Hughes v. Intact Insurance Company, 2022 CanLII 53743

Citation: Hughes v. Intact Insurance Company, 2022 CanLII 53743

Licence Appeal Tribunal File Number: 20-004212/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Brian Hughes

Applicant

and

Intact Insurance Company

Respondent

MOTION AND HEARING ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Louis DelSignore Jr, Counsel

For the Respondent: Shannon Mulholland, Counsel

Motion and hearing heard: By way of written submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was injured in an automobile accident on June 16, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)¹.

2The applicant was denied certain benefits and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

3A case conference took place on September 16, 2020, and a written hearing was scheduled for March 1, 2021. The written hearing was adjourned on consent.

4After the Case Conference², the original written hearing date³ was vacated and rescheduled for April 19, 2021, with evidence due on February 15, 2021. The applicant's written submissions were due March 16, 2021, and the respondent's due March 30, 2021, with the applicant's reply due April 9, 2021.

5The applicant sought to admit evidence into the hearing record after the production deadlines. The applicant was advised to file a Motion.

6On June 1, 2021, the applicant filed a Notice of Motion requesting a report be added into evidence. On June 3, 2021, the applicant filed a second Notice of Motion to allow a letter into evidence.

7Based on this, Adjudicator Lindsay Lake issued an Order⁴, which set the procedural schedule for the applicant's Motions and ordered that the decision on these Motions will form part of the final decision of the written hearing in this matter. Adjudicator Lake also added the following issue to the issues in dispute:

Is the respondent entitled to recover its costs regarding the applicant's June 1, 2021 and June 3, 2021 Notices of Motion because the applicant acted unreasonably, frivolously, vexatiously or in bad faith?

MOTION

8On June 1, 2021, the applicant filed a Notice of Motion requesting that the Tribunal:

i. Grant an order allowing Dr. Giles' November 9, 2020 Neurologist Report into evidence for the written hearing.

9On June 3, 2021, the applicant filed a Notice of Motion requesting that the Tribunal:

ii. Grant an order allowing a letter form Dr. Gino Pannozzo, general practitioner, dated May 12, 2021, into evidence for the written hearing.

RESULTS OF MOTION

10The applicant may not rely on the report of Dr. Giles nor the letter of Dr. Pannozzo.

11The respondent is not entitled to costs of the motions.

LAW

12Rule 3.1 of the Tribunal's Rules (the 'Rules')⁵ states that the Rules will be liberally interpreted and applied, and may be waived, varied or applied on the Tribunal's own initiative or by a party's request to facilitate a fair, open and accessible process and allow effective participation by all parties, ensure efficient, proportional and timely resolution of the merits of proceedings before the Tribunal, and ensure consistency with governing legislation and regulations.

13Rule 9.1 states that the Tribunal may, at any stage of a proceeding, order any party to provide further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.

14Rule 9.4 states that if a party does not comply with any Rules, direction or orders regarding disclosure, inspection of documents/things, or witness lists, that party may not rely on the document/thing as evidence, or call the witnesses to give evidence, without consent of the Tribunal.

15Rule 19.1 states that where a party believes another party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith, that party may request that the Tribunal order costs.

16Rule 19.2 states that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.

ISSUE FOR THE MOTIONS

Positions and Arguments

17The applicant's two motions requested that Dr. Katheryn Giles's Neurologist Report⁶ and Dr. Gino Pannozzo⁷'s letter should be allowed into evidence for the written hearing, despite the applicant not complying with the Case Conference Order⁸ deadlines for evidence disclosure.

18The applicant submitted that the reports are relevant and should be considered, as they are evidence that are vital in determining the applicant's entitlement to benefits.

19In terms of the delay in providing the reports, the applicant submitted that they were provided to the respondent as soon as possible. The applicant also made reference to COVID-19 making circumstances more difficult but did not particularize the circumstances or events.

20The applicant submitted the report of Dr. Pannozzo was key in determining if the applicant's injuries fell within the Minor Injury Guideline ('MIG'). The applicant argued that the report provides insight into the applicant's psychological injuries, chronic pain, sleep issues and post-concussive syndrome.

21According to the applicant, Dr. Pannozzo's report particularizes the applicant's injuries, and is vital to determining one of the main substantive issues before the Tribunal and ought to be allowed into evidence.

22The applicant also submitted that allowing Dr. Pannozzo's report into evidence would not be prejudicial to the respondent. He argued that probative value of Dr. Pannozzo's report should be weighed against the prejudice to the respondent, as seen in Howe v. The Commonwell Mutual Insurance Group.⁹ Based on this, the applicant submitted there is no prejudice to the respondent, and it had the chance to have the applicant assessed via an Insurer's Examination and did so.

23In the alternative, should the Tribunal find there is prejudice to the respondent, the applicant argued that any prejudice could be cured by allowing the respondent to respond to the report, in accordance with Howe¹⁰.

24The applicant argued that based on the Rules, the Tribunal has the discretion to allow the report into evidence, and to not do so would not be proportional in the circumstances. Furthermore, as Rule 3.1 allows for liberal interpretation to ensure an "efficient, proportional and timely resolution". The applicant submitted that this position is supported by section 2 of the Statutory Powers Procedure Act¹¹ (SPPA).

25Though the applicant admits that the report was submitted late, based on Rule 9.1, he argued that the Tribunal can make Orders for disclosure, even if the standard timelines are not respected. Though the applicant acknowledges this is not ideal, he submitted his request is not unusual, and this type of request is regularly granted as the prejudice is easily cured¹².

26The respondent submitted that the applicant failed to respect the Tribunal's Order. The respondent submitted that allowing the Dr. Pannozzo and Dr. Giles' documentation evidence would be unfair to the respondent.

27The respondent relied on 18-002569 v Aviva Insurance Canada¹³, which found that directions from the Tribunal should be followed, and if they are not followed without sufficient or persuasive reasons, there ought to be consequences. It also relied on the Order from the Case Conference, which the applicant failed to comply with.

28In this case, the respondent argued that the applicant failed to comply with the Case Conference Order¹⁴, and the applicant failed to provide an explanation for the delay in the reports, beyond saying they were not available, it should not be allowed to rely on the reports.

29The respondent also stated that though the applicant made vague references to the current COVID-19 pandemic, he failed to link how the pandemic delayed the production of the evidence. The respondent submitted the Tribunal ought not to accept COVID-19 as a blanket reason for a party failing to meet the Tribunal's deadlines and should follow the decision of AJ v Aviva General Insurance¹⁵.

30Furthermore, the respondent submitted that simply failing to show prejudice as a result of late service does not permit the applicant to allow the requested documents into evidence and supported this argument by relying on the decision of 18-002569 v. Aviva Insurance Canada¹⁶.

31The respondent argued that the applicant was aware or ought to have been aware that Dr. Giles' report was outstanding and had ample time to address this before the written submissions for the substantive were due. As the applicant failed to do so, the report should not be admitted into evidence.

32The respondent also noted that Dr. Giles' report¹⁷ was written more than five months before the written hearing was scheduled, but the report was not produced within the timelines set by the Tribunal. Instead, the applicant raised the issue in an email to the Tribunal and the respondent on May 21, 2021.

33The respondent submitted that it would be seriously prejudiced if Dr. Giles' report were allowed into evidence, as the respondent was prevented from responding to the case it must defend itself. The respondent also argued that it would suffer prejudice should it be allowed into evidence, as the respondent was not given the opportunity to review the report or author a responding report nor can it do so via this motion.

34Based on this, it submitted that dismissing both the applicant's motions would result in the most just, efficient, and timely resolution of this matter.

Analysis

35After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not persuaded me that either the report of Dr. Giles or the letter of report of Dr. Pannozzo should be allowed into evidence. Therefore, the applicant's motions are denied.

36I agreed with the respondent's position regarding these motions and their clear similarities to the matter in the 18-002569¹⁸ case and agree that the applicant's arguments cannot be accepted since the respondent has demonstrated the prejudice it experienced as a result of the applicant's actions. I find that the respondent has shown the prejudice suffered, in that it was deprived the opportunity to obtain a responding report or reports.

37I also understood the applicant's arguments regarding Rules 3.1 and 9.1 but noted that the applicant did not provide any submissions regarding Rule 9.4. Without this information, I am not comfortable granting the liberal interpretation of the Rules requested by the applicant, as the applicant failed to comply with Rule 9.4.

38The applicant provided little or no information as to why he provided Dr. Giles report and Dr. Pannozzo's letter several weeks outside of the disclosure period, what steps he took to minimize the prejudice to the respondent, why he didn't inform the respondent that these reports were coming, why he did not contact the Tribunal within a timely manner, and that the evidence would be served outside of the production dates or any other relevant information.

COSTS

Positions and Arguments

39The respondent sought costs of the hearing pursuant to Rule 19 and section 17.1 of the SPPA on the basis that the applicant's behaviour during the course of the proceeding was unreasonable, vexatious and in bad faith.

40Rule 19.5 of the Common Rules set out the factor to be considered by the Tribunal in awarding costs:

a) The seriousness of the misconduct;

b) Whether the conduct was in breach of an order or direction issued by the Tribunal;

c) Whether or not a party's behaviour interfered with the Tribunal's ability to carry out a fair, efficient, and effective process;

d) Prejudice to other parties;

e) The potential impact an order for costs would have on individuals accessing the Tribunal system.

41The respondent requests costs for the two motions. The respondent argued that the applicant has shown a lack of respect for the Tribunal and the Tribunal should not use its discretion to allow the report of Dr. Giles's or Dr. Pannozzo's into evidence, which would be highly prejudicial. The respondent submits that the applicant's misconduct was serious, resulted in numerous delays and resulted in prejudice to the respondent. The applicant failed to respect the Tribunal's process and should be penalized for wasting resources, as seen in J.K. v. Aviva Insurance Company of Canada¹⁹.

42In terms of the considerations mentioned above²⁰, the respondent submitted that Dr. Pannozzo's and Dr. Giles's evidence is highly prejudicial, as the respondent was not afforded an opportunity to respondent to it, nor did Dr. Pannozzo's evidence accompany questions put to Dr. Pannozzo by the applicant's counsel.

43The applicant submitted that the evidence he wished to rely on was not received in a way where they could have been served earlier. Furthermore, he reminded the respondent that the two reports totaled 4 pages of information. The applicant submitted that his actions cannot be construed as unreasonable behaviour or bad faith.

44The applicant rejected the respondent's position regarding costs and submitted that he provided the evidence as soon as possible, and at the earliest opportunity.

45The applicant submitted that costs are not compensatory, but rather are meant to maintain civility and order during proceedings²¹. The test for costs remains a high bar, which the respondent has failed to meet.

46Furthermore, the applicant submitted that ordering costs for this matter would have a potential impact on individuals trying to access the Tribunal's services, as it would have the potential to stifle applicants trying to provide the most relevant, contemporaneous evidence to the Tribunal.

Analysis

47After considering the respondent's request for costs, I have declined to award such. Requests for costs have a high standard, and costs should only be ordered where there is no other reasonable means of addressing misconduct.

48Although the applicant's conduct contributed to a delayed and inefficient process that resulted in some prejudice to the other party, the Tribunal was able to balance the prejudice to the parties.

49In this case, the Tribunal was able to address the applicant's conduct by excluding the evidence the applicant wished to rely on, thereby addressing the misconduct of the applicant.

50I agreed with the applicant's position that though the applicant's actions regarding producing the report were tardy, they do not rise to the level to be characterized as frivolous, vexatious, unreasonable or in bad faith.

HEARING ON THE SUBSTANTIVE ISSUES

51On consent, the following issues are to be decided by the Tribunal:

i. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to a medical benefit in the amount of $1,995.50 for occupational therapy services recommended by Dianna Black in a treatment plan ('OCF-18') submitted on November 18, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $1,397.00 for physiotherapy services recommended by Jacqueline Render in an OCF-18 submitted on October 15, 2019?

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

LAW

52Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries within the minor injury guideline.

53Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of his/her/their medical and rehabilitation benefits payable shall not exceed $3,500.00.

54Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an applicant provides compelling medical evidence documented by a health practitioner before the accident that he has a pre-existing medical condition that will prevent him from achieving maximal recovery from the minor injury if he is subject to the MIG funding limit.

55Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

56Section 15(1) of the SPPA states that a tribunal may admit as evidence at a hearing any oral testimony and any document or thing relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

SUBMISSIONS AND EVIDENCE

Submissions regarding the applicant's partner's injuries

57In its substantive written submissions, the respondent raised a preliminary issue, requesting that the applicant's partner's injuries and the handling of her accident benefits file be excluded from consideration at this hearing, despite not being before me. It made submissions regarding the lack of relevance of these documents.

58However, the respondent did not file a Motion to address this prior to the hearing. Section 15(1) of the SPPA gives me the power to determine what is and is not relevant to the substantive issues, which I will address in this decision.

59The parties agreed that the applicant was in an accident that occurred near Porter, Indiana. This was a 4-vehicle collision and the applicant's partner was also injured. The applicant submitted that his partner also sustained injuries as a result of the accident.

60As a result of the accident, the vehicle's airbags deployed. Since the applicant did not want to incur American medical bills related to his accident, he did not attend the hospital immediately after the accident.

61Since the applicant's vehicle was written off due to extensive damage, the applicant drove home to Canada in a rental vehicle, taking rural roads. When the applicant returned to Canada on June 18, 2019, he visited his family doctor the next day, Dr. Pannozzo.

62The respondent submitted that the applicant's partner's information is irrelevant, as individuals can be involved in the same accident but suffer different and varying injuries, depending on the circumstances and mechanics of the accident.

Analysis

63When considering relevance of submissions, section 15(1) of the SPPA states that a tribunal may admit as evidence at a hearing, whether or not given or proven under oath/affirmation or admissible as evidence in court any oral testimony and any document or other thing relevant to the subject matter of the proceeding, and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

64In this case, the applicant has not provided persuasive submissions or evidence showing the relevance of the applicant's partner's injuries in relation to the applicant's own injuries.

65I agree with the respondent's submissions, namely that the applicant's partner's injuries have little to no bearing on the applicant's injuries, as it is common for two people in the same accident to suffer very different injuries as a result of their particular situation.

Does the applicant have any pre-existing conditions?

66The applicant submitted that he ought to be excluded from the MIG on the basis of having a pre-existing condition that will prevent maximal medical recovery from the minor injury if he is subjected to the $3,500.00 limit under the MIG.

67The 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 a person's impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

68The applicant submitted that he suffers from a documented, pre-existing condition before the accident that would prevent maximum medical recovery if limited by the MIG. He submitted that he suffered from a left bicep tear that has been exacerbated by the accident and will not fully recover if not provided more treatment beyond that offered by the MIG.

69The applicant relied on records from Dr. John McCuaig²², physician, indicating that the applicant suffered an acute long head bicep rupture, a cuff impingement/tendinopathy, and cervical myofascial pain syndrome before the accident.

70The applicant argued that at the time of the accident, he was actively participating in physiotherapy to address his shoulder. He continued by stating that after the accident, his pain was exacerbated by the accident.

71The applicant relied on a disability certificate (an 'OCF-3') completed²³ by Dr. John Peever, chiropractor. Dr. Peever observed the following of the applicant's post-collision injuries: concussion, torn left bicep, cervical, thoracic and lumbar strain and headaches and dizziness.

72The applicant also relied on the treatment plan (the 'OCF-18') of Dr. Peever²⁴ which states that the applicant's injuries are not minor in nature due to his pre-existing condition, torn left biceps tendon. Dr. Peever comments that the injury has caused the applicant's pain to flare and that the applicant suffers from concussion – slurred speech/concentration off.

73The OCF-18 stated that the applicant's injuries were preventing him in completing household tasks, community-based activities, work, drive, participate in leisure activities and maintain healthy relationships²⁵.

74The applicant also submitted that as a result of his injuries, he has not returned to his pre-collision avocational activities, as he is unable to golf, play soccer, had to take time off from his employment after the accident and was unable to drive. The applicant also submitted that this has resulted in him gaining weight. Based on this, he argued that he requires treatment beyond the MIG to return to his pre-accident lifestyle and activities.

75The respondent disagreed with this position. It submitted that the applicant should not be removed from the MIG on the basis of his pre-existing left bicep tear and/or tendonitis. The respondent argued that the applicant has not submitted any diagnostic evidence to demonstrate a rupture/tear as a result of the accident.

76The respondent also noted that the applicant had failed to provide any medical evidence to demonstrate that a health practitioner substantiated his claim that his left shoulder injury or tendonitis would prevent him from reaching maximal medical recovery if subjected to the MIG's limits.

77In terms of the OCF-3 and OCF-18 relied upon by the applicant, the respondent reminded the Tribunal that these documents alone are not enough to remove an applicant from the MIG, as seen in I.R. v. TD Insurance Meloche Mennox²⁶ and P.S. v. Wawanesa Mutual Insurance Company²⁷. In these cases, both adjud adjudicators found that treatment plans have limited weight when demonstrating an applicant should be removed from the MIG and that compelling medical evidence was also required. As the applicant has not provided any evidence-based opinion from a medical professional related to how his left bicep tear and/or tendonitis would prevent him from reaching maximal medical recovery if confined to the MIG, he has not met his evidentiary burden.

78The respondent noted that the applicant's shoulder was subject to an ultrasound²⁸ and was found to be normal, with no notes of the alleged injury. The applicant also attended an appointment at AIM Clinic²⁹, where he reported that he would be golfing over the weekend and did not identify his shoulder as a barrier to doing so.

79Furthermore, the applicant attended a section 44 assessment³⁰ with Dr. Mohamed Khan, physician. Dr. Khan observed that both the applicant's arms had a full range of motion, despite the applicant's shoulder injury before the accident. Dr. Khan found that the applicant did not have a significant pre-existing injury or condition that would exclude the applicant's treatment from the MIG.

Analysis

80After considering the submissions and evidence of the parties and based on a balance of probabilities, I am not persuaded that the applicant's pre-existing injury warrants removal from the MIG, as he has not demonstrated that this injury requires treatment beyond the MIG limits to obtain maximum medical recovery.

81As noted by the respondent, the applicant has not provided any medical imagining to support his position that his pre-existing left shoulder injury was exacerbated by the accident, and the ultrasound of the applicant's left shoulder was normal. Though I am aware of Dr. Peever's OCF-3 and OCF-18, I am left wondering on what basis he made his findings of the applicant's shoulder injury, given he did not conduct any diagnostic imaging.

82Furthermore, beyond the OCF-18 of Dr. Peever, I have not been presented with compelling medical evidence supporting the applicant's position, that his pre-existing injury requires treatment beyond the MIG limit. The only practitioner who found that the applicant's injuries required further treatment was Dr. Peever, the doctor who authored the OCF-18 in dispute. Therefore, I find that the applicant has not met his evidentiary burden.

Does the applicant suffer from chronic pain?

83The applicant submits that he suffers from chronic pain as a result of the accident, which removes him from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions.

84The applicant argued that he suffers from chronic pain in his left shoulder as a result of the accident. He relied on the same evidence submitted for his pre-existing injury, discussed above. The applicant also argued that he suffers from chronic, painful headaches. However, I will address those complaints in the subsequent section of this decision.

85The respondent refuted this position; the respondent argued that the applicant had not been diagnosed with chronic pain by a medical professional.

86Furthermore, the respondent noted that even if the applicant had received this diagnosis, this in it itself does not remove an injury person from the MIG and relied on N.J. v TD General Insurance Company³¹, which supported this position. Instead, the respondent submitted that the applicant carries the burden of showing his/her/their chronic pain is continuous or chronic pain syndrome and of a severity that it causes suffering/distress with function impairment(s) or disability³².

87When evaluating chronic pain, the Tribunal has often turned to the AMA Guides³³ to establish chronic pain. The Tribunal has determined that at least three of the six criteria must be met to establish a diagnosis of chronic pain syndrome³⁴, which are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. Excessive dependence on health care providers, spouse, or family;
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
4. Withdrawal from social milieu, including work, recreation, or other social contacts;
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

88In this case, the respondent submitted that the applicant has not shown that he meets any of the six criteria listed above, since his evidence contains no proof that he is over-using prescriptions, has excessive dependence on medical providers or others, has secondary physical deconditioning, social withdrawal, failure to pursue work, family or recreational needs, or development of psychosocial sequelae.

Analysis

89After considering the submissions of the parties, and based on a balance of probabilities, I find that the applicant has not met his evidentiary burden to demonstrate that he suffers from chronic pain.

90I agreed with the respondent's position, namely that the applicant had failed to demonstrate with medical evidence that he suffers from chronic pain requiring removal from the MIG.

91I also find that the evidence presented by the applicant is not sufficient to remove him from the MIG on this basis, as he failed to provide persuasive medical evidence to support this position.

92Instead, I was more persuaded by the respondent's position and case law, including the AMA Guides. Though I am not bound by the AMA Guides with respect to chronic pain, and its criteria are not found within the Schedule I find them to be a useful tool for evaluating chronic pain.

93In this case, the applicant did not demonstrate that he was able to fulfil three of the six criteria of the AMA Guides. In terms of these six criteria, the applicant's submissions were lacking. Though the applicant made submissions regarding his reduced avocational activities, his submissions were brief and did not include any direct evidence to support the reduction nor was this corroborated by a medical professional.

94The applicant does not have a diagnosis of chronic pain from a medical practitioner, nor has he demonstrated that he fits within the criteria of the AMA Guides for a diagnosis of chronic pain. In short, the applicant has not met his onus. Therefore, I will not remove him from the MIG on this basis.

Does the applicant have a concussion or post-concussive issues?

Causation

95The respondent argued that the applicant's concussion and chronic headaches were not caused by the accident. It argued that based on the "but for" test, the applicant must demonstrate that his injuries would not have occurred "but for" the accident³⁵.

96The respondent alleged that the applicant attended an initial assessment at Body Tech³⁶ after attending the AIM Clinic. The clinical notes and records from this visit indicate that the applicant did not note any head trauma or symptoms associated with concussions such as vomiting or confusion.

97The applicant reported that since the accident he had chronic headaches, dizziness, back pain, general body pain, noise trigger symptoms, forgetfulness, issues with focus and irritable³⁷.

98To support this position, the applicant relied on the clinical notes from his family doctor, Dr. Pannozzo, where three days after the accident, the applicant reported pain in his head, neck, ribs and back³⁸. Dr. Pannozzo noted that the applicant had a restricted range of motion in his neck, and his upper and lower back were tender. Based on this, Dr. Pannozzo opined that the applicant had whiplash and cervical strain. Dr. Pannozzo also referred the applicant for imaging studies and to physical therapy.

99The applicant then attended the AIM Health Group³⁹, where he complained of headaches, pain in his left shoulder, chest, right side, wrists, back, quadriceps and calves⁴⁰ to chiropractor Dr. Peever. After examining the applicant, Dr. Peever opined that the applicant had a concussion caused by his air bag and his left bicep injury.

100The OCF-18 of Ms. Black⁴¹ stated that the applicant reported frequent headaches, decreased memory, difficulties with multi-tasking, word finding, sleeping, fatigue, mood fluctuations and motivation as a result of the accident.

101The applicant returned to Dr. Pannozzo⁴² reporting poor coordination in his hands, specifically with zippers, balance issues, blurred vision and headaches. Dr. Pannozzo also referred the applicant to a neurologist to investigate his headaches. The applicant did not present evidence that he attended a neurologist.

102The applicant submitted that both a chiropractor and/or a physiotherapist are trained to recognize the signs and symptoms of a concussion and post-concussive syndrome. The applicant directed the Tribunal to 18-000655 v. Echelon General Insurance Company⁴³, where the applicant tried to escape the MIG as a result of a concussion. In that matter, Adjudicator Sewrattan found that the applicant did have a concussion, despite the respondent's neurologist not observing "a clear sign" of post-concussive syndrome. The applicant submitted that as he has three independent medical professionals indicating he suffers from concussion like symptoms and headaches, he must be removed from the MIG.

103The applicant also submitted that his diagnostic imaging being unremarkable, meaning not being unusual, is not the "be all end all" in determining an injured person has a concussion, as seen in 17-001473 v Unica Insurance Inc.⁴⁴.

104The respondent disagreed with the applicant's position and argued that his reports of headaches are not as a result of a concussion or post-concussion syndrome that would remove him from the MIG. Instead, it submitted that the applicant's headaches are a sequela of his soft tissue injuries as a result of the accident.

105The clinical notes and records also noted that on the day of assessment, the applicant's dizziness was "here and there, not chronic, lightheaded and "off", did not suffer from vertigo, nausea but did report neck pain, hearing changes, headaches, issues with talking and word finding, and chronic fogginess"⁴⁵. The notes also state that the applicant did not attend concussion treatment.

106The respondent also noted that the clinical notes and records from the applicant's visits that the applicant underwent laser eye surgery a week before his assessment and felt like his vision wasn't as clear as he used to be. Based on this, it submitted that the applicant's vision issues were pre-existing and not caused by the accident.

107The applicant then attended a neuro-visual assessment⁴⁶ at KW Neuro related to his headaches⁴⁷. The applicant was seen based on a referral from Body Tech.

108Based on the applicant's Neuro-Vision evaluation of Dr. Kimberly Dolman, optometrist, Dr. Dolman determined that the applicant showed deficits in his ocular motility, binocularity, peripheral awareness, perceptual skills and primitive reflexes⁴⁸.

109However, none of the assessors at KW Neuro diagnosed the applicant with a concussion as a result of the accident and found the applicant's deficits were related to the most common post-concussion like symptoms, such as headaches, blurry vision and balance issues⁴⁹. Instead, he was diagnosed with astigmatism and presbyopia and recommended vision therapy, glasses for driving to avoid eye strain causing headaches, and near glasses to improve balance.

110Based on this evaluation, the respondent submitted that the diagnoses of the applicant's astigmatism and presbyopia are not related to the accident but can cause similar symptoms to a concussion and chronic painful headaches, such as headaches, eye strain, vision issues and fatigue.

111The respondent also noted that the applicant participated in a section 44 assessment⁵⁰ with Dr. Larry Allen, ophthalmologist for an ophthalmology assessment. During this assessment, the applicant noted his vision issues, including noting he used his glasses for reading and computer work and that his peripheral vision was not good⁵¹. Dr. Allen did not identify any vision related sequela as a result of the applicant's accident nor any reasons to remove him from the MIG.

112The respondent also relied on its section 44 assessment, conducted by Dr. Mohamed Khaled, physician⁵². Dr. Khaled found that the applicant had the following injuries as a result of the accident: mechanical, low back pain and grade 2 whiplash of the neck with associated headaches⁵³. Dr. Khaled opined that the applicant suffered uncomplicated, soft tissue injuries with no evidence of neurological sequela, and therefore his injuries were subject to the MIG⁵⁴.

113The respondent also disagreed with the applicant's submissions regarding 17-001473 v Unica Insurance Inc⁵⁵. It submitted that this decision was not relevant, as in that matter, the applicant was diagnosed by a qualified medical expert, a family physician. In the current matter, the applicant has no such diagnosis.

114The respondent submitted that because the applicant failed to mention to Dr. Allen and Dr. Khaled that he had undergone laser eye surgery in 2019, his credibility is negatively impacted; as a result, less weight should be put on the applicant's reported symptoms.

115The respondent directed the Tribunal to the case of E.L. v Unica Insurance Inc.⁵⁶, where the applicant submitted that as a result of the accident, he had a concussion based on his father's reporting. However, since the medical evidence noted no concussion diagnosis from a medical professional, this was not found to be sufficient to compel Adjudicator Moten to find that the applicant suffered a concussion as a result of the accident. Furthermore, Adjudicator Moten found that the applicant's vision issues were pre-existing and were not a result of the alleged concussion.

116The respondent also noted that the applicant himself has suggested his headaches as related to the stresses of his job, as noted by Dr. Pannozzo⁵⁷. The applicant had also acknowledged during the Body Tech Physiotherapy Assessment that he was dealing with increased stress due to work and the applicant's child⁵⁸.

117Finally, the respondent also addressed the applicant's poor coordination and noted that this issue was pre-existing before the accident.

118Based on all of the above, the respondent submitted that the applicant's headaches and concussion like symptoms are due to his pre-existing vision issues and the side effects from his laser eye surgery.

119The applicant made no submissions related to causation.

Analysis

120After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has not demonstrated that the cause of his alleged concussion and chronic headaches were caused by the accident.

121When considering the applicant's claims of concussion and chronic, painful headaches, the most insightful medical information would be a diagnosis with an explanation from a neurologist. In this case, this information is not available because the applicant did not have a neurological examination.

122In this case, the applicant did not provide medical evidence from a qualified, medical practitioner and provide a diagnosis of a concussion. Though Dr. Peever did provide such, his findings were lacking; he did not provide any information regarding the methodology he used in determining this diagnosis and furthermore a diagnosis of concussion is beyond his scope of practice. Neither Dr. Dolman, Ms. Flemming nor Ms. Gerber diagnosed the applicant with a concussion but note he has post-concussion symptoms.

123Also, Dr. Peever is a chiropractor; though he is qualified to observe and note symptoms of a concussion, he is not qualified to diagnose one, as it goes beyond the scope of his practice. Since the applicant has not provided me with persuasive medical evidence that he was diagnosed with a concussion by a qualified medical professional as a result of the accident, I find that his symptomology can be attributed to his pre-existing eye conditions.

124In terms of the applicant's chronic headaches, I find that these were caused by the applicant's pre-existing vision issues. I base myself on the fact that this was not refuted by the applicant. This was also based on the medical documentation and evidence provided by the respondent. All of the applicant's symptomology can be ascribed to his pre-existing eye conditions.

125I noted that the applicant's vision issues, such as blurriness, balance problems, and eye strain causing headaches may have been exacerbated by the accident. However, since I found the applicant to have pre-existing vision problems, I also found that the accident did not cause the applicant's diagnosable eye problems, namely astigmatism and presbyopia.

126Furthermore, these eye issues are attributable to the applicant's alleged post-concussive symptoms, namely his headaches and balance issues, as addressed by Dr. Dolman, Ms. Fleming, and Ms. Gerber in the Neuro-Vision Evaluation at KW Neuro.

127As I have found that the applicant's post-concussion or concussion like symptoms were not caused by the accident, I find that his injuries fall within the MIG; it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary, as the MIG limits have been exhausted.

Interest

128Since no benefits in dispute are overdue, no interest is owing.

CONCLUSION AND ORDER

129The applicant's motions are denied.

130The respondent's request for costs is denied.

131The applicant's injuries are found to be in the Minor Injury Guideline.

132The applicant is not entitled to payment for the treatment plans in dispute.

133The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Of September 16, 2020.
3. 3Of March 1, 2021.
4. 4Dated June 2, 2021.
5. 5Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended.
6. 6Dated November 9, 2020.
7. 7Dated May 12, 2021.
8. 8Dated September 17, 2020.
9. 9Howe v. The Commonwell Mutual Insurance Group, 2021 CanLII 120970 (ON LAT) at paragraph 20.
10. 10Ibid.
11. 11Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
12. 12Ibid at paragraph 20.
13. 1318-00269 v Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT) (18-002569).
14. 14Dated September 17, 2020.
15. 15AJ v Aviva General Insurance, 2020 CanLII 72500 (ON LAT).
16. 1618-002569 v Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT).
17. 17Dated November 9, 2020.
18. 1818-00269 v Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT).
19. 19J.K. v. Aviva Insurance Company of Canada, 2020 CanLII 34446 (ON LAT).
20. 20Rule 19.5.
21. 21K.G. v Aviva Insurance Company of Canada, 2020 CanLII 72513 (ON LAT).
22. 22Dated January 7, 2019.
23. 23On June 25, 2019.
24. 24Dated June 24, 2019.
25. 25Additional comments section of the OCF-18 of Dianna Black, Occupational Therapist on November 18, 2019.
26. 26I.R. v. TD Insurance Meloche Mennox, 2020 CanLII 87968 (ON LAT).
27. 27P.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 87934 (ON LAT).
28. 28On August 23, 2019.
29. 29On July 5, 2019.
30. 30On February 5, 2020.
31. 31N.J. v TD General Insurance Company, 2020 CanLII 57413 (ON LAT).
32. 32Ibid.
33. 33American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.
34. 3417-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT)
35. 35See Sabadash v. State Farm et al., 2019 ONSC 1121 at para 31.
36. 36On October 4, 2019.
37. 37Based on the clinical notes and records of Body Tech Physiotherapy, dated October 4, 2019.
38. 38From Dr. Pannozzo's clinical notes and records of June 19, 2019.
39. 39On June 21, 2019.
40. 40Based on the AIM Clinic clinical notes and records of June 21, 2019.
41. 41Additional comments section of the OCF-18 of Dianna Black, Occupational Therapist on November 18, 2019.
42. 42On June 11, 2020.
43. 4318-000655 v. Echelon General Insurance Company, 2018 CanLII 132557 (ON LAT).
44. 4417-001473 v Unica Insurance Inc., 2017 CanLII 69462 (ON LAT).
45. 45Based on the clinical notes and records of Body Techy Physio, dated October 4,2019.
46. 46And assessed by Dr. Kim Dolman, Optometrist, Reena Fleming, Vision Therapist and Karen Gerber, Vision Therapist.
47. 47Where the applicant attended on September 3 and 9, 2020.
48. 48Based on the Neuro-Vision Evaluation dated October 2, 2020.
49. 49Ibid.
50. 50On January 20, 2021.
51. 51Based on the Independent Ophthalmology Assessment of Dr. Allen, dated February 3, 2021.
52. 52On February 5, 2020.
53. 53Based on the Independent Medical Physician Assessment of Dr. Khaled dated February 26, 2020.
54. 54Ibid.
55. 5517-001473 v Unica Insurance Inc., 2017 CanLII 69462 (ON LAT).
56. 56E.L. v Unica Insurance Inc., 2019 CanLII 130407 (ON LAT) at paragraph 24.
57. 57Based on the clinical notes and records of October 23, 2019.
58. 58Of October 4, 2019.