Lewis v. Cooperators General Insurance Co., 2022 CanLII 106460

Lewis v. Cooperators General Insurance Co.

Citation: Lewis v. Cooperators General Insurance Co., 2022 CanLII 106460 Licence Appeal Tribunal File Numbers: 20-008111/AABS and 20-013517/AABS

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:

Delroy G. Lewis Applicant

and

Cooperators General Insurance Co. Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Rizwan Wancho, Paralegal

For the Respondent: Julianne Brimfield, Counsel Arijana B. Schrauwen, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

20-013517/AABS – the First Accident

1The applicant was involved in an automobile accident on October 30, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

20-008111/AABS – the Second Accident

2The applicant was involved in a subsequent automobile accident on December 6, 2019, and again sought benefits pursuant to the Schedule, which were denied by the respondent. The applicant filed a separate application for this accident.

3The parties participated in a Case Conference for both matters on March 3, 2021, where they consented to matters 20-008111/AABS and 20-013517/AABS being heard together.

PRELIMINARY ISSUES

4The parties agreed that the following preliminary issue is to be determined by the Tribunal:

20-008111/AABS – the Second Accident

1. Is the applicant entitled to an income replacement benefit (“IRB”) given that he elected to receive a non-earner benefit (“NEB”)?

SUBSTANTIVE ISSUES

5The parties consented to the following substantive issues for the Tribunal to determine:

20-013517/AABS – the First Accident

1. Is the applicant entitled to receive an income replacement benefit of $185.00 per week from November 6, 2020, to date?

2. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 limit in s.18(1) of the Schedule? Note: The parties agree the MIG limits have not been exhausted and their submissions shall identify the amounts remaining.

3. Is the applicant entitled to $2,361.55 for chiropractic, physiotherapy and massage therapy services from Scarborough South Physio & Rehab Centre Inc. proposed by Dr. Pascual, chiropractor, in a treatment plan (OCF-18) dated October 19, 2020, denied by the respondent on October 30, 2020?

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

20-008111/AABS – the Second Accident

1. Is the applicant entitled to receive an income replacement benefit (“IRB”) of $185.00 per week from December 13, 2019, to date?

2. Are the applicant’s injuries predominantly minor injuries as defined in s.3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 limit in s.18(1) of the Schedule? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.

3. Is the applicant entitled to $2,200.00 for a physiatry assessment from Scarborough Physiotherapy & Rehabilitation Centre proposed by Dr. S.W. Joseph Wong in a treatment plan (OCF-18) dated June 30, 2020?

4. Is the applicant entitled to $2,200.00 for a psychological assessment from Scarborough Physiotherapy & Rehabilitation Centre proposed by Dr. Gronkowska, in a treatment plan (OCF-18) dated June 30, 2020?

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

PRELIMINARY ISSUE LAW

6Section 5(1)2 of the Schedule states that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident, if the insured person was self-employed at the time of the accident and suffers, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their self-employment.

7Section 5(2) of the Schedule states that despite section 5(1) of the Schedule, an insured person is not eligible to receive an IRB if they are eligible to receive and have elected under section 35 of the Schedule to receive either a non-earner benefit or a caregiver benefit.

8Section 7(2)1 of the Schedule states that to determine the weekly amount of IRB payable to an insured person, it is the greater amount of 70 percent of the amount of the sum of the insured person’s gross weekly employment income and weekly self-employment income exceeds the weekly loss from self-employment for the first 104 weeks of disability, or $185 if the weekly IRB is for a week for which the person is entitled to receive an IRB after the first 104 weeks of disability. Section 7(2)2 then adds 70 percent of the weekly loss from self-employment incurred as a result of the accident to the amount in s. 7(2)1.

9Section 12(1) of the Schedule states that the insurer shall pay a non-earner benefit (‘NEB’) to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of, and within one hundred and four weeks after the accident and does not qualify for an IRB.

10Section 33 of the Schedule states that an applicant shall, within 10 business after receiving a request from the insurer, provide the insurer with any information required to assist the insurer in determining the applicant's entitlement to a benefit.

11Section 35(1) of the Schedule states that if an applicant may qualify for two or more of the IRB’, NEB and the caregiver benefit, the insurer shall, within 10 business days after receiving the application, give notice to the applicant advising them to elect, within 30 days after receiving the notice, the benefit they wish to receive.

12Section 35(2) of the Schedule states that if an applicant is determined to have suffered a catastrophic impairment as a result of an accident, the insurer shall, within 10 business days of the date of the catastrophic determination, give notice to the applicant under section 35(1) of the Schedule, that they may elect within 30 days after receiving the notice, to receive a caregiver benefit if the applicant would otherwise qualify for such.

13Section 35(3) of the Schedule states that an election under section 35(1) is final, regardless of any changes in circumstances, and can be subsequently changed only if permitted by section 35(2) of the Schedule.

RELEVANT FACTS FOR THE PRELIMINARY ISSUE for 20-008111/AABS

14The respondent submitted some background to the Tribunal regarding the applicant and his first and second accidents in relation to his election of benefits for the second accident.

15After the applicant was involved in the first accident², Mamta Shah, physiotherapist, completed a disability certificate³ (‘OCF-3’) for the applicant, which stated that the applicant met the disability test for both an NEB and IRB⁴.

16As a result, the respondent confirmed receipt of the OCF-3 and informed the applicant that it had hired an accountant to calculate the applicant’s IRB quantum of entitlement for his first accident because he was self-employed⁵. This letter also stated that the applicant was not entitled to an NEB, as he was working and not attending an academic facility or was a recent graduate of such at the time of the accident⁶.

17The respondent submitted that the applicant returned to work within a week of his first accident.

18The accountant retained by the respondent, Insignia Forensic Group (‘Insignia’), requested financial records from the applicant to calculate his quantum of entitled for an IRB⁷ in relation to his first accident. The respondent submitted that the applicant has yet to provide any of the requested records, and therefore cannot demonstrate that he was earning income at the time of the first accident.

19Furthermore, the respondent scheduled a section 44 insurer’s examination (‘IE’), which determined that the applicant did not sustain a complete inability to lead a normal life as a result of the accident as of May 2020⁸.

20The applicant then filed an application for the second accident and sought entitlement to an NEB⁹. Since the applicant had requested an IRB in his first application and now sought an NEB, a section 33 request was made to the applicant¹⁰ to complete an Election of Income Replacement, Non-Earner or Caregiver Benefit Form (‘OCF-10’).

21The respondent drew the Tribunal’s attention to the top of the OCF-10, which states:

Although you may be eligible for the Income Replacement Benefit, Non-Earner Benefit and/or the Caregiver Benefit, you can only receive one of these benefits. You must choose which benefit you wish to receive. Please note that your choice of benefits cannot be changed after this form has been submitted to the insurance company unless the injury is determined to be catastrophic. If you need help in choosing the benefit, please contact your insurance company representative immediately. Return this form no later than 30 days from the day you received it. Make a copy for your own records. Please print clearly.

22The applicant was contacted by the respondent due to his non-compliance with section 33, as he failed to submit the requested OCF-10¹¹.

23The applicant then submitted his completed OCF-10, where he elected to receive an NEB and not an IRB¹².

24At the Case Conference for the subject applications, the applicant requested to change the specified benefit in dispute for his second accident from an NEB to an IRB. The respondent raised the preliminary issue before the Tribunal, under Section 35(3) of the Schedule.

25The respondent submitted that according to section 35(1) of the Schedule, the applicant was sent an OCF-10, which noted that his election was required and final¹³.

26The respondent submitted that as the applicant had legal representation for his application, he ought to have been aware of the above.

27The respondent also submitted that though under the previous version of the Schedule, an injured party could change their election more freely, section 35(3) of the Schedule placed stricter limits on such election changes¹⁴.

28The respondent relied on matters 17-001606 v Unifund Assurance Company¹⁵ and G. N. K. vs. Aviva Insurance Canada¹⁶, where the Tribunal confirmed that the election of specified benefits is final.

29The applicant submits that only section 12(1) of the Schedule applied to the second accident.

30The applicant sustained injuries in his first accident, at which time he was self-employed. The applicant submitted that he was unable to work due to his injuries, but after some health improvements, resumed employment, albeit on a limited basis.

31The applicant’s business was unprofitable and, consequently, the respondent’s accountant assessed the applicant’s weekly IRB entitlement to be $0.00. Moreover, the applicant failed to track his loss of work hours incurred as a result of his accident, based on section 7(2)2 of the Schedule.

32The applicant then got into his second accident and was self-employed as a rug cleaner, but his second accident caused him to stop working. Therefore, the applicant submitted that as he was working at the time of his second accident, as the preliminary issue addresses this, the applicant argued he’s entitled to an IRB.

33After considering the submissions and evidence of the parties, based on a balance of probabilities, I was more persuaded by the respondent’s submissions than the applicant’s, and find that the applicant is not entitled to an IRB for his second accident. I base myself on the fact that the applicant elected to receive an NEB in his OCF-10, as agreed upon by the parties and supported by evidence.

34When the applicant elected to receive an NEB after his second accident, section 35(3) of the Schedule applied, making the applicant’s election final and cannot simply “be changed”.

35I draw the applicant’s attention to the following wording of this section: “The applicant’s election under subsection (1) is final, regardless of any change in circumstances”.

36In this case, though the applicant submitted he ought to be entitled to an NEB, he failed to persuasively address the finality of his election, and therefore, is not entitled to an IRB in relation to the second accident.

37As the parties do not dispute the factual history of this file, I will address their legal arguments.

38I agreed with the respondent’s argument concerning section 35(1) of the Schedule and the OCF-10; The form and accompanying letter clearly stated that once an applicant elects a specified benefit, this decision is final.

39I also agreed that the Tribunal had agreed with this finding in both 17-001606 v Unifund Assurance Company¹⁷ and G. N. K. vs. Aviva Insurance Canada¹⁸, and found these decisions persuasive.

40Though I understood the applicant’s arguments about section 12(1) of the Schedule, these did not address the issue of section 35(3) of the Schedule and its finality.

41Had the applicant elected an IRB on his OCF-10 for his second accident, his arguments would be valid. However, as he elected to receive an NEB, he is bound by that decision and his arguments about section 12(1) are unpersuasive.

42Therefore, the applicant is not entitled to pursue an IRB in relation to his second accident, as he elected to receive an NEB.

20-013517/AABS – the First Accident

Income replacement benefit of $185.00 per week from November 6, 2020, to date

43The applicant submitted that he was forced to stop working after his second accident on December 6, 2019, as his injuries from his first accident were exacerbated.

44The applicant accepted that based on the IRB calculations of Great Oak VFA¹⁹, the applicant was entitled to $0.00 per week for the first 104 weeks of his accident.

45The applicant submitted that he is entitled to a post-104 IRB from November 6, 2020, to date and ongoing as a result of his first accident, and, based on section 7(2)1(ii) of the Schedule, is entitled to an IRB of $185.00 per week.

46The applicant relied on the OCF-3²⁰ of Dr. Preeya Chauhan, chiropractor, which found the following injuries on the applicant: Whiplash associated disorder- 2 (“WAD-II”) with complaint of neck pain, musculoskeletal signs, headache, post-concussion syndrome, torticollis, rotator cuff syndrome, lumbago with sciatica, and sprain/strain of the lumbar spine, sacroiliac joint, shoulder joint and toe(s). Dr. Chauhan opined that the applicant suffered a substantial inability to perform the essential tasks of his employment, with an estimated duration of 9 to 12 weeks.

47The applicant also relied on the above-mentioned OCF-3²¹ of Ms. Shah, which found that the applicant suffered a substantial inability to perform the essential tasks of his employment with an estimated duration of more than 12 weeks. Ms. Shah also noted that the applicant was unable to return to his pre-work duties due to his injuries.

48The applicant relied on the further OCF-3²² Dr. Suzanne Padhi, chiropractor, which found that the applicant suffered a substantial inability to perform the essential tasks of his employment and could not return to work on modified duties, with an estimated duration of 9 to 12 weeks. Dr. Padhi found that the applicant was unable to return to his pre-accident employment due to his injuries.

49The applicant also relied on the Psychological Assessment Report²³ of Grace Gronkowska, psychological associate, where Ms. Gronkowska diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder with predominant pain. Ms. Gronkowska also recommended that the applicant attend cognitive behavioural treatment (“CBT”) to return to normal functioning.

50The applicant also relied on the Physiatry Assessment Report²⁴ of Dr. Joseph Siu-Wah Wong, physical medicine and rehabilitation specialist, which diagnosed the applicant with: myofascial injury of the cervical spine, thoracic spine muscles, lumbar spine paraspinal muscles and upper sacral spine gluteal muscles, cervicogenic headache, post-traumatic insomnia, psychological problems, and chronic pain, and suffers a substantial inability to perform his pre-accident employment. Dr. Wong recommended that the applicant participate in a chronic pain program and be referred to a psychologist.

51The respondent submitted that the applicant is not entitled to a post-104 IRB and has not met his evidentiary onus of demonstrating this²⁵.

52The respondent argued that the applicant has confirmed his return to work after his first accident, relying on the IE report of Dr. Raymond Zabieliauskas, physical medicine and rehabilitation specialist²⁶. Based on this, the respondent submitted that as the applicant was able to return to his employment, he is not entitled to an IRB as he has not met the disability test.

53The respondent noted that the doctor found that the applicant did not suffer from a substantial inability to perform the essential tasks of his employment as a result of the accident.

54The respondent also relied on Dr. Zabieliauskas’s Addendum Report²⁷, which reviewed the applicant’s additional medical information; based on this, the doctor did not change his previous findings. The respondent noted that the applicant has not presented medical evidence to rebut these findings related to the pre-104 IRB test, and therefore, the applicant did not meet the post-104 test either.

55The respondent also submitted that as the applicant admitted he returned to work after his accident and then stopped working as a result of his second accident, the “chain of causation” was broken.

56Since the applicant has not provided evidence to support this claim that he returned to work on an intermittent, part-time basis before his second accident, I found this submission to be less than persuasive. Moreover, as noted by the respondent, this information was contradicted by the IRB calculations of Great Oak VFA²⁸ and during the applicant’s IE with Dr. Zabieliauskas.

57The respondent submitted that the applicant bears the onus of showing he is entitled to the pre-104 IRB before the Tribunal can consider the post-104 IRB²⁹. The respondent argued that the applicant has not met the pre-104 test, therefore clearly does not qualify for a post-104 IRB and therefore, the benefit is not payable.

58After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to an IRB for his first accident.

59Though I did consider the OCF-3s relied upon by the applicant, I noted that neither spoke to the applicant’s complete inability due to his second accident from November 2020 or beyond and therefore, I found them to be less persuasive with respect to the applicant’s post-104 IRBs as they did not specifically address the period in dispute. Moreover, the most recent OCF-3 of Dr. Padhi estimated the applicant’s complete inability to be 9 to 12 weeks or until approximately Tuesday, September 22, 2020, and did not speak to the period in dispute, nor did the applicant provide an updated OCF-3.

60Concerning Ms. Gronkowska’s evidence, I noted that it did not speak to the substantial or complete inability tests and rather was demonstrative that the applicant had been diagnosed with psychological injuries. Therefore, I put less weight on this evidence with respect to the post-104 test.

61I echo these comments concerning Dr. Wong’s evidence; though Dr. Wong opined that the applicant suffered a substantial inability to perform his pre-accident employment tasks, his evidence did not speak directly to the test of section 6(2)(b) of the Schedule for a post-104 IRB, which requires a complete inability to engage in any employment or self-employment for which is reasonably suited by education, training or experience.

62Instead, I agreed with the respondent’s submissions that the applicant has not met his evidentiary onus to provide persuasive medical evidence that supports that he suffers a complete inability as a result of his accident.

63I agree that Dr. Zabieliauskas’s evidence found that the applicant was able to return to work and addressed both the pre- and post-104 tests. As this evidence commented directly on the issue in dispute, I found it to be persuasive.

64I also agreed that the applicant had not provided persuasive evidence that he restarted his employment before his second accident, as this was not accounted for in the IRB calculations of Great Oak VFA³⁰ or supported by financial or affidavit evidence.

65I also agreed that because of this, the direct causation between the applicant’s injuries and his first accident cannot be established, as the applicant did not provide persuasive evidence concerning this.

66Therefore, the applicant has not met the post-104 test and is not entitled to the disputed IRB.

Applicability of the Minor Injury Guideline (“MIG”)

67The applicant also sought to be removed from the MIG due to his first accident based on having a pre-existing condition requiring treatment beyond the $3,500.00 to reach maximum medical recovery.

68The applicant relied on evidence obtained after his second accident, such as the OCF-3³¹ of Dr. Padhi, the Psychological Assessment of Ms. Gronkowska³², and the Physiatry Report³³ of Dr. Wong, and submitted that this evidence is demonstrative that the applicant’s injuries are outside of the MIG for both of his accidents and therefore, are relevant.

69The respondent submitted that this evidence is not relevant to the first accident, and therefore ought to be considered only for the second accident, as all of this evidence was commissioned in 2020, over 2 years after the applicant’s first accident.

70I agree with the respondent concerning the fact that the evidence from 2020 provides little information about the applicant’s injuries from his first accident and will limit that evidence to the applicant’s second accident.

71The applicant submitted that before his accident, he was diagnosed with carpal tunnel syndrome based on the clinical notes and records³⁴ of his neurologist, Dr. Garry Moddel.

72The applicant also submitted that he was diagnosed with mild right supraspinatus calcific tendinitis based on an ultrasound of the applicant’s right shoulder³⁵, dated October 29, 2018.

73The applicant stated that his injuries cannot be treated within the financial limits of the MIG and relied on the OCF-3 of Dr. Chauhan, which noted the injuries described above.

74The applicant also relied on the subsequent ultrasound of his left shoulder³⁶, which noted minor chronic supraspinatus tendinopathy and his ultrasound and x-ray of his pelvis and left hip³⁷, which found mild “DDD” or degenerative disk disease (“DDD”) and “early bilateral hip osteoarthritis”.

75The applicant submitted that this evidence supports the applicant’s position that he cannot reach maximum medical recovery due to his pre-existing conditions and the severity of his injuries, which do not fall within the MIG.

76The respondent submitted that the applicant has not shown that his pre-existing conditions prevent him from reaching maximum medical recovery if constrained by the MIG’s limits, as seen in the matter of 17-001856 v Travelers³⁸; in this matter, the Tribunal found that for an applicant to be removed based on section 18(2) of the Schedule: “..establishing the existence of pre-existing conditions does not end the matter nor end the analysis; there must be evidence to show that the pre-existing conditions prevent the applicant from achieving maximum recovery if confined to the MIG.”

77The respondent also directed the Tribunal’s attention to the matter of Castillo v TD Insurance Meloche Monnex³⁹, where the Tribunal found: “Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment be determined not to come within this Guideline.”

78The respondent submitted that the applicant has not provided medical evidence that comments on the applicant’s pre-existing conditions and impact on such if confined to the MIG, and therefore, has not met his evidentiary onus.

79The respondent submitted that the applicant failed to report his accident to his family doctor, Dr. Kevin Graham and no accident-related injuries or diagnoses were made⁴⁰.

80The respondent also pointed to Dr. Zabieliauskas’s IE⁴¹, where he found that the applicant did not have any pre-existing conditions that had been exacerbated by the accident and that the applicant’s injuries were predominantly minor and were: “at most a cervical strain WAD-I to II, bilateral shoulder strains, and a lumbosacral strain.”

81The respondent also relied on Dr. Zabieliauskas’s Addendum Report⁴², which reviewed the applicant’s additional medical information; based on this, the doctor did not change his previous findings.

82The respondent also noted that during the applicant’s IE⁴³ with Dr. Zabieliauskas, the applicant denied having pre-existing health issues and therefore, his argument regarding this should be found to be unpersuasive.

83In terms of the applicant’s DDD, the respondent noted that this was not observed or diagnosed before the applicant’s accident, and therefore, is not a basis to exclude the applicant from the MIG. The respondent relied on the matter of SSZ v Certas Direct Insurance Company⁴⁴, where the applicant also was diagnosed with DDD after their accident and the Tribunal found that DDD was an age-related condition and not related to the applicant’s accident.

84The respondent further argued that degenerative findings are typically age-related, and the applicant has not provided evidence to support otherwise, or why he should be removed from the MIG on this basis.

85The respondent also submitted that the only injury listed on the applicant’s OCF-3s that would fall outside the MIG would be the post-concussion syndrome, but as that was not confirmed by contemporaneous medical records, should be disregarded as the diagnosis was made by a chiropractor and is outside of their scope of practice.

86After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not provided persuasive evidence that his pre-existing conditions would prevent him from reaching maximum medical recovery if confined to the financial limits of the MIG.

87I accepted that the applicant was diagnosed with carpal tunnel syndrome before his accident, as this was supported by the records of Dr. Moddel. I also accepted that the applicant was diagnosed with mild, right supraspinatus calcific tendinitis based on the ultrasound the applicant provided from the day before his accident.

88I did not find OCF-3 of Dr. Chauhan persuasive of the applicant having injuries outside of the MIG beyond post-concussive symptoms. I also agreed with the respondent and find that this type of diagnosis goes beyond the purview of a chiropractor.

89I also noted in my review of the OCF-3 that Dr. Chauhan replied “unknown” if the applicant had pre-existing conditions, which I found odd.

90In terms of the applicant’s diagnosis of DDD, I also agreed with the respondent, and that said condition was not diagnosed before the accident, and therefore, is not found to be a pre-existing condition.

91I also found the matter of SSZ v Certas Direct Insurance Company⁴⁵, to be persuasive, as the circumstances and facts of these matters were similar and agree that DDD is an age-related condition. Without evidence stating otherwise, I am not convinced that this condition was caused or is related to the applicant’s first accident.

92I also find that the applicant’s early bilateral hip osteoarthritis was not diagnosed or found before the applicant’s first accident and, therefore, cannot be considered a pre-existing condition.

93As noted by the respondent, simply having a pre-existing condition is not a sufficient reason to be excluded from the MIG; rather the applicant must also show that his pre-existing conditions impact his maximum medical recovery.

94In terms of the applicant’s pre-existing conditions, I was not presented with any evidence that spoke directly to how the applicant’s conditions would impact his maximum medical recovery. Instead, the only evidence that spoke directly to this issue were the IEs of Dr. Zabieliauskas, where the applicant not only failed to mention his pre-existing conditions, but the doctor found no barriers to recovery.

95Moreover, I would have expected some clinical notes and records from the applicant’s family doctor, Dr. Graham, to comment on the applicant’s pre-existing conditions as a barrier to recovery. However, I was not presented with this.

96Therefore, the applicant has not met his onus and will not be removed from the MIG on this basis.

97With respect to the balance of the MIG remaining, as noted the Case Conference Report and Order of Adjudicator Neilson, dated March 3, 2021, the parties were ordered to provide submissions with respect to the balance of the MIG remaining in relation to the second accident.

98After reviewing the submissions and evidence of the parties, I found that the applicant has exhausted the limits of the MIG. Therefore, I do not need to consider if the treatment plans in dispute are reasonable and necessary.

Interest

99Since I have found that no benefits are payable to the applicant, no benefits are found to be outstanding, and therefore, he is not entitled to interest.

20-008111/AABS – The second Accident

Income replacement benefit from December 13, 2019, to date and quantum

100Since I have found that the applicant is not entitled to an IRB for the first accident, and the applicant elected to receive an NEB, I do not need to consider this issue, nor the issue of quantum.

Applicability of the MIG

101The applicant again submitted that he had pre-existing conditions that were exacerbated by his first accident, and then re-exacerbated by his second accident. The applicant also submitted that as a result of his second accident, he was diagnosed with psychological impairments and chronic pain. Based on this, the applicant submitted his injuries fall outside of the MIG.

102The applicant also submitted that an invoice⁴⁶ in the amount of $9,649.00 for treatment shows that the applicant has suffered an injury beyond the limits of the MIG, as he has consumed well over the $3,500.00 limit.

103The applicant also confirmed that he had exhausted the limits of the MIG⁴⁷.

104The respondent disagreed that any of the applicant’s injuries fell outside the MIG.

105With respect to the invoice in the amount of $9,649.00, the respondent submitted that this balance consists of assessments and preparation of OCF-18s and therefore has not been incurred treatment outside the MIG’s limits.

106In terms of the applicant’s arguments with respect to the consumption of treatment beyond the MIG’s limits, I agree with the respondent’s position, namely that simply having services billed that have not been incurred does not allow an applicant to escape the MIG. Therefore, this argument was not persuasive.

Does the applicant have pre-existing conditions that would prevent him from reaching maximum medical recovery if held in the MIG?

107The applicant submitted that his injuries from his first accident have prevented him from fully recovering from his second accident due to the financial limits of the MIG.

108The applicant relied on his OCF-3 from Ms. Shah⁴⁸, which stated that the applicant’s injuries from his first accident were exacerbated by his second accident.

109The applicant submitted that Ms. Shah noted injuries that were outside the MIG, including sprain and strain of the cervical, thoracic and lumbar spine, strain and sprain of unspecified parts of the knee, shoulder joint, and rotator cuff capsule, unspecified injury of the lower leg, tension-type headache, dizziness and giddiness, post-concussion syndrome and whiplash associated disorder ii (“WAD-II”) with complaints of neck pain and musculoskeletal signs.

110The applicant relied on the further OCF-3⁴⁹ Dr. Padhi, chiropractor, which found that the applicant suffered from the following injuries: sprain and strain of unspecified parts of the knee, shoulder joint, rotator cuff capsule, tension-type headache, dizziness and giddiness, post-concussive syndrome, WAD-II and sprain and strain of the cervical, thoracic and lumbar spine.

111Dr. Padhi recommended that the applicant obtain an in-home assessment, a functional abilities assessment, an attendant care assessment and if the applicant’s anxiety, nervousness, and sleep issues continue, a psychological assessment.

112The applicant also relied on an x-ray of his cervical spine⁵⁰, which found that the applicant had “straightening of the cervical spine. Small vertebral endplate osteophytes” and an x-ray of his lumbar spine⁵¹, which noted “slight L 3/4 and L4/5 intervertebral disc degenerative change.”

113The applicant also relied on the report of Dr. Wong, where the applicant reported that his pain from his first accident was worse due to his second accident. Dr. Wong opined that the applicant’s pre-existing injuries from his first accident were sufficient to remove him from the MIG.

114The respondent submitted that the applicant had not persuasively shown that his pre-existing conditions prevented him from reaching maximum medical recovery if confined to the MIG.

115The respondent argued that the applicant suffered soft-tissue injuries as a result of his second accident and relied on the clinical notes and records⁵² of Dr. Graham to support this argument.

116In terms of the OCF-3 relied upon by the applicant, the respondent submitted that the injuries by Dr. Padhi fall outside the scope of practice of a chiropractor and therefore, should be given little to no weight.

117The respondent also submitted that the findings of Ms. Shah either fall within the MIG or fall outside her scope of practice.

118The respondent argued that Dr. Wong’s findings should be given little to no weight, as the applicant’s alleged injuries are not supported by the contemporaneous clinical notes and records of his family doctor and were not noted by other medical professionals prior to the doctor’s assessment. The respondent noted that many of Dr. Wong’s diagnoses were solely based on the applicant’s self-reporting and not via testing or reviewing the applicant’s medical records.

119The respondent also submitted that Dr. Wong’s findings should be given little to no weight, as the applicant had fully recovered from his first accident before he was involved in his second accident.

120Instead, the respondent relied on a virtual physiatry assessment⁵³ conducted by Dr. Zabieliauskas in relation to his second accident. During the IE, the applicant reported driving and shopping for groceries, with complaints of stiffness in his head, neck and shoulder region. The doctor found that the applicant’s injuries were soft-tissue injuries that were predominantly minor in nature and that the applicant’s injuries from his first accident had fully healed at the time of his second injury.

121The applicant took issue with Dr. Zabieliauskas‘s virtual assessment, as he submitted that this type of assessment required the applicant to be physically examined, which was not possible.

122The applicant also submitted that Dr. Zabieliauskas‘s virtual assessment did not rely on the applicant’s clinical notes and records, and therefore, should be given little weight.

123The respondent relied on the matter of D. P. v Allstate Insurance⁵⁴, where the Tribunal found that Dr. Wong’s diagnostic conclusions were without supporting medical evidence. The respondent submitted that again, the doctor was making diagnoses without supporting medical evidence and therefore, his evidence should be given little to no weight.

124The respondent also submitted that the applicant stopped participating in physical therapy before his second accident and did not take prescriptions to address his pain, demonstrating that the applicant’s pain was not severe.

125After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not shown that his pre-existing injuries prevent him from reaching maximum medical recovery if kept in the MIG.

126In terms of Ms. Shah’s evidence, I agreed with the respondent’s argument, namely that as a physiotherapist, diagnosing injuries such as post-concussion syndrome and WAD-II go outside the purview of her scope of practice. Further, I found that Ms. Shah diagnosed injuries that fall within the MIG and therefore, did not find this evidence persuasive.

127With respect to Dr. Padhi’s evidence, I echo my previous comments, namely that diagnosing post-concussive syndrome and WAD-II also fall outside the scope of practice of a chiropractor, and therefore, these components of the doctor’s evidence were given little weight. I also found that Dr. Padhi also diagnosed the applicant with injuries that fall within the MIG.

128In terms of the applicant’s x-ray, the applicant has not provided evidence that connects his spinal changes to his accident and shows that his degenerative changes are more than age-related; therefore, I did not find this evidence persuasive.

129When considering Dr. Wong’s evidence, I agreed with the respondent’s submissions that Dr. Wong’s evidence was not supported by the evidence of the applicant’s family doctor, which I found strange. Moreover, I also agreed that it was odd that many of the issues were only diagnosed for the first time by Dr. Wong; had these issues been pre-existing, I would have expected to see them noted in the applicant’s clinical notes and records before his second accident, which was not the case.

130I was also given pause when considering Dr. Wong’s evidence considering the matter of D. P. v Allstate Insurance and agreed that this matter was similar to the current matter before the Tribunal. Similar to D.P., Dr. Wong’s findings were not supported by contemporaneous medical evidence, therefore I gave them little to no weight.

131In terms of the virtual physiatry assessment, I did not find much of this evidence relevant, as I agreed that a virtual physiatry exam was of little value without Dr. Zabieliauskas reviewing the applicant’s clinical notes and records and assessing the applicant’s physical capabilities.

132However, since the applicant did not provide any evidence beyond that discussed above that commented directly on the applicant’s pre-existing conditions and the impact of such on the applicant’s recovery if limited by the MIG, I find that the applicant has not met his evidentiary burden and his pre-existing injuries are not a basis to remove him from the MIG.

Does the applicant suffer from chronic pain?

133The applicant submits that he suffers from chronic pain, which removes him from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions.

134The applicant also relied on the aforementioned Physiatry Assessment Report⁵⁵ of Dr. Wong, which diagnosed the applicant with among other things, cervicogenic headache and chronic pain. Dr. Wong recommended that the applicant participate in a chronic pain program and be referred to a psychologist.

135The respondent submitted that Dr. Wong’s evidence should be given little to no weight, as it is not supported by corroborating evidence from the applicant’s family doctor. Instead, the respondent submitted that Dr. Wong’s diagnoses are only based on the applicant’s self-reporting.

136The respondent again relied on the matter of D. P. v Allstate Insurance⁵⁶, where the Tribunal found that Dr. Wong’s conclusions were without supporting, medical evidence. The Tribunal found that the medical records that Dr. Wong relied on did not mention chronic pain, which the respondent argued applied to the current subject matter, and therefore, little weight should be afforded to the doctor’s evidence.

137The respondent also submitted that the applicant has not shown that his accident-related pain is not more than sequelae from his accident. To this point, the respondent relied on the matter of 16-000438 v The Personal Insurance Company⁵⁷, where the Tribunal determined that for chronic pain to be considered more than sequelae from soft tissue injuries, the injury must either be chronic pain syndrome or continuous, or of severity that it causes suffering and distress with functional impairment or disability A conclusion of chronic pain without a discussion of the level of pain, its impact on the personal function of the injured person, or if the pain is bearable without treatment to show that said chronic pain is more than sequelae will not meet the applicant’s burden. The respondent submitted that the applicant has not fulfilled these obligations.

138The respondent also relied on the matter of 17-007825 v Aviva Insurance Canada⁵⁸, where the Tribunal found that chronic pain is a “severe, debilitating condition distinct from ongoing or recurring pain.”

139The respondent submitted that the applicant has not provided persuasive evidence of ongoing or recurring pain, as this pain was not captured by Dr. Graham, the applicant’s family doctor. The respondent also noted that the applicant has not provided evidence of taking prescription medication to manage his pain.

140After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not met his evidentiary onus of showing that his chronic pain requires removal from the MIG.

141I agreed with the respondent’s submissions with respect to Dr. Wong’s evidence and noted that the basis of the doctor’s diagnosis is questionable at best. As Dr. Wong appears to have diagnosed the applicant with chronic pain entirely based on his own self-reporting, I did not find this evidence to be persuasive.

142Again, I found the matter of D. P. v Allstate Insurance⁵⁹ to be persuasive, as it discussed similar facts as those of the subject matter before me, mainly Dr. Wong’s diagnosis of chronic pain not being supported by contemporaneous medical evidence. Therefore, I found the arguments related to this to be persuasive.

143I also agree that the applicant has provided limited evidence to show that his accident-related pain is more than simply sequelae, as seen in 16-000438 v The Personal Insurance Company⁶⁰. I find that the applicant has provided limited evidence that his pain is continuous or of a severity that it causes suffering and distress with a functional impairment or disability There is no discussion of the applicant’s level of pain and its impact on the applicant.

144I also agreed that the applicant’s pain complaints not being captured in the clinical notes and records of Dr. Graham is troubling.

145Therefore, for these reasons, the applicant has not proven that as a result of his accident, he suffers from chronic pain requiring removal from the MIG.

Does the applicant have psychological impairments?

146The applicant claims that he sustained psychological injuries as a result of the accident that place his claims outside of the MIG.

147Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

148The applicant relied on the Psychological Assessment Report⁶¹ of Ms. Gronkowska, psychological associate, where she diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder with predominant pain. Ms. Gronkowska also recommended that the applicant attend cognitive behavioural treatment (“CBT”) to return to normal functioning.

149The respondent submitted that little to weight should be placed on Ms. Gronkowska’s findings, as she is a psychological associate and not a psychologist. The respondent also submitted that this report was entirely based on self-reporting, with no basis in the applicant’s medical documents, which is of concern. The respondent submitted this is demonstrative of the fact that Ms. Gronkowska’s findings are purely subjective and should be given little to no weight.

150To this point, the respondent relied on the matter of Velautham v. Allstate Insurance Company⁶², where the Tribunal found that an applicant’s referral for a psychologist over 2 years-post accident without corroborating evidence did not persuasively demonstrate that the applicant suffered a psychological impairment as a result of the accident. The respondent submitted that since Ms. Gronkowska failed to consider the applicant’s medical records, her evidence should be given no weight.

151The respondent instead relied on the IE⁶³ of Dr. Joan Tucker, psychiatrist, where the doctor found that the applicant did not have any impairments as a result of his accident. The respondent noted that the applicant reported attending his gym, going shopping, attended church and was driving after his accident.

152The applicant also confirmed to Dr. Tucker that he had not reported any psychological issues to his family doctor. Dr. Tucker found that the applicant did not suffer from a psychological impairment as a result of his accident.

153The respondent also noted the inconsistency between Ms. Gronkowska’s evidence, where the applicant reported issues with concentrating and that he avoided driving, but then stated he was generally participating in his activities of daily living⁶⁴, regularly driving⁶⁵, and denied any issues with his concentration.

154The respondent submitted that the applicant has not presented corroborating evidence from his family doctor, Dr. Graham, that supports his psychological concerns or issues.

155The respondent directed the Tribunal’s attention to the matter of K. K. and Aviva General Insurance Company⁶⁶, where the Tribunal found that a psychological diagnosis must be supported by corroborating evidence.

156The respondent also relied on the matter of H. I. v Belairdirect⁶⁷, where the Tribunal found that the lack of psychological complaints of the applicant to his family doctor beyond his one referral for therapy was not persuasive that the applicant suffered a psychological impairment as a result of the accident.

157The respondent also relied on the matter of Velautham v. Allstate Insurance Company⁶⁸, where the Tribunal found that the applicant’s request for psychological services over a year after her accident without supporting evidence of psychological complaints did not demonstrate that she suffered a psychological impairment as a result of her accident. The respondent also noted that in this matter, the applicant’s own psychological report was given little weight since the assessor failed to review the applicant’s medical records.

158The respondent submitted that based on Velautham, Dr. Tucker’s evidence should be preferred over that of Ms. Gronkowska, as the doctor reviewed the applicant’s medical records, while Ms. Gronkowska did not.

159After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant did not sustain a psychological injury as a result of his accident.

160When weighing the reports of Ms. Gronkowska versus that of Dr. Tucker, I agreed with the respondent that Ms. Gronkowska’s findings were not supported by contemporaneous medical evidence from the applicant’s family doctor, which gave me pause. Moreover, when reviewing Ms. Gronkowska’s report, I noted that there were no recordings of her performing psychometric testing or validity testing, and it appears that her findings are based exclusively on the applicant’s self-reporting.

161I also found it strange that Ms. Gronkowska did not review any of the applicant’s medical records before her assessment. When comparing Ms. Gronkowska’s report to that of Dr. Tucker, who did review the applicant’s medical records, I preferred that of Dr. Tucker, based on the matter of K. K. and Aviva General Insurance Company⁶⁹, which I found to be persuasive.

162I also agreed that the applicant’s psychological complaints not being reported to his family doctor is problematic when considering the matter of H. I. v Belairdirect⁷⁰, which I also found to be persuasive, as it dealt with similar issues in dispute.

163Also, I found there to be inconsistencies in the applicant’s self-reporting when considering the limitations reported to Ms. Gronkowska in comparison to those reported to Dr. Tucker; without objective evidence supporting the applicant’s complaints, I found Ms. Gronkowska’s evidence to be less persuasive.

164Therefore, I find that the applicant has not shown that as a result of his accident, he suffers from psychological injuries.

165After reviewing the evidence and submissions of the parties, I find that the applicant has exhausted the limits of the MIG. Since I have found that the MIG’s limits were exhausted, I will not address the disputed treatment plan

Interest

166As I have found that the applicant’s injuries fall within the MIG, and no treatment is outstanding, the applicant is not entitled to interest.

CONCLUSION AND ORDER

For matter 20-013517/AABS – the First Accident:

167The applicant is not entitled to receive an income replacement benefit of $185.00 per week from November 6, 2020, to date.

168The applicant’s injuries are found to fall within the Minor Injury Guideline.

169The applicant is not entitled to interest.

For matter 20-008111/AABS – the Second Accident:

170The applicant is not entitled to an income replacement benefit given that he elected to receive a non-earner benefit.

171The applicant’s injuries are found to fall within the Minor Injury Guideline.

172The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended. (“Schedule”)
2. 2On October 30, 2018.
3. 3On December 12, 2019.
4. 4OCF-3 of Ms. Shah dated December 12, 2019.
5. 5Letter dated December 20, 2019, from the respondent to the applicant.
6. 6Ibid.
7. 7Ibid.
8. 8Letter from the respondent, dated June 1, 2020, to the applicant.
9. 9Based on the applicant’s Application for an Insured Person for Auto Insurance Dispute Resolution under the Insurance Act.
10. 10Via letter from the respondent, dated January 21, 2021, to the applicant.
11. 11Letter from the respondent, dated February 19, 2021, to the applicant.
12. 12Completed OCF-10 of the applicant, dated February 25, 2021.
13. 13Based on a letter from the respondent to the applicant, dated January 21, 2021.
14. 14See e.g., s. 36 of the previous Schedule, O. Reg 403/96
15. 1517-001606 v Unifund Assurance Company, 2017 CanLII 148400 (ON LAT) at para. 18.
16. 16G. N. K. vs. Aviva Insurance Canada, 2020 CanLII 30408 (ON LAT) at para. 35.
17. 1717-001606 v Unifund Assurance Company, 2017 CanLII 148400 (ON LAT) at para. 18.
18. 18G. N. K. vs. Aviva Insurance Canada, 2020 CanLII 30408 (ON LAT) at para. 35.
19. 19SABS Section 7(4) Accounting Report RE: Mr. Delroy Lewis dated March 28, 2019.
20. 20OCF-3 of Dr. Chauhan dated November 2, 2018.
21. 21OCF-3 of Ms. Shah dated December 12, 2019.
22. 22OCF-3 of Dr. Padhi dated June 30, 2020.
23. 23Initial Psychological Assessment of Dr. Gronkowska dated August 30, 2020.
24. 24Physiatry Assessment Report of Dr. Wong dated November 13, 2020.
25. 25Based on Z.X.C. v Belair Insurance, 2020 CanLII 37656 (ON LAT) at para. 11.
26. 26Physiatry Assessment of Dr. Zabieliauskas dated May 27, 2019.
27. 27Addendum of Dr. Zabieliauskas dated June 20, 2019.
28. 28SABS Section 7(4) Accounting Report RE: Mr. Delroy Lewis dated March 28, 2019.
29. 29Based on section 5(1) of the Schedule.
30. 30SABS Section 7(4) Accounting Report RE: Mr. Delroy Lewis dated March 28, 2019.
31. 31OCF-3 of Dr. Padhi dated June 30, 2020.
32. 32Psychological Assessment Report of Ms. Gronkowska dated August 30, 2020.
33. 33Physiatry Assessment Report of Dr. Wong dated November 13, 2020.
34. 34Opinion Letter of Dr. Moddel dated September 26, 2017.
35. 35Premier Diagnosis Network – Bellsmere X-Ray Ultrasound and BMB report dated October 29, 2018.
36. 36Premier Diagnosis Network – Bellsmere X-Ray Ultrasound and BMB report dated December 23, 2018.
37. 37Premier Diagnosis Network – Bellsmere X-Ray Ultrasound and BMB report dated December 23, 2018.
38. 3817-001856 v Travelers, 2018 CanLII 13173 (ON LAT) at paras. 34-35,
39. 39Castillo v TD Insurance Meloche Monnex, 2020 CanLII 80276 (ON LAT), para. 15,
40. 40Clinical notes and records of Dr. Graham dated October 31 and December 20, 2018.
41. 41Physiatry Assessment of Dr. Zabieliauskas dated May 27, 2019.
42. 42Addendum of Dr. Zabieliauskas dated June 20, 2019.
43. 43Physiatry Assessment of Dr. Zabieliauskas dated May 27, 2019.
44. 44SSZ v Certas Direct Insurance Company, 2019 CanLII 119746 (ON LAT) at paras. 16, 17 and 23.
45. 45SSZ v Certas Direct Insurance Company, 2019 CanLII 119746 (ON LAT) at paras. 16, 17 and 23.
46. 46Billing statement from Scarborough Physiotherapy and Rehabilitation Centre dated June 29, 2021.
47. 47Page 17 of the applicant’s submissions.
48. 48OCF-3 of Dr. Shah dated December 12, 2019.
49. 49OCF-3 of Dr. Padhi dated June 30, 2020.
50. 50Premier Diagnosis Network – Bellsmere X-Ray Ultrasound and BMB report dated December 12, 2019.
51. 51Premier Diagnosis Network – Bellsmere X-Ray Ultrasound and BMB report dated December 12, 2019.
52. 52Clinical notes and records of Dr. Graham dated October 31 and December 20, 2018.
53. 53Virtual Physiatry Assessment of Dr. Zabieliauskas dated May 25, 2020.
54. 54D. P. v Allstate Insurance, 2019 CanLII 130374 (ON LAT) at para. 12 (viii).
55. 55Physiatry Assessment Report of Dr. Wong dated November 13, 2020.
56. 56D. P. v Allstate Insurance, 2019 CanLII 130374 (ON LAT) at para. 12 (viii).
57. 5716-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 28.
58. 5817-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at para. 6.
59. 59D. P. v Allstate Insurance, 2019 CanLII 130374 (ON LAT) at para. 12 (viii).
60. 6016-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 28.
61. 61Initial Psychological Assessment of Dr. Gronkowska dated August 30, 2020.
62. 62Velautham v. Allstate Insurance Company, 2021 CanLII 19429 (ON LAT) at paras. 19-22.
63. 63Insurer Examination – Independent Psychiatry Evaluation authored by Dr. Tucker dated November 25, 2020.
64. 64Ibid.
65. 65Virtual Physiatry Assessment of Dr. Zabieliauskas dated May 25, 2020.
66. 66K. K. and Aviva General Insurance Company, 2020 CanLII 12739 (ON LAT) at para. 11.
67. 67H. I. v Belairdirect, 2020 CanLII 69930 (ON LAT) at para. 20.
68. 68Velautham v. Allstate Insurance Company, 2021 CanLII 19429 (ON LAT) at paras. 19-22.
69. 69K. K. and Aviva General Insurance Company, 2020 CanLII 12739 (ON LAT) at para. 11.
70. 70H. I. v Belairdirect, 2020 CanLII 69930 (ON LAT) at para. 20.