Gillis v. Economical Insurance Company, 2022 ONLAT 20-008484/AABS

Licence Appeal Tribunal File Number: 20-008484/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:

Albert Gillis

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Yousef Jabbour, Counsel

For the Respondent: Suhasha Hewagama, Counsel

HEARD: By Way of Written Submissions

Background

1The applicant was involved in an automobile accident on May 24, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

Issues

2The following issues are to be decided:

a. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the MIG?

b. Is the applicant entitled to an income replacement benefit of $400 per week from May 31, 2018 to date and ongoing?

c. Is the applicant entitled to $313.75 ($1,296.75 less approved $983) for physiotherapy proposed by Rouge Valley Physio in a treatment plan (OCF-18) dated October 3, 2019?

d. Is the applicant entitled to $2,460 for an orthopaedic assessment proposed by Elite Specialist Group in an OCF-18 dated August 29, 2019?

e. Is the applicant entitled to $2,460 for a psychological assessment proposed by Elite Specialist Group in an OCF-18 dated August 28, 2019?

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

Result

3I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable;

c. The applicant is entitled to income replacement benefits for a 12-week period between August 23, 2018 and November 15, 2018 so long as the applicant provides the respondent with information related to his self-employment including records of sales and expenses, GST/HST returns, personal tax returns, financial statements, and corporate tax returns within 7 days of issuing this order; and

d. The applicant is not entitled to interest.

Background and Positions

4At the time of his accident, the applicant was employed as a long-haul truck driver, and he has returned to work since the accident.

5The applicant submits that as a result of his accident, his injuries ought to be found outside the minor injury guideline (“MIG”) and that he is entitled to an income replacement benefit (“IRB”), the disputed treatment plans and interest.

6The respondent submits that the applicant’s injuries fall within the MIG and that he is not entitled to an IRB, the disputed treatment plans or interest.

7For the reasons outlined below, I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG, and the applicant failed to prove entitlement to the income replacement benefit.

Minor Injury Guideline (The "MIG")

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

10An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in section 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11It is the applicant’s burden² to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

Did the applicant suffer physical injuries that warrant the removal from the MIG?

12Neither party disputes that the applicant suffered soft tissue injuries in the accident.

13The applicant submits that he suffers from ongoing pain as the accident exacerbated his pre-existing back injury.

14The respondent submits that the applicant’s injuries are minor. The respondent relies on the ambulance report, emergency record and the clinical notes and records of the applicant’s family physicians. This evidence provides no indication of any injury besides soft tissue sprains and strains.

15Both the ambulance report and the emergency record arising from the applicant’s immediate treatment³ reference to soft tissue.

16When reviewing the clinical notes and records⁴ (“CNRs”) of Dr. Ah Now and Dr. Atef Tanious, family physicians, I noted the doctors provide no indication of any accident-related complaints aside from soft tissue sprains and strains.

17Lastly, Dr. David Santone, orthopaedic surgeon, opined⁵ that the applicant suffered a myofascial strain of the cervical spine and lumbar spine.

18These injuries fall squarely within the definition of a minor injury as defined by section 3(1) of the Schedule and therefore, I find that the applicant’s physical injuries do not warrant a removal from the MIG.

19However, the applicant submits he suffers from a pre-existing injury and chronic pain, which removes him from the treatment limits of the MIG.

Does the applicant have a previously documented pre-existing medical condition?

20I find that the applicant failed to provide evidence to demonstrate that his pre-existing back pain prevents him from achieving maximal recovery within the MIG.

21Section 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 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements in order to be removed from the MIG:

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

b. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

22The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude an applicant’s impairment from the MIG; rather, it must be shown to prevent maximal recovery within the cap imposed by the MIG.

23The applicant relies on his pre-existing back injury for which he underwent a lumbar spine x-ray in 2015⁶, and back surgery in 1995 submitting that he has since had regular flares ups. The applicant submits that the accident aggravated this pre-existing back injury.

24It is accepted by both parties that the applicant underwent back surgery in 1995 and a lumbar spine x-ray in 2015 which revealed degenerative changes.

25The respondent submits that since June 12, 2015, until the time of the accident, there are no reports of on-going back complaints by the applicant in the CNRs from the applicant’s medical professionals.

26The respondent cites 16-001517 v. Royal SunAlliance Insurance⁷ which states that “the presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate that the pre-existing condition prevents him from achieving maximal recovery within the MIG.”

27Based on this, the respondent submits that the applicant has not met the onus and therefore, should not escape the MIG on this basis.

28I find that there is no compelling evidence of a previously documented pre-existing medical condition that requires removal from the MIG on the basis of preventing maximum medical recovery. There were no opinions contained in the applicant’s CNRs that specifically addressed this, despite being supported by many medical professionals.

29I find that the applicant has not shown that his pre-existing condition prevents him from reaching maximal recovery within the cap imposed by the MIG.

Chronic Pain

30For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

31Neither party referenced the six criteria laid out in the American Medical Association Guides⁸ (“AMA Guides”). The AMA Guides’ provisions relating to chronic pain are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims.

32The applicant relies on the matter of 16-000438 v The Personal Insurance Company⁹ which provides that it is not ongoing pain alone that takes an applicant out of the MIG, but rather it must be accommodated by some functional impairment.

33The applicant submits that he continues to suffer from the injuries sustained in the accident including; chronic headaches, pain and stiffness in the neck and back, which have had a significant impact on all facets of his normal life including physical, emotional and cognitive spheres.

34Furthermore, the applicant relies on the CNRs¹⁰ of Dr. Ah Now and Dr. Tanious, his primary care physicians, to support his ongoing pain complains from the time of the accident until present.

35On August 23, 2018, Dr. Ah Now submitted a disability certificate¹¹ (“OCF-3”) on behalf of the applicant describing his injuries as suffering from cervical and lumbar strain injuries and as a result of these injuries he is unable to perform the housekeeping services and suffers an inability to carry on normal life, with an anticipated duration of 9-12 weeks.

36On October 3, 2019, Dr. Santone completed an Orthopedic Assessment¹², which found that the applicant has a chronic myofascial strain of the cervical spine and lumbar spine. The assessment notes that the applicant is back to work driving a truck.

37The respondent submits that ongoing pain alone does not remove the applicant from the MIG, but rather pain causing a demonstratable, functional impairment; in this case, the applicant has not provided credible medical evidence to support that he suffers from any functional impairment related to ongoing pain. The respondent did not complete an insurer’s examination.

38When highlighting gaps in the applicant’s medical reporting specifically that the applicant only made 5 visits to his family doctor in 2018 regarding accident-related complaints, the respondent relies on the matter of A.A. v. Unifund Assurance Company¹³, where the Tribunal found that significant gaps in treatment and reporting of pain mitigates against a finding of chronic pain.

39I am not satisfied that the applicant has demonstrated a functional impairment as a result of his alleged chronic pain. Although there has been reference to chronic pain by Dr. Santone, absent a medical diagnosis of chronic pain, there must still be evidence of a functional impairment.

40Though Dr. Santone makes references to the applicant’s reduced range of motion and pain limits, the doctor does not outline what reduced limitations exist. Moreover, I found it odd that the applicant has not reported any functional limitations or impairments to his family physician.

41Given the evidence before me, I have been provided some self-reporting evidence that the applicant’s daily activities have been interfered with.

42However, there is also evidence that the applicant has returned to work, and there is no reference to a caregiver to assist the applicant with self-care tasks. I have been provided no evidence of an over-reliance on prescription medication, excessive dependence on health care providers, spouse or family.

43I am also persuaded by the gap in the applicant’s medical and treatment appointments. While I am not bound by the decisions of my colleagues, I find the A.A. v. Unifund Assurance Company¹⁴ decision persuasive and I see no reason to depart from its finding; indeed, I apply A.A. to this applicant’s case.

44For all the above reasons, the applicant has not met his onus in proving on a balance of probabilities that his accident impairments do not fit within the MIG.

Did the applicant suffer psychological impairments that justify the removal from the MIG?

45An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.

46In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

47The applicant does not rely on any medical evidence, but rather self-reports in his submissions that his pain is preventing him from getting a full night’s rest which has an impact on his psychological well being prohibiting achieving maximum recovery.

48The respondent highlights that the applicant did not submit any medical evidence to show that he had sustained a psychological impairment as a result of the accident.

49The respondent cites Gong v. Unifund Assurance Co¹⁵ where it was found that the applicant’s injuries were minor, in part because the applicant’s family doctor’s notes contained no mention of accident-related psychological or emotional complaints.

50After considering the evidence and submissions from the parties, based on a balance of probabilities I find that the applicant has not met his evidentiary onus to demonstrate that he suffers from a psychological impairment as a result of the accident

51After reviewing the applicant’s medical evidence, I am particularly persuaded that the medical evidence submitted by the applicant, including the CNRs of Dr. Ah Now and Dr. Tanious, make no mention of psychological or emotional complaints by the applicant following the accident.

52I am persuaded by the similarities of the matter before me and the finding in Gong v. Unifund Assurance Co.¹⁶ Based on the evidence before me, I apply Gong and reach the same finding regarding this applicant.

53Consequently, I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG.

The Disputed Treatment Plans

54Since the parties agree that the applicant has exhausted the limits of the MIG, I do not need to consider if the disputed treatment plans are reasonable and necessary.

Income Replacement Benefit

55Section 5 of the Schedule sets out the criteria for entitlement to an income replacement benefit (“IRB”). To be eligible, an insured person must suffer a substantial inability to perform the essential tasks of their employment. The applicant¹⁷ bears the onus of proving entitlement to an IRB on a balance of probabilities.

56Section 6 of the Schedule sets out that an insurer is not required to pay a benefit after the first 104 weeks of disability, unless, as a result of the accident, an insured person suffers a complete inability to engage in any employment.

57The applicant submits that he is entitled to an IRB in the amount of $400.00 per week for the period of May 31, 2018, to date and on-going. The applicant is unable to confirm the total amount requested from the respondent as the amount is in dispute pending the filing of his tax returns and a proper calculation. The respondent submits that the applicant has failed to comply with Schedule and cannot proceed with his applicant.

58It is the applicant’s position that the evidence he provided establishes that at the time of the accident he was a long-haul truck driver. Following the accident and due to his injuries, he was unable to return to his job. The applicant relies on the OCF-3 prepared by Dr. Ah Now on August 23, 2018.

59The OCF-3 prepared by Dr. Ah Now opined that the applicant suffered an injury causing him an inability to return to his pre-accident employment. However, the respondent provided that the duration of the disability referenced by Dr. Ah Now¹⁸ was limited to 9-12 weeks or, at the latest, ending November 15, 2018.

60An OCF-3 on its own is not a complete application for an IRB. Sections 32 and 36 of the Schedule require an application for an IRB to be also submitted to the insurer. Given that the duration of the disability according to Dr. Ah Now’s OCF-3 was to end November 15, 2018, and the applicant’s claim for an ongoing IRB, pursuant to section 37(1)(a) of the Schedule, the respondent requested the applicant to submit an updated OCF-3 by July 29, 2019, to determine whether the applicant continues to be entitled to IRB.

61The applicant had failed to submit a new OCF-3 by September 16, 2019, prompting the respondent to follow up on the request for an updated OCF-3, with a submission deadline of October 11, 2019. To date, for almost 2 years the applicant failed to submit a new OCF-3.

62The applicant’s submissions were silent on this matter and did not address why he failed to provide an updated OCF-3, nor acknowledge that there was an outstanding request from the respondent.

63Section 33(1) of the Schedule provides that an insured person within 10 business days of receiving a request from the insurer shall provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

64Section 37(1)(a) of the Schedule provides that an insurer may request that the insured person submit within 15 business days a new OCF-3, to determine whether the insured person is still entitled to a specific benefit. Section 37(2)(a) provides that an insurer shall not discontinue paying a specified benefit to an insured person unless the insured person fails or refuses to submit a completed OCF-3 if requested to do so by the insurer. Section 37(3) states that a failure to submit a completed OCF-3 when requested results in the specified benefit not being payable for the period beginning on the 15th business day after the insured person receives the request and ending the day that the insurer receives the requested OCF-3.

65In this case, I find that the applicant failed to comply with sections 33 and 37 of the Schedule because the applicant failed to provide an updated OCF-3 as requested by the respondent.

66Section 34 of the Schedule provides that a person’s failure to comply with a time limit set out in the Schedule does not disentitle the person to a benefit if the person has a reasonable explanation. The evidence and the submissions contain no reasons as to why the applicant failed to comply with the time limit. Therefore, the applicant is barred from proceeding with his claim for an IRB beyond July 29, 2019, as he failed to provide an updated OCF-3 and failed to provide a reasonable explanation.

67I am persuaded that the applicant is entitled to IRB for 12 weeks starting August 23, 2018 until November 15, 2018. However, absent information submitted by the applicant to the respondent to assess the IRB for this 12-week period, the applicant’s request for benefits is at an impasse.

68The calculation of an IRB to which an insured is entitled is set out in section 7 of the Schedule. The amount of a benefit is equal to 70% of the insured person’s pre-accident gross weekly income up to a maximum of $400.00.

69To date, the applicant has not submitted income information for the time of the accident. The respondent requested¹⁹ information related to his self-employment including records of sales and expenses, GST/HST returns, personal tax returns, financial statements, and corporate tax returns. The respondent submits that the applicant did not reply. This information is required to satisfy section 7.

70I note that the respondent requested the information again²⁰ on October 3, 2018, which the respondent, again, submits the applicant failed to reply to.

71The applicant did not specifically address the issue of why he failed to provide documents to the respondent to assist it in calculating the applicant’s quantum of IRB. The applicant failed to explain why he chose not to provide the information the respondent needed to assess the amount of IRB he could be entitled to; without this information, the applicant’s request for benefits is at an impasse

72With respect to the balance of the application, meaning the IRB from November 15, 2018 onward, I am persuaded by the respondent’s arguments related to section 33 of the Schedule and therefore the respondent is not liable for the disputed IRB.

Interest

73Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.

Order

74The application is dismissed in part, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable;

iii. The applicant is entitled to income replacement benefits for a 12-week period between August 23, 2018, and November 15, 2018, so long as the applicant provides the respondent with information related to his self-employment including records of sales and expenses, GST/HST returns, personal tax returns, financial statements, and corporate tax returns within 7 days of issuing this order; and

iv. The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Ambulance Call report dated May 24, 2018, and emergency room CNRs from James Potters Memorial Hospital, dated May 24, 2018.
4. 4CNRs of Dr. Ah Now and Dr. Tanious, June, August, September, December 2018.
5. 5Orthopedic Assessment by Dr. Santone, dated October 3, 2019.
6. 6X-ray of Lumbar Spine dated June 12, 2015.
7. 716-001517 v. Royal SunAlliance Insurance, 2017 CanLII 19203 (ON LAT) at para.25.
8. 8American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
9. 916-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para. 27.
10. 10CNRs of Dr. Ah Now and Dr. Tanious, June, August, September, December 2018.
11. 11OCF-3, dated August 23, 2018.
12. 12The CNRs of Dr. Santone were requested by the respondent but were advised that there are no notes from the assessment.
13. 13A.A. v. Unifund Assurance Company, 2019 CanLII 101493 (ON LAT).
14. 14A.A. v. Unifund Assurance Company, 2019 CanLII 101493 (ON LAT).
15. 15Gong v. Unifund Assurance Co., 2020 CanLII 101847 (ON LAT).
16. 16Gong v. Unifund Assurance Co., 2020 CanLII 101847 (ON LAT).
17. 17Scarlett v. Belair Insurance Co., 2015 ONSC 3635.
18. 18OCF-3, dated August 23, 2018.
19. 19Correspondence from respondent, dated September 19, 2018.
20. 20Correspondence from respondent, dated October 3, 2018.