Zacharia Jacob v. Economical Insurance Company, 2022 CanLII 49953

Citation: Jacob v. Economical Insurance Company, 2022 ONLAT 20-012031/AABS

Licence Appeal Tribunal File Number: 20-012031/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:

Zacharia Jacob Applicant

and

Economical Insurance Company Respondent

DECISION

ADJUDICATOR: Lyndra Griffith

APPEARANCES:

For the Applicant: Andrea Seecharan, Counsel

For the Respondent: Modasir Rajabali, Counsel

HEARD: By way of written submissions

BACKGROUND

1The applicant, Zacharia Jacob, was injured in an automobile accident on April 4, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Aviva General Insurance, the respondent.

2The respondent denied the applicant’s claims, including physiotherapy, a psychological assessment and an orthopaedic assessment, because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on February 23, 2021, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
2. Is the applicant entitled to $3,826.44 for physiotherapy recommended by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted on August 28, 2019 and denied on September 5, 2019?
3. Is the applicant entitled to $2,680.00 for an orthopaedic assessment recommended by Complete Rehab Centre in a plan submitted on August 28, 2020 and denied on September 15, 2020?
4. Is the applicant entitled to $1,578.11 for physiotherapy recommended by Complete Rehab Centre in a plan submitted on November 9, 2020 and denied on November 20, 2020?
5. Is the applicant entitled to $2,460.00 for a psychological assessment recommended by Complete Rehab Centre in a plan submitted on November 18, 2020 and denied on December 1, 2020?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant has met his onus of proving that his accident-related impairments warrant removal from the MIG. The applicant is entitled to the orthopaedic assessment but is not entitled to the psychological assessment. The applicant is also entitled interest for issue 3 listed above.

ANALYSIS

The Minor Injury Guideline (MIG)

6The 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.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. 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. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

8The ambulance call report indicates that the applicant’s right ankle was swollen following the accident and that he was limping. On November 13, 2019, the applicant underwent X-Rays of his right ankle, and the following was noted “right ankle pain lateral malleolus persistent since MVC April 2019”. The opinion was “fragmentation of the lateral distal tibia, which appears chronic. Please correlate with previous imaging if available. No significant abnormality of the lateral malleolus or other cause for pain identified”. The applicant saw his family physician on November 22, 2019, and with respect to his ankle injury, his physician noted “pt to discuss with sport doctor”.

9The applicant underwent an insurer’s examination with Dr. Raymond Zabieliauskas on September 23, 2019. In his report dated October 2, 2019 Dr. Zabieliauskas concluded that “At most, Mr. Jacob sustained a cervical strain WAD II, a thoracolumbar strain, a mild left knee strain, and a right ankle strain. This was according to his rehabilitation facility, Complete Rehab Centre.” Dr. Zabieliauskas completed an addendum report dated July 28, 2020 and concluded the following: “An x-ray of the right ankle showed no acute findings on November 13, 2019. Findings were well corticated with no swelling or joint effusion indicating no significant injury”. Dr. Zabieliauskas did not comment on the “fragmentation” diagnosis and clarified that the new documentation did not change his opinion from his original report.

10I find that the applicant has met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis that his accident-related injury was not minor. Fragmentation of the lateral distal tibia does not fall under the definition of a minor injury.

The applicant’s entitlement to $3,826.44 and $1,578.11 for physiotherapy

11Based on evidence, I find that the applicant is not entitled to $3,826.44 and $1,578.11 for physiotherapy as these treatment plans are not reasonable and necessary.

12In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to s. 14-16.

13The respondent submitted that the applicant provided submissions on only issues 1, 3 and 5 listed above. The respondent submits that the applicant appears to have conceded that issues 2 and 4 are no longer in dispute or have otherwise been withdrawn. The respondent only briefly addressed them out of an abundance of caution.

14The applicant failed to make any submissions on these two treatment plans in his submissions and he did not provide any reply submissions. The Tribunal has been clear that it is not acceptable for a party to expect the Tribunal to puzzle through documents in order to decipher and assemble an evidentiary foundation for one’s case. Notwithstanding the lack of guidance in the applicant’s submissions, I reviewed of all of the evidence before me and could not find a copy of the disputed treatment plans. The applicant has the burden to prove on a balance of probabilities that he’s entitled to each benefit he claimed. He has failed to meet that onus for these physiotherapy treatment plans, and I therefore find they are not reasonable and necessary.

The applicant’s entitlement to $2,680.00 for an orthopaedic assessment

15I find on the evidence that the applicant is entitled to the treatment plan for an orthopaedic assessment, as it is reasonable and necessary.

16In determining whether an assessment is reasonable and necessary, it is important to note that the assessments are generally exploratory by nature. The purpose of an assessment is to determine whether or not a condition exists. Despite assessments being exploratory by nature, the applicant still bears the onus of establishing on a balance of probabilities, that an assessment is reasonable and necessary. In order to discharge this onus, the applicant must point to objective evidence that there are grounds to suspect the applicant has the condition for which he seeks the assessment.

17An OCF-18 in the amount of $2,680.00 for an orthopaedic assessment was completed by chiropractor Jessa Rahim on August 26, 2020. The purpose of the assessment was to evaluate and opine on the applicant’s current physical and health status.

[18] Dr. Duong Nguyen completed an Orthopedic Medicolegal Assessment Report on September 21, 2020. Dr. Duong noted the applicant’s accident-related complaints as follows:

1. Low back pain with associated muscle guarding and intermittent tingling and numbness in both legs; 2. Neck pain with associated muscle guarding and weakness; 3. Left shoulder pain with associated muscle guarding and weakness; 4. Right ankle pain with associated muscle guarding and weakness; 5. Left knee pain with associated muscle guarding, stiffness and weakness in the setting of previous patella tendon repair and ACL reconstruction.

19The applicant submits that the respondent has failed to conduct an insurer’s examination for this treatment plan. The respondent however relies on Dr. Zabieliauskas’ report to suggest that he did not show any signs of injuries or tenderness to his back, head, neck, and feet.

20Based on the medical evidence before me, I find that the applicant has satisfied his onus. I am persuaded by the applicant’s evidence that on a balance of probabilities, the treatment plan for an orthopaedic assessment is reasonable and necessary. The applicant had a previous injury in 2018 where he tore his left knee which required surgery in November 2018. The ambulance call report indicates that the applicant complained of left knee pain immediately following the accident. It is not unreasonable that his previous knee injury could have been exacerbated at the time of the accident. The applicant also suffers from fragmentation of the lateral distal tibia and complained of low back and shoulder pain. This is sufficient objective evidence that are grounds to suspect that he has a condition for which he seeks the assessment. The respondent did not present any evidence on whether on not this treatment plan was reasonable and necessary and Dr. Zabieliauskas did not seem to comment on the applicant’s fragmentation of the lateral distal tibia apart form concluding that it was an ankle sprain.

The applicant’s entitlement to $2,460.00 for a psychological assessment

21I find on the evidence that the applicant is not entitled to the treatment plan for a psychological assessment, as it is not reasonable and necessary.

22An OCF-18 was completed by psychologist, Dr. Betty Kershner and psychotherapist Sandeep Kaur on November 5, 2020. The purpose of the treatment plan was to assess the severity of the applicant’s psychological impairments in order to plan treatment. The applicant’s accident-related injuries were listed as: adjustment disorders, mixed anxiety and depressive disorder, disorders of initiating and maintaining sleep [insomnias], stress, not elsewhere classified.

23The respondent submits that the applicant relies on a s. 25 Psychological Assessment Report completed by the assessors who proposed this treatment plan via video on April 20, 2021. The respondent argues that this report was never produced prior to the service of the applicant’s submissions despite s. 33 requests. The Productions Exchange Deadline was May 31, 2021. The respondent submits that this report should not be considered or entered into evidence by this Tribunal.

24The case conference report and order of Adjudicator Grieves dated February 24, 2021, ordered that “by May 31, 2021 the parties shall disclose any other items that have not been previously disclosed, but which they intend to present as evidence at the hearing.” The applicant’s submissions were received by the Tribunal on July, 5, 2021.The applicant has not responded to the respondent’s submissions in reply therefore, I have not considered the applicant’s Psychological Assessment Report, as it was not produced within the timelines ordered by the Tribunal. Further, Rule 9.4 of the Tribunal’s Rules states that a party who fails to comply with any Rule, direction or order with respect to disclosure of evidence may not rely on that evidence without consent of the Tribunal. Given the circumstances set above, I exercise my discretion to refuse consent.

25The medical records from the applicant’s family doctor did not note any psychological complaints and the respondent relies on its s. 44 psychological report completed by psychologist, Dr. McDowall on March 26, 2021. Dr. McDowall opined that applicant had minimal depressive and anxiety symptoms which fell well short of any potential diagnoses under the DSM-5. Dr. McDowall further opined that the applicant had no psychological impairments.

26The Tribunal has consistently held that an OCF-18 on its own is not enough to meet the applicant’s evidentiary burden of proving that it is reasonable and necessary. For the reasons above, I have already ruled on excluding the applicant’s psychological assessment report. Therefore, based on the evidence that I have admitted before me, I am not persuaded that this treatment plan is reasonable and necessary.

Interest

27Interest is payable for the treatment plan for the orthopaedic assessment, pursuant to s. 51 of the Schedule.

CONCLUSION

28For the reasons outlined above, I find that:

(i) The applicant has not sustained predominantly minor injuries as defined under the Schedule;

(ii) The applicant is not entitled to $3,826.44 and $1,578.11 for physiotherapy;

(iii) The applicant is entitled to $2,680.00 for an orthopaedic assessment;

(iv) The applicant is not entitled to $2,460.00 for a psychological assessment; and

(v) Interest is payable for the orthopaedic assessment, pursuant to s. 51 of the Schedule.

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. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).