Dr. Zarinehbaf’s letter indicates that the applicant also complains of bilateral shoulder and lower back pain.

27I placed weight on the applicant’s examination under oath (“EUO”) dated August 8, 2017 (approximately three months after the accident). At the EUO, when the applicant was asked whether he required care from anyone at the time of the accident, he stated that his neck and lower back problems had improved a lot and he was able to do things himself. He stated that at the time of the accident he did not need any assistance with any daily tasks. When asked whether he needed help with any personal care activities before the accident, such as with dressing himself, showering and carrying things, he stated that he did not. He stated that it was not easy, but he managed himself. He was on ODSP at the time of this accident due to his neck and lower back problems. He stated that before the accident the restrictions with his lower back were the following: lifting was the biggest issue, there was some pain when bending and bending was restricted to some degree. Regarding his neck pain, he stated that turning of the neck “wasn’t there.” He stated that the two rods in his neck get very painful from the neck surgery. He stated that his worst symptom as a result of the accident is his lower back and followed after are his neck and shoulders. He stated that he has a very difficult time bending and cannot have a proper shower because he is unable to bend down to scrub his feet.

28At the EUO the applicant stated he has driven to Kirkland Lake twice since the accident, and he thought the last time was the week prior to the EUO. The respondent submits that Kirkland Lake is roughly a 6-hour drive from Etobicoke, where the applicant resides.

29According to Dr. Hanna’s note dated March 14, 2019 (approximately two years after the accident), the applicant reported that he was travelling to China in one month for 10 days. On August 1, 2019, Dr. Hanna noted that the applicant was “feeling well asymptomatic” and that he was looking for a commercial truck driver licence. Dr. Hanna completed a medical report form for the Ministry of Transportation in support of the applicant obtaining such a licence on July 6, 2019. Dr. Hanna listed the applicant’s conditions as including CAD, ankylosing spondylitis and Type II Diabetes. The medical examination portion of the form regarding the applicant’s locomotion for the neck and lumbar, noted “mild restricted neck rotation. Hx of cervical laminectomy 2009”. I find that when Dr. Hanna completed this form, he specifically turned his mind to the applicant’s medical health. Therefore, according to Dr. Hanna, by at least July of 2019, the applicant was functionally well enough to apply for a commercial truck driver licence although he had been on ODSP prior to the accident.

30I find that the applicant’s pre-existing neck and back pain, ankylosing spondylitis and chronic pain have not been exacerbated by the accident and do not prevent maximal medical recovery. Therefore, the applicant’s injuries are predominantly minor as defined by s. 3(1) of the Schedule, and therefore subject to the MIG and the $3,500.00 funding limit on treatment.

Remaining MIG funding

31I have concluded that the applicant is subject to the MIG funding limit. The respondent submits that it has approved medical and rehabilitation benefits in the amount of $3,499.31 meaning that there is under one dollar left remaining under this funding limit (the $3,500.00 limit minus $3,499.31). The claimed treatment plans exceed the MIG funding limit. Therefore, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.

Is the applicant entitled to an award under Regulation 664?

32Pursuant to section 10 of Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.

33I find an award is not appropriate. The applicant submits that he provided the respondent with medical records through the exchange of productions and despite evidence of the applicant’s pre-existing injuries and their chronic nature, the respondent placed the applicant under the MIG and unreasonably withheld benefits. As such, the applicant further submits that the delay in removing him from the MIG has caused the applicant pain, suffering and undue hardship.

34I find that there is no evidence to suggest that the respondent unreasonably withheld or delayed the payment of benefits. In any case, the applicant was not successful in meeting his substantive burden, so it follows that the Tribunal cannot order an award.

CONCLUSION

35The applicant’s injuries are predominantly minor as defined by s. 3(1) of the Schedule, and therefore subject to the MIG and the $3,500.00 funding limit on treatment.

36The applicant is not entitled to the other disputed benefits. As no benefits are overdue, it follows that no interest or award is payable.

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. 3Scarlett v. Belair Insurance, 2015 ONSC 3635.
4. 4Minor Injury Guideline, Superintendent’s Guideline No. 01/14, issued pursuant to s. 268.3 of the Insurance Act, page 5, heading 4, “Impairments that do not come within this Guideline.”