Lanziner-Brackett v. Intact Insurance Company, 2022 CanLII 38847

Citation: Lanziner-Brackett v. Intact Insurance Company, 2022 ONLAT 20-003674/AABS

Licence Appeal Tribunal File Number: 20-003674/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:

Lianne Lanziner-Brackett

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Asad Ali Moten

APPEARANCES:

For the Applicant:

Peter Cimino, Counsel

For the Respondent:

Patrick Baker, Counsel

HEARD:

By way of written submissions

BACKGROUND

1Commonly, cases before the Licence Appeal Tribunal (the Tribunal) involve automobile collisions. This is not one of those cases. The applicant was involved in an incident at a taxi-stand on November 25, 2014. She seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). This Tribunal has previously adjudicated that the incident occurred in two phases – the ‘accident’ phase, and the ‘assault’ phase. Only the applicant’s injuries in the accident phase can be the subject of a claim for medical benefits under the Schedule.

2At issue between the parties are the applicant’s claims for various medical benefits. The applicant’s claims to the insurer were denied, and she now appeals to the Tribunal for resolution of these claims. The applicant argues that she is entitled to the proposed treatment plan and chronic pain assessment because they are reasonable and necessary for the treatment of her injuries.

3The respondent insurer, Intact Insurance Company, disagrees. It argues that the applicant’s claims are res judicata, and in any event are not reasonable and necessary.

ISSUES

4The issues to be decided are:

a. Is the applicant entitled to $3,396.53 for occupational therapy services proposed by Joanne Romas in a treatment plan/OCF-18 dated July 25, 2017?

b. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Mediheh Moslehi in a treatment plan dated July 6, 2017?

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

5I note that the issues above differ slightly from those recorded in the case conference report and order (“CCRO”), dated March 26, 2021. The issues as recorded in the CCRO contained incorrect details about the treatment plans in dispute. The parties have noted the correct details about the issues in dispute in their respective submissions.

RESULT

6I find that, for the reasons below, the applicant has not met her onus to demonstrate that the proposed treatment plan and chronic pain assessment are reasonable and necessary to treat the applicant’s injuries as suffered in the accident phase of the incident. She is, therefore, not entitled to the medical benefits she claims, and is not entitled to any interest on overdue payments.

EVIDENCE

7The applicant was working as part of a television production crew. Her role was to monitor parking spaces used by the production. On November 25, 2014, a vehicle pulled into a parking space monitored by the applicant. She approached the vehicle to advise the driver that the vehicle needed to be moved. The driver opened his door, striking the applicant at least twice with his door. He then got out of his car and struck the applicant in the face three times.

8The matter before the Tribunal is with respect to the injuries the applicant may have suffered when struck with the car door. In a previous decision (the “Decision”) the second phase of the incident (i.e., the assault by the driver) was determined by this Tribunal to not constitute an accident as defined by the Schedule.¹ The facts, as found by the Tribunal, do not appear to have been challenged by either party on reconsideration or appeal.

9As a result of being struck with the car door, the applicant suffered injuries to her left knee and forearms. Clinical notes of the applicant’s family physician indicate that in mid-2015 she was experiencing left knee pain. Her physician suspected chondromalacia with crepitus and prescribed her medication.

10In mid-2016 the applicant fell on her left knee – the same knee which was injured in the accident. A tear was suspected. By September 2016, her physician had noted worsening left knee pain, and an ultrasound confirmed a small knee effusion with fluid at the medial retinaculum.

11In September 2017, the applicant underwent a neurology evaluation, where she described her symptoms to include, among other things, left knee pain and right elbow weakness. At a chronic pain assessment, the next day, the applicant complained of right arm pain and left knee weakness.

12The applicant’s chiropractor completed an OCF-18 treatment and assessment plan on July 6, 2017, and the applicant’s occupational therapist completed an OCF-18 treatment and assessment plan on July 25, 2017.

13On January 29, 2018, the applicant underwent a section 44 examination to consider her injuries in light of both OCF-18s. The applicant described her elbow pain level as 4/10 and her knee pain level as 2/10, both intermittently. The pain in both her elbow and her knee is aggravated by prolonged use.

14The examination did not reveal a significant objective functional impairment related to the accident that would require occupational therapy, though the assessing physician did recommend physical therapy and an MRI of the applicant’s left knee, noting that, until that point, the applicant had not received any physical therapy or rehabilitation.

ANALYSIS

15Section 15(1) of the Schedule creates a liability on the part of insurers to pay for “all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for…” among other things, medical, chiropractic, and psychological services, assistive devices, and other goods and services of a medical nature that are essential for the treatment of the insured person.

16The onus is on the applicant to demonstrate, on a balance of probabilities, that all the treatments in dispute are reasonable and necessary.² This requires the applicant to demonstrate that the impairment for which the treatment is sought was sustained as a result of the accident. The causation test to be applied is the “but for” test.³

17Next, the applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.⁴

18In this case, the Tribunal has already decided that the second phase of the incident is not part of the ‘accident’. The injuries she sustained as a result from the second phase cannot be the basis of a claim under the Schedule.

19In other words, the Tribunal’s decision herein is with respect to whether the proposed treatment plans are reasonable and necessary for the applicant’s alleged injuries to her left knee and forearms.

20I pause here to address an argument raised by the respondent. The respondent argues that the Decision renders the issues raised in this written hearing res judicata. Specifically, the respondent argues that: (a) the Decision found that the applicant’s injuries to her knee and forearms had resolved; and (b) the physical and psychological injuries of which the applicant complains are the consequence of the second phase, or the assault phase, of the incident.

21The respondent has not provided me with any authority to support this proposition, and the applicant has not addressed the issue through reply. Nonetheless, I will consider the respondent’s argument.

22With respect to part (b) of the respondent’s argument, I agree in part. Insofar as an injury can be reasonably attributed to the second phase of the incident, it is not a consequence of the accident, and the applicant is not entitled to a treatment plan for it. The Tribunal, via the Decision, has determined the issue of whether the second phase was an ‘accident’ and the facts that support that finding. But the Tribunal must determine which injuries can be attributed to the accident phase of the incident, and which injuries, if any, cannot. This is because, despite the Decision’s findings of fact, the central question in the Decision was about whether the incident fell within the Schedule, and not about what injuries resulted therefrom.

23With respect to part (a) of the respondent’s argument, the same notion applies. As it pertains to the applicant’s injuries to her left knee and forearms, the Decision included a finding that “[h]er physical injuries have now resolved.”⁵ This is the extent to which the Decision addresses the applicant’s injuries from the first phase of the incident.

24This Tribunal has held that “…res judicata operates to preclude a party from re-litigating issues…which have been resolved by a final judgment on the merits by a court or tribunal of competent jurisdiction.”⁶ There are four generally accepted pre-requisites to a finding of res judicata:⁷

a. The two actions must involve the same parties;

b. The claim sought to be asserted must have been within the prior court’s jurisdiction;

c. Prior adjudication must have been on the merits; and,

d. The prior decision must have been a final judgment.

25In other words, where two courts are asked to decide the same question (i.e., make a finding of a material fact), and the first decision is final (as it is in this case), and the parties or their privies to the dispute are the same (as they are here), the second court should not re-visit the material fact findings of the first.

26In this case, however, the Decision did not make findings of fact about the applicant’s injuries that were material to the issue before it. The question in the Decision was simply whether the second phase of the incident was an ‘accident’ under the Schedule. If the findings of fact in the Decision with respect to the injuries the applicant suffered were excised, the Decision would not be any different in its analysis. In other words, the nature or extent of the injuries did not bear upon the Tribunal’s determination in the Decision as to whether they were caused by the second phase of the incident.

27Even if, however, I am wrong in my analysis with respect to res judicata, I would still exercise my residual discretion to not apply the doctrine of res judicata, as to do so would create an injustice.⁸ Applying res judicata in this case would prematurely bring to an end the applicant’s claim to the Tribunal, even for injuries suffered in the first phase of the incident.

28I find, therefore, that the doctrine of res judicata does not apply. The applicant’s claim, insofar as it pertains to injuries suffered as a result of the first phase of the incident, shall be considered.

a. Is the applicant entitled to $3,396.53 for occupational therapy services proposed by Joanne Romas in a treatment plan/OCF-18 dated July 25, 2017?

29I find that the applicant is not entitled to the benefits proposed in the treatment plan.

30The treatment plan identifies a number of injuries, but, as discussed above, only pain in the left knee and forearms can reasonably be attributed to the accident. The treatment plan also describes the applicant has having “sustained bilateral forearm, right elbow and left knee pain, as well as experiencing depression, sleep, headaches, dizziness, memory, concentration, and breathing difficulties, which have impacted on her ability to perform her personal care tasks and activities of daily living.”

31The treatment plan proposes sessions of therapy, cognition, and learning, as well as ancillary services related to that modality, such as documentation and provider travel.

32The treatment plan does not consider that, in the intervening period between the accident and the treatment plan, the applicant suffered another injury to her left knee. In fact, the question on the OCF-18 with respect to injuries since the accident is answered in the negative. As a result, the Tribunal cannot conclude that the proposed treatment plan will assist rehabilitating injuries the applicant suffered as a result of the accident.

33Further, the goal of the treatment plan is to “resume independence in the performance of her personal care tasks and activities of daily living.” The difficulty is that there is insufficient evidence to suggest that that the injuries sustained in the first phase of the incident (i.e., the accident) have hindered her independence or daily activities in any way. In fact, during the section 44 examination, the applicant reported being independent and able to perform her own household chores and personal care tasks.

34While Dr. Karmy’s chronic pain assessment from 2017 indicates that the applicant has difficulty with household tasks, there is no indication which of her injuries, or what combination thereof, was causing this difficulty. Further, in Dr. Karmy’s assessment, the applicant assigned out-of-ten values to the pain levels of each of her injuries. It is of note that among the lowest values are ascribed to her knee and elbow injuries. As a result, on a balance of probabilities, I cannot conclude that any difficulties in her daily living tasks that she is experiencing are because of her knee and elbow injuries.

35While the section 44 examination concluded that the applicant’s prognosis is guarded, this must be weighed against the examining physician’s recommendation that the applicant receive some physical therapy so that she can surpass what appears, at this stage, to be her maximal recovery.

36The applicant’s neurological examination does not opine on the applicant’s potential to recovery from the injuries to her knee and elbow.

37In sum, there is insufficient evidence to connect the applicant’s injuries from the accident to difficulties in her independence and daily living tasks and then consequently to the proposed treatment plan. Therefore, I find that the applicant has not satisfied her onus to demonstrate, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary, and is therefore not entitled to the proposed treatment plan.

b. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Mediheh Moslehi in a treatment plan dated July 6, 2017?

38I find that the applicant has not satisfied her onus to prove that she is entitled to the proposed assessment.

39The proposed assessment plan looks to assess the applicant’s chronic pain from all of her injuries, including those she suffered as a result of the accident. The respondent denied the proposed treatment plan on the basis that the applicant had not, as of then, undergone physical therapy, and that a chronic pain assessment was premature.

40Again, it was not known to the chiropractor completing the OCF-18 that the applicant had suffered an injury since the accident. We know however, that she did, to the very knee for which she now seeks treatment.

41The proposed treatment plan is predicated on the understanding that the applicant has not responded well to treatment modalities for her knee and elbow injuries. But it is not apparent what treatments the applicant tried. On the contrary, the applicant reported to the physician conducting the section 44 examination that she had not received any physical therapy. There is nothing in any of the physicians’ notes to indicate that the applicant has attended any form of physical therapy or rehabilitation, let alone what success she has experienced with any such modalities.

42Without any physical therapy to try and improve the applicant’s strength and mobility, the premise for the proposed chronic pain assessment does not exist. It is therefore not reasonable or necessary.

43The case law the applicant points to in support of a chronic pain assessment is not assistive. In 17-005825 v. Aviva Canada Inc.⁹, the Tribunal noted that a chronic pain assessment was warranted, in part because the applicant in that case benefitted from periods of physical therapy. There was a diagnosis of chronic pain syndrome by the family physician, who also prescribed physio and treatment to help manage the pain and symptoms. The applicant in that case followed through on that prescription. The current case is distinguishable because the applicant has not undergone any physical therapy.

44In sum, I find that the applicant has not satisfied her onus to demonstrate, on a balance of probabilities, that the proposed assessment plan is reasonable and necessary, and is therefore not entitled to the proposed assessment plan.

c. Is the applicant entitled to interest on the claimed benefits?

45In light of my findings above, I conclude that the applicant is not entitled to any interest payments.

ORDER

46For the reasons above, I find that the applicant has not met her onus to establish, on a balance of probabilities, that the proposed treatment and assessment plans are reasonable and necessary. The applicant’s application is dismissed.

Footnotes

1. 1LLB v. Intact Insurance Company 2020 CanLII 95904 (ONLAT).
2. 2Scarlett v Belair Insurance, 2015 ONSC 3635 at para 24.
3. 3Sabadash v. State Farm et al., 2019 ONSC 1121 at para 31.
4. 4See, for e.g., 17-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT) at para 15.; 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, at para 24.
5. 5LLB, at para. 12.
6. 617-006816 v. Co-operators General Insurance Company 2017 CanLII 81577, para. 13.
7. 7Ibid, para. 14.
8. 8Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44 at paras. 62-63.
9. 92018 CanLII 98285.