Aragon v. Intact Insurance Company, 2022 CanLII 45256

Citation: Aragon v. Intact Insurance Company, 2022 ONLAT 20-004136/AABS

Licence Appeal Tribunal File Number: 20-004136/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:

Margarita Aragon

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Gabriel Pignalosa, Paralegal

For the Respondent: Nick Voight, Counsel

HEARD: By way of written submissions

OVERVIEW

[ 1 ] The applicant was involved in an automobile accident on September 13, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective-September 1, 2010 (including amendments effective June 1, 2016) (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").

[ 2 ] The applicant was the driver of a vehicle that was rear-ended by another vehicle. The airbags did not deploy, and she did not lose consciousness. The applicant was 49 years old at the time of the accident.

[ 3 ] The respondent denied the applicant's claims, including treatment for psychological services, medical services, and physiotherapy services, because it determined that all of the applicant's injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline ("the MIG").² The applicant submits her injuries fall outside of the MIG.

[ 4 ] If the applicant's position is correct, then I must address if the psychological services, medical services, and physiotherapy services, are reasonable and necessary pursuant to the Schedule.

[ 5 ] If the respondent's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to interest. The respondent also denied that the applicant was entitled to non-earner benefits.

ISSUES

[ 6 ] The following are the issues to be determined, as per the Case Conference Order of Adjudicator Watt, dated September 18, 2020:

1. Are the applicant's injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

2. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 1, 2017, to date and ongoing?

3. Is the applicant entitled to $2,164.78 for psychological services, recommended by Integral Health Group in a treatment plan ("OCF-18"), dated October 18, 2017?

4. Is the applicant entitled to $513.03 for medical services, recommended by Integral Health Group in an OCF-18 dated January 18, 2018?

5. Is the applicant entitled to $3,459.55 for medical services, recommended by Integral Health Group in an OCF-18 dated May 1, 2018?

6. Is the applicant entitled to $1,050.00 for medical services, recommended by Integral Health Group in an OCF-18 dated May 1, 2018?

7. Is the applicant entitled to $4,241.09 for physiotherapy services, recommended by Integral Health Group in an OCF-18 dated October 19, 2018?

8. Is the applicant entitled to $2,900.58 for medical services, recommended by Integral Health Group in an OCF-18, dated April 26, 2019?

9. Is the Applicant entitled to $280.00 for medical services recommended by Natucure Acupuncture in an OCF-18 dated January 25, 2018?

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

CASE CONFERENCE REPORT AND ORDER OF ADJUDICATOR WATT

[ 7 ] On January 22, 2021, the applicant's representative office sent a number of medical evidence to the Tribunal and to Jeremy Macdonald, an adjuster that attended the case conference on behalf of Intact. Counsel for the respondent had served the applicant's representative with a Declaration of Representative on December 17, 2020. The applicant was aware that the respondent had retained counsel as her submissions were addressed to him. Despite this, the applicant's representative has presented no evidence that this was served on the respondent's counsel.

[ 8 ] The applicant's representative appears to have not included all this evidence in their written submissions dated February 5, 2021. I will not be allowing the medical evidence sent to the Tribunal and Intact's adjuster on January 22, 2021, in accordance with Rule 9.4 of the Tribunal's Common Rules of Practice and Procedure ("the Rules"). Rule 9.4 sets out that a party that fails to comply with any Rules or Orders regarding disclosure or inspection of documents or things, or lists of witnesses, that party may not rely on the document or thing as evidence, or call a witness to give evidence, without the consent of the Tribunal. The applicant's representative has failed to provide me with any evidence that this documentation was served on the respondent's representative. As such, the respondent has been denied an opportunity to respond to this evidence, as the applicant's representative also chose not to include all the documentation in their submissions. For the purposes of this hearing, I will only be reviewing the evidence that was submitted with the submissions by each party.

[ 9 ] Additionally, paragraphs 5 and 8 of the Case Conference Order of Adjudicator Watt were clear that the parties shall exchange the evidence that they intend to rely upon and that the evidence would be indexed, tabbed and page and paragraph numbered. Despite this, the applicant's representative chose not to tab or page number the evidence they relied on for the purposes of this hearing. Nor did the applicant's representative pinpoint what sections of the evidence they wanted me to review.

RESULT

10I find that the applicant is not entitled to a non-earner benefit as she failed to prove that she suffered a complete inability to carry on a normal life. I also find that the applicant's injuries are within the MIG, and she is not entitled to any of the OCF-18's in dispute.

[ 11 ] The applicant is not entitled to interest on any overdue payment of benefits.

ANALYSIS

Entitlement to a Non-Earner Benefit ("NEB")

[ 12 ] The applicant has not met her onus in proving, on a balance of probabilities, that she is entitled to a non-earner benefit.

[ 13 ] Pursuant to section 12 of the Schedule, an insured person must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for a NEB. Further, s.3(7)(a) of the Schedule states that a person suffers from "a complete inability to carry on a normal life" if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

[ 14 ] The test for a NEB is outlined in Heath v. Economical Mutual Insurance Company;³

"... the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant's activities and life circumstances before the accident to his or her activities and life circumstances after the accident."

[ 15 ] Heath also holds that, in order to qualify for a NEB, the changes in an insured's life must be of such significance to continuously prevent them from engaging in substantially all activities in which they engaged before the accident.⁴

[ 16 ] The applicant submits she suffered a complete inability to carry on a normal life as a result of the accident, and that she is precluded from engaging in substantially all of the activities she engaged in before the accident. The applicant then identified the following as being the most important to her life: taking care of and spending time with her children, performing household activities, taking part in regular hobbies, and attending church. I find this to be vague. The applicant failed to identify exactly which hobbies and household activities she was unable to complete or why she could not complete them.

[ 17 ] The respondent submits that the applicant has failed to provide sufficient evidence to support her claim and to support that she is continuously prevented from engaging in substantially all activities in which she engaged in before the accident. For the reasons outlined below, I agree with the respondent.

[ 18 ] The applicant was absent from work for approximately two months, gradually returning on modified hours, before returning to full time in 2018. While I agree that simply working does not necessarily disentitle her to non-earner benefits⁵, the fact that she continues to work full time, along with engaging in the normal activities noted below, is persuasive to support that she does not meet the test for NEB. The applicant advised a number of the insurer's assessors that she has difficulty performing her workplace duties, however she failed a number of validity testing and as such I have placed little weight on this evidence. The applicant failed to produce any objective evidence to support her complaints about work performance, such as an employment file or records from a medical practitioner.

[ 19 ] The applicant advised Insurer's Examination ("IE") assessor, Dr. Sandhu, in a physician assessment report dated October 30, 2019, that prior to the accident, she did all the cooking and cleaning activities and was independent with all activities of daily living.⁶ Following the accident, she advised that she continued to be independent with all activities of daily living but that her husband and children assisted with all cooking and cleaning activities. The applicant further advised IE assessor, Dr. Ellick, in a psychological assessment report, dated November 13, 2019, that prior to the accident, she performed all household chores independently which included: cooking, cleaning, laundry duties and grocery shopping.⁷ Also in her leisure time, she attended social gatherings, went walking, coffee dates and Latin dancing at clubs. The applicant advised Dr. Ellick that she resumed some cleaning, cooking and laundry duties and receives assistance from her husband and children. She also advised that she attended church less frequently and had not resumed Latin dancing.⁸ I place little weight on this evidence as the applicant advised Dr. Sandhu that she was independent with all activities of daily living and Dr. Ellick conducted several validity testing, which the applicant failed and showed that she exaggerated her symptoms⁹.

[ 20 ] The applicant also advised Ms. Popova and Dr. Keeling during the psychological assessment report, dated September 11, 2018, that following the accident she is unable to perform most of her chores due to pain and physical limitations.¹⁰ The applicant further advised that she hardly went out and had ceased participating in most of her social and recreational activities. I place little weight on this evidence as the applicant's self reporting is inconsistent with what she advised Dr. Sandhu and Dr. Ellick and she did not provide particulars of exactly what activities she had stopped and the reasons why she was unable to participate. Also, Ms. Popova and Dr. Keeling addressed the test for income replacement benefits ("IRB") but failed to address the NEB test. I note that Ms. Popova and Dr. Keeling concluded that the applicant has undergone considerable difficulties in her everyday activities of normal life, but this is not the test for NEB. I place great weight on the fact that the report by Ms. Popova and Dr. Keeling chose to address the test for IRB rather than NEB, as this indicates to me that they believed the applicant is not entitled to NEB.

[ 21 ] I also disagree with the applicant that Dr. Bawangoanwala has noted that the applicant's accident-related symptoms have caused her to be unable to participate in her normal life. The only entry that the applicant referred to was on April 5, 2018, and despite the applicant's submissions, this entry does not state that the applicant is unable to participate in her normal life, it simply states that she has ongoing dizziness related to tiredness.¹¹

[ 22 ] The applicant further relies on a Disability Certificate ("OCF-3"), dated September 14, 2017, completed by Dr. Ciceron, physiotherapist, to demonstrate that she meets the test for NEB. While I note that the OCF-3 stated that the applicant met the test for NEB, she has failed to provide any evidence to support that she meets this test due to an accident-related impairment. The applicant's self-reporting with respect to the activities that she is unable to do following the accident is inconsistent and she has failed to provide any medical evidence to demonstrate that she is unable to complete substantially all of her pre-accident activities of daily living due to an accident-related impairment. As such, the applicant has failed to discharge her evidentiary onus and is not entitled to NEB.

The MIG

[ 23 ] I find that the applicant sustained predominately minor injuries because of this accident, and that she is also not removed from the MIG as a result of any psychological impairments.

[ 24 ] The 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 s. 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." The terms, "strain," "sprain," "subluxation," and "whiplash associated disorder" are defined in the Schedule.

[ 25 ] Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500. An applicant may receive payment for treatment beyond the $3,500.00 cap 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 a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant's evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹² The onus is also on the applicant to demonstrate that her injuries fall outside of the MIG. The applicant submits that she sustained a mild, broad-based posterior disc bulge with tiny annular tear in her lumbar spine and that this does not fit within the definition of the MIG and does not fall within the category of "clinically associated sequelae to such injuries." The respondent failed to address whether this injury fits the definition of the MIG or not.

The applicant does not suffer from an impairment that is not within the definition of the MIG

[ 26 ] I find that the applicant has failed to discharge her onus and demonstrate that a mild, broad-based posterior disc bulge with a tiny annular tear is not within the definition of the MIG.

[ 27 ] On February 14, 2018, an MRI of the lumbar spine revealed: at L5-S1, there is T2 disc signal loss compatible with disc desiccation; mild, broad-based posterior disc bulge with tiny annular tear. ¹³

[ 28 ] The applicant failed to refer to any case law that supports this conclusion. Nor has she produced any evidence that supports that these impairments were caused by the accident. The applicant failed to point me to a single entry from Dr. Bawangoanwala that supports that the disc bulge or annular tear were caused by the accident. The applicant also failed to address whether the annular tear was a partial or full tear. My job as an adjudicator is to weight all the evidence presented and when the applicant fails to provide any evidence to support their submissions, she has failed to discharge her onus to prove she is out of the MIG.

[ 29 ] The applicant further submits that she should be removed out of the MIG due to a psychological impairment. The respondent disagrees with this submission.

The applicant does not suffer from a psychological impairment as a result of this accident

[ 30 ] The applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any psychological injury from the accident.

31Psychological injuries, if established, fall outside the MIG, because the MIG only governs "minor injuries", and the prescribed definition does not include psychological impairments.

[ 32 ] The applicant relies solely on a psychological assessment completed by Ms. Popova and supervised by Dr. Keeling, dated September 11, 2018. The following procedures were administered: Trail Making (A), Rey 15-Item Test, Beck Anxiety Inventory, Beck Depression Inventory, Clinical Interview, and Feedback Interview. Ms. Popova/Dr. Keeling reviewed the clinical notes and records of Dr. Bawangoanwala, the clinical notes and records of William Osler, and the insurer's examination reports of Dr. Sandhu and Dr. Murray. The Rey 15-Item Test which is a validity measure detected no exaggeration of memory difficulties. The Beck Anxiety Inventory revealed that the applicant had severe range of anxiety and The Beck Depression Inventory revealed that she had a severe range of depression. Ms. Popova/Dr. Keeling diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, Persistent, and Specific Phobia, Situational Type (driving and passenger related) and that she should be taken outside of the MIG.¹⁴

[ 33 ] The respondent relies on two IE's reports to support their conclusion that the applicant has not suffered from a psychological impairment as a result of this accident.

[ 34 ] The first psychological assessment was conducted by Dr. Murray, dated May 2, 2018.¹⁵ The applicant failed several validity testing that was conducted objectively by Dr. Murray. The first validity test she failed, was the symptom validity testing that was conducted. The second validity test she failed, was the Structured Inventory of Malingered Symptoms ("SIMS"). The applicant's score on the SIMS was significantly elevated and she endorsed a high frequency of symptoms on SIMS which raised the suspicion of grossly exaggerated symptoms. The third validity test she failed, was the Pain Patient Profile ("P3"). The applicant's profile on P3 was invalid and could not be interpreted from a clinical perspective. The fourth validity testing the applicant failed, was the Trauma Symptom Inventory ("TSI-A"). The TSI-A contains three validity scales and eight clinical scales. The results of the TSI-A revealed that the applicant's profile was invalid and could not be interpreted from a clinical perspective.¹⁶ As a result of the applicant failing four validity testing, Dr. Murray opined that the applicant's self reported complaints were exaggerated, embellished and were not creditable. Furthermore, Dr. Murray concluded that the applicant did not meet the threshold to warrant a DSM-5 diagnosis that was clearly and directly attributable to the accident. As a result, Dr. Murray found that the applicant's impairments were within the MIG.¹⁷

[ 35 ] The second psychological assessment was conducted by Dr. Ellick, dated November 13, 2019.¹⁸ Dr. Ellick reviewed a number of documentation, including clinical notes and records and the psychological assessment report of Ms. Popova/Dr. Keeling. The applicant advised Dr. Ellick that she never met Dr. Keeling. Dr. Ellick conducted a number of validity testing which the applicant failed once again. For the Rey Memory Test, Dr. Ellick conducted a brief test of effort and the combined recall recognition component. The combined recall recognition component revealed that the applicant exhibited inadequate effort. The second validity testing, the applicant failed was the Modified Somatic Perceptions Questionnaire ("MSPQ"). The applicant's scores on the MSPQ indicated magnification of somatic perceptions and physical symptoms. The third validity testing, that the applicant failed was the Structured Inventory of Malingered Symptomatology ("SIMS"). The SIMS was the same testing that she failed when Dr. Murray conducted a psychological assessment. The results of the SIMS continued to suggest significant over-reporting and embellishment. The fourth validity testing, the applicant failed was the Pain Symptom Rating Scale. The scores on the Pain Symptom Rating Scale showed more elevated scores than 97.3% of the normative sample. As a result, Dr. Ellick opined that it was highly likely that her self-reporting of pain and pain related activity was invalid and may not represent her true level of functioning. ¹⁹

[ 36 ] As a result, Dr. Ellick opined that the applicant did not complete the psychological testing in a forthcoming manner, and she exaggerated and embellished her symptoms. Moreover, Dr. Ellick concluded that due to the serious concerns about the validity of her self-reporting, he was unable to conclude as to whether she met the criteria for a DSM-5 diagnosis as a result of the accident. ²⁰

[ 37 ] I prefer the reports of Dr. Murray and Dr. Ellick for the following reasons. Firstly, the applicant failed numerous validity testing each time she met with Dr. Murray and Dr. Ellick. Secondly, Ms. Popova/Dr. Keeling, reviewed the psychological assessment of Dr. Murray and were aware of the validity concerns at the time of their assessment. Despite this, they provided no explanation on why they did not conduct any further validity testing, other than the Rey-15 Item Test. Moreover, Ms. Popova/Dr. Keeling failed to make clear in their report whether they conducted the same detailed testing for the Rey-15 Item Test as Dr. Ellick subsequently did. Thirdly, the applicant has failed to point me to any entries from Dr. Bawangoanwala, where the applicant complained of any psychological impairments or symptoms. Fourthly, the applicant advised Dr. Ellick that she never met with Dr. Keeling who supervised the psychological assessment conducted by Ms. Popova. This raises further creditability issues with the report of Ms. Popova/Dr. Keeling and whether he was present for the assessment that he supervised.

[ 38 ] I am not satisfied on a balance of probabilities that the applicant sustained a psychological impairment that would remove her from the MIG.

[ 39 ] The applicant suggested in her submissions that the MIG limits were exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed OCF-18's because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

INTEREST

[ 40 ] As there are no benefits owing, no interest is payable.

ORDER

41For the reasons set out above, I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant sustained predominately minor injuries as defined under the Schedule;

iii. The applicant is not entitled to an OCF-18 in the amount of $2,164.78 for psychological services;

iv. The applicant is not entitled to an OCF-18 in the amount of $513.03 for medical services;

v. The applicant is not entitled to an OCF-18 in the amount of $3,459.55 for medical services;

vi. The applicant is not entitled to an OCF-18 in the amount of $1,050.00 for medical services;

vii. The applicant is not entitled to an OCF-18 in the amount of $4,241.09 for physiotherapy services;

viii. The applicant is not entitled to an OCF-18 in the amount of $2,900.58 for medical services;

ix. The applicant is not entitled to an OCF-18 in the amount of $280.00 for medical services;

x. The applicant is not entitled to interest; and

xi. The application is dismissed.

Released: May 17, 2022

__________________________

Tanjoyt Deol

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para. 50
4. 4Ibid.
5. 5Galdamez v. Allstate Insurance Company of Canada, 2012 ONCA 508.
6. 6Respondent's Submissions, Tab 1 and 6, Reports of Dr. Sandhu, dated October 30, 2019, and May 2, 2018.
7. 7Respondent's Submissions, Tab 2, Report of Ellick, dated November 13, 2019.
8. 8Ibid.
9. 9Ibid.
10. 10Applicant's Submissions, Tab 3, Psychological Report, dated September 11, 2018.
11. 11Applicant's Submissions, Tab 8, Clinical Notes and Records of Dr. Bawangoanwala.
12. 12Scarlett v. Belair, 2015 ONSC 3635 para.24 (Div. Ct.).
13. 13Applicant's Submissions, Tab 2, MRI Report, dated February 14, 2018.
14. 14Applicant's Submissions, Tab 3, Psychological Report, dated September 11, 2018.
15. 15Respondent's Submissions, Tab 7, Psychological Report of Dr. Murray, dated May 2, 2018.
16. 16Ibid, page 85.
17. 17Ibid, page 86.
18. 18Respondent's Submissions, Tab 2, Psychological Assessment of Dr. Ellick, dated November 13, 2019.
19. 19Ibid, page 36.
20. 20Ibid.