Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Citation: Clements v. Belair Direct Insurance Company, 2022 ONLAT 19-014612/AABS

Licence Appeal Tribunal File Number: 19-014612/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:

Terrell Clements

Applicant

and

Belair Direct Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Ian Little

Counsel

For the Respondent:

Leanna Zawadzki

Counsel

HEARD By Way of Videoconference

September 27 and 28, 2021

REASONS FOR DECISION AND ORDER

BACKGROUND

1Terrell Clements (“applicant”) was involved in an automobile accident on June 18, 2019 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). ¹

2BelairDirect Insurance Company (“respondent”) determined that 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 (“MIG”).² The respondent stopped paying an income replacement benefit (“IRB”) to the applicant December 24, 2019 after it determined him ineligible.

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

4The issues to be decided are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore already consumed the $3,500.00 limit and in the MIG?

ii. Is the applicant entitled to an IRB of $400.00 per week from December 24, 2019 to date and ongoing?

iii. Is the applicant entitled to $131.49 for physiotherapy services, recommended by Springbank Physiotherapy in a treatment plan (OCF-18) submitted September 17, 2019?

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

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

RESULT

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been substantially provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plan. I find that the applicant is not entitled to an IRB in the amount of $400.00 per week for the period in dispute. No award is made. No interest is payable. The application is dismissed.

LAW

MIG

6The MIG establishes a treatment framework available to an injured person who sustains 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

IRB

9An employed person’s entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment? After 104 weeks post-accident the test for eligibility for IRB changes. In order to prove entitlement to IRB post-104 weeks, s. 6(2)(b) of the Schedule provides that the applicant, as a result of the accident, must be suffering from a complete inability to engage in any employment or self employment for which the applicant is reasonably suited by education, training or experience.

10The onus is on the applicant to establish entitlement to IRB on a balance of probabilities

Medical and Rehabilitation Benefits

11Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident.

12The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Are the Applicant’s Physical Injuries in the MIG?

13I find that the applicant’s physical injuries resulting from the accident are predominantly minor injuries based on the weight of the medical evidence.

14The applicant did not receive medical attention on the day of the accident. He went to the hospital June 20, 2019 complaining of back and neck pain that had commenced the day before arising from the accident two days prior. The applicant was not taking any medication for pain. No diagnostic imaging was done. The applicant was assessed and discharged with a recommendation for physiotherapy for his neck pain.

15The applicant admitted in his testimony that from June 28, 2019 to July 10, 20019 he flew to another Province for a vacation with his young child. During this vacation he did not seek any medical care or attend any treatment.

16The July 18, 2019 OCF-3, disability certificate, made by Alex Ciorba, applicant’s physiotherapist, lists the applicant’s injuries from the accident as “WAD 2”, strain/sprain cervical spine and strain/sprain of other parts of shoulder girdle, all of which come within the MIG.

17On July 15, 2019, Dr. Birch, the applicant’s family physician, diagnosed a whiplash injury and noted the applicant had neck and shoulder pain on the left side and had severely limited range of motion of his left shoulder due to pain in his right neck and upper trapezius region. Dr. Birch’s July 30, 2019 OCF-3, disability certificate describes the applicant’s injury as “whiplash injury”. Whiplash injury is within the MIG.

18Dr. Birch’s December 22, 2019 OCF-3, disability certificate describes the applicant’s injuries as “whiplash mechanical low back pain”, indicates the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident and indicates he cannot return to work on modified hours or duties. The anticipated duration of injuries is “more than 12 weeks” with the explanation that “conditions are now chronic”. In this disability certificate Dr. Birch indicates that no further examination, investigations or consultations are contemplated or required.

19Dr. Birch wrote a letter to applicant’s legal representative May 18, 2020 in which he confirms that the applicant’s injuries are “chronic mechanical low back pain, whiplash”. Dr. Birch states that the treatment to date is physiotherapy, muscle relaxants, and anti-inflammatories. Dr. Birch opines that the applicant is out of the MIG. However, Dr. Birch writes “I am not able to assess the patient as to if he will suffer from chronic pain, as he has not been able to complete his initial physiotherapy program”.

20The applicant’s medical evidence, including the records of his treatment facility which are based largely on self-reports of pain, is insufficient to establish that the applicant sustained cervical radiculopathy or right arm neuropraxia as a result of the accident on a balance of probabilities.

21The respondent’s general practitioner, Dr. Bansal assessed the applicant and opined in December, 2019 that the applicant had sustained uncomplicated, self-resolving, soft tissue type injuries involving his neck and his physical examination contained no valid signs of musculoskeletal, orthopedic or neurological injury. Dr. Bansal also opined that there is no reason why the applicant would have a physical impairment resulting from the accident from a strictly musculoskeletal perspective. I accept the opinion of Dr. Bansal because it is thorough and is confirmed in five addendum reports.

Does the Applicant have Psychological Impairment or Chronic Pain Caused by the Accident that would Remove Him from the MIG?

22I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment or chronic pain caused by the accident justifying treatment beyond the MIG.

23Post-accident the applicant completed treatment and was transitioned into a home exercise program and reported 80% improvement in his symptoms. Subsequently the applicant had problems with his former girlfriend which resulted in his breaking her door, swinging a bat at one of her relatives and becoming involved in court proceeding as a result of which he was placed on probation and had issues with the Children’s Aid Society.

24Although the applicant submitted an OCF-18, treatment plan, in June, 2020 indicating that his injuries did not come within the MIG, had pain not elsewhere classified, depressive episode and reaction to severe stress and adjustment disorders, this treatment plan, without more, is not evidence of psychological injury resulting from the accident.

25The respondent’s psychologist Dr. Coupertherwaite assessed the applicant in October 2020 specifically with respect to the MIG and found no accident related psychological diagnosis. Dr. Coupertherwaite found that although the applicant was experiencing adjustment disorder, unspecified, cannabis dependence, mild and query cluster B personality traits versus personality disorder, these are unrelated to the accident and not anticipated to prevent his recovery within the MIG limits. Psychological injuries not resulting from the accident do not warrant removal from the MIG for psychological issues. I find Dr. Coupertherwaite’s October 2020 opinion to be well-founded based on her experience, the thoroughness of her assessment and I prefer her opinion over the applicant’s other medical evidence. The November 15, 2019 records of Dr. Birch, applicant’s family physician, confirm that the applicant was accepted into the Mind over Mood program but had not commenced treatment by that date.

26As a result, the applicant’s medical records do not contain persuasive evidence of psychological impairment caused by the accident that will prevent the applicant from achieving maximal recovery if treated within the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

27Even though there is some evidence of the applicant complaining of pain since the accident, there is insufficient medical evidence that he has chronic pain syndrome sufficient to take him out of the MIG.

28The applicant’s testimony that he has experienced pain and limitations since the fall of 2020 that prevented him from doing his activities of daily living and personal care is not consistent with the weight of his medical evidence filed. The records of the treating physiotherapy clinic from July to October, 2020 show that the applicant reported that his neck was feeling better, his back was feeling pretty good and he was doing a lot of running around on the weekends so his neck felt a little sore. The applicant testified that he did not recall making these statements.

29Dr. Coupertherwaite noted in her assessment in the fall of 2020 that the applicant told her he was independent in his activities of daily living and personal care, was able to drive, share household cooking, cleaning and laundry tasks with his mother, socialize with friends and family and taking up his previous hobbies of watching sports and playing video games. None of these are consistent with debilitating pain.

30The applicant’s medical records from 2021 regarding pain management programs, a cannabis clinic and prescriptions Dr. Birch are approximately two years post-accident and do not persuasively demonstrate, on a balance of probabilities, the applicant’s ongoing requirement for treatment due to the accident.

Is the Applicant Entitled to IRB in the Amount of $400.00 Per Week From December 24, 2019 To Date and Ongoing?

31The applicant was not working at the time of the accident but was receiving employment insurance benefits and had been since January 2019. The applicant submits that even though his employer called him post-accident, he could not return to his employment post-accident because of the injuries he sustained. The applicant received IRB until December 24, 2019 when the respondent determined him to be ineligible. The applicant claims IRB from that date and ongoing, a period including both 104 weeks after the accident and post 104 weeks.

32The respondent submits that it paid IRB to the applicant until it’s assessors Dr. Bansal, Timothy Hartog, kinesiologist, and Denny Brulotte, kinesiologist, indicated that the applicant did not meet the test for entitlement to IRB. The respondent submits that if he stopped seeking work this was not as a result of the accident but due to family and other stresses, and that the applicant has failed to prove entitlement to IRB.

What were the essential tasks of the applicant’s previous employment?

33At the time of the accident the applicant was not employed. His full-time employment at North Pole Trim and Supplies (“employer”) had been terminated January 13, 2019.

34The applicant testified that he when he worked for the employer, he did everything including sales of doors and trim to the public or builders, loading product onto trucks, driving trucks to deliver product, unloading product and putting it where the customer required. The applicant described his work as customer-paced, not self-paced because if a customer bought 20 doors, he had to help them load the doors on to the trailer. The applicant said he had to carry 50- or 75-pound doors. This part of his work was variable, and it changed depending on what customers were buying.

35However, the employer’s personal data form dated July 4, 2018 shows the applicant’s duties changed on July 9, 2018 to “inside sales”. The employer’s 2019 record of employment shows the applicant’s job title as “sales”. The employer’s 2019 OCF-2 shows the applicant’s latest job title as “sales” and his job description as “retail sales customer service” and contains no information under the heading “Essential Tasks of Job”.

36I find unpersuasive the applicant’s testimony that Gary Bloye, the employer’s manager did not know what the applicant did at the company. Gary Bloye signed the applicant’s 2016 WSIB form, did the applicant’s 2018 performance improvement plan, signed applicant’s 2019 termination letter and was shown as a contact for Service Canada in 2019. From this, it appears more likely than not that Gary Bloye understood what the applicant did for the employer.

Does the applicant suffer a substantial inability to complete the essential employment tasks?

First 104 Week IRB

37I find that the applicant is not eligible for an IRB based on a lack of medical evidence establishing he has substantial inability to complete the essential tasks of his pre-accident employment.

38The July 18, 2019 disability certificate, made by Alex Ciorba, the applicant’s physiotherapist, answers the question as to whether the applicant is substantially unable to perform the essential tasks of his employment, with “N/A”. This is not supportive of the applicant’s substantial inability to complete the essential tasks of his employment.

39Dr. Birch’s July 30, 2019 disability certificate describes the applicant’s injury as “whiplash injury”, indicates that the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident and indicates he cannot return to work on modified hours or duties. The anticipated duration of injuries is 9-12 weeks “at least”. Dr. Birch’s December 22, 2019 disability certificate indicates the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident and indicates he cannot return to work on modified hours or duties. The anticipated duration of injuries is “more than 12 weeks” with the explanation that “conditions are now chronic”. In this disability certificate Dr. Birch indicates that no further examination, investigations or consultations are contemplated or required. Dr. Birch wrote a letter to applicant’s legal representative May 18, 2020 in which he opines that the applicant’s injuries are “chronic mechanical low back pain, whiplash” and that the applicant suffers from an inability to perform the essential tasks of his employment.

40None of these opinions from Dr. Birch are sufficiently persuasive evidence of applicant’s substantial inability to complete the essential tasks of his employment. Dr. Birch gives no details of the essential tasks of the applicant’s employment. Prior to the May 2020 letter to applicant’s counsel Dr. Birch had not assessed the applicant since approximately the end of 2019 and subsequent to that appears to have relied on the applicant’s self-reporting. Dr. Birch’s opinion about the substantial inability of the applicant to complete the essential tasks of the applicant’s employment is not supported by his clinical records which contain scant reference to this.

41I prefer the evidence of respondent’s assessor Dr. Bansal, who several times has opined that the applicant sustained uncomplicated, self-resolving soft tissue injuries that would not impact his ability to perform his pre-accident employment. Dr. Bansal’s evidence is substantially consistent with that of Timothy Hartog, and Denny Brulotte, the respondent’s kinesiologist assessors, both of whom indicated that the applicant did not meet the pre-104 week test for entitlement to an IRB.

42The applicant testified that he feels he is not able to resume his pre-accident employment yet post-accident the applicant applied for two positions in restaurants as a busboy which tend to indicate the applicant himself feels he is capable of at least some tasks similar to those required by his previous employment such as dealing with customers, physical moving of objects and taking direction in a relatively fast-paced business environment.

43In totality, the weight of the medical evidence fails to establish that the applicant meets the eligibility test for a pre-104 week IRB. Even if there may be some tasks of his employment that the applicant might not be able to return to as a result of the accident, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident. The onus of proof is on the applicant and I find that he has failed to meet it.

Post-104 Week IRB

44Given that the applicant has not satisfied his burden of substantiating entitlement to pre-104 week income replacement benefit, the post-104 week income replacement benefit test of complete inability to engage in any employment cannot be met.

Is the Applicant Entitled to $131.49 for Physiotherapy Treatment?

45The applicant submits that this proposed treatment plan is reasonable and necessary. The respondent’s position is the opposite.

46Given that I have found that the applicant’s injuries resulting from the accident are within the MIG and applicant’s counsel has indicated in submissions that the MIG limits have been substantially provided by the respondent, it is not necessary for me to consider whether this disputed treatment plan is reasonable and necessary.

Is the Applicant Entitled to an Award?

47Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

48No payment is due to the applicant and therefore I find that there was no payment unreasonably withheld or delayed. For this reason, there is no award.

Interest

49As no benefits are payable, no interest is payable.

ORDER

50For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been substantially provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plan. I find that the applicant is not entitled to an IRB in the amount of $400.00 per week for the period in dispute. No award is made. No interest is payable. The application is dismissed.

Footnotes

1. 1O.Reg. 34/10 as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.