Citation: Hibbert v. Co-operators General Insurance Company, 2022 ONLAT 20-006668/AABS

Licence Appeal Tribunal File Number: 20-006668/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:

Keyvon Hibbert

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Mireille Dahab, Counsel

For the Respondent: Kathleen O'Hara, Counsel

HEARD: By way of written submissions

BACKGROUND

1Keyvon Hibbert ("the applicant") was involved in an automobile accident on May 2, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") after his claims for benefits were denied by Co-operators General Insurance Company, ("the respondent").

2The respondent denied the applicant’s claims, including treatment for: chiropractic services, psychological services, physiotherapy services, psychological assessment, and concussion assessment 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

3The applicant submits that his injuries fall outside of the MIG because of his radicular symptoms, psychological injuries, chronic pain, an eye injury, and a concussion.

4If the applicant’s position is persuasive then I must address if the chiropractic services, psychological services, physiotherapy services, psychological assessment, and concussion assessment are reasonable and necessary pursuant to the Schedule.

5If the respondent’s position is persuasive, 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 the benefits claimed, nor interest.

6The respondent raised two preliminary issues in its substantive hearing submissions. These issues must be addressed prior to a determination of the substantive issues previously identified.

PRELIMINARY ISSUES

7The respondent raised the following preliminary issues:

i. Should the applicant’s written submissions in excess of the 20-page limit be excluded from the record?

ii. Should Dr. Steiner’s Report dated February 11, 2021 ("Dr. Steiner’s Report") be excluded from the record?

SUBSTANTIVE ISSUES

8The issues to be determined for the purposes of this hearing are as follows:

i. 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?

ii. Is the applicant entitled to $4,270.88 for chiropractic services recommended by Novo Medical Services Inc., in a treatment plan ("OCF-18"), dated May 14, 2019?

iii. Is the applicant entitled to $3,249.08 for active and passive rehabilitation recommended by Novo Medical Services Inc., in an OCF-18 dated January 3, 2020?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Novo Medical Services Inc., in an OCF-18 dated June 6, 2019?

v. Is the applicant entitled to $3,627.26 for a psychological assessment/treatment recommended by Novo Medical Services Inc., in an OCF-18 dated August 2, 2019?

vi. Is the applicant entitled to $2,200.00 for a psychological re-assessment, recommended by Novo Medical Services Inc., in an OCF-18 dated February 13, 2020?

vii. Is the applicant entitled to $3,341.87 for psychological services recommended by Novo Medical Services Inc., in an OCF-18 dated June 16, 2020?

viii. Is the applicant entitled to $2,361.32 for physiotherapy services recommended by Novo Medical Services Inc., in an OCF-18 dated September 14, 2020?

ix. Is the applicant entitled to $2,200.00 for a concussion assessment recommended by Novo Medical Services Inc., in an OCF-18 dated June 25, 2020?

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

xi. Is the applicant entitled to interest on any overdue payment of benefit?

PRELIMINARY ISSUE 1: Page Limit of applicant’s submissions

9The respondent submits that the applicant exceeded the page limit as mandated in the previous Case Conference Report and Order released on December 24, 2020. The respondent submits that as a result of the applicant breaching the previous Order, I should not consider any submissions beyond page 20. The respondent did not address how they were prejudiced by the applicant exceeding the page limit. The applicant submits that he was compliant with the Tribunal’s Order because his submissions did not start until page 5 and ended on page 23.

10The parties agreed on consent during the case conference to set the page limit for the initial submissions to 20 pages. Moreover, the previous Order clearly stated that the hearing adjudicator may not consider submissions which exceeded the page limit.

11I disagree with the applicant that he was compliant with the page limit set out as pages 1-4 contain an overview and discusses the issues in dispute and pages 24-27 contained the Order being sought and footnotes, which I find to be inclusive of the page limit. The Order was clear that the evidence and case law would not be inclusive of the page limit. In accordance with Rule 3.1(a) of the Tribunal’s Common Rules of Practice and Procedure ("the Rules"), I must ensure the Rules are liberally interpreted to ensure procedural fairness to both parties, and the Tribunal.

12It is evident that the applicant has failed to comply with the page limits, thereby breaching the previous Order. However, the respondent has failed to demonstrate any prejudice that it sustained as a result. When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter. As such, I will not exclude the applicant’s submissions as requested by the respondent. However, I remind the applicant that non-compliance with Tribunal Orders is strongly discouraged, and it was solely within my prerogative to permit these additional submissions into the record.

PRELIMINARY ISSUE 2: EXCLUSION OF DR. STEINER’S REPORT, DATED FEBRUARY 11, 2021

13The respondent submits that the applicant served Dr. Steiner’s Report beyond the January 29, 2021 deadline to exchange documents. As a result of the late disclosure, the respondent submits it had insufficient time to obtain its own report. As such, the respondent requests that Dr. Steiner’s Report be excluded as evidence from this hearing. The applicant submits that Novo Medical Services Inc., directly served the respondent with Dr. Steiner’s Report. Further, the applicant submits that there is no prejudice to the respondent and if there was, it should have brought a motion. Finally, the applicant submits this report does not contain a new diagnosis, thus there is no prejudice to the respondent.

14Tribunal 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 the witnesses to give evidence, without the consent of the Tribunal. The Tribunal’s Order was clear that the deadline for exchange of documents was January 29, 2021, which was made on consent by both parties. I note that the Order does not expressly list Dr. Steiner’s Report, in the list of productions to be exchanged by that date. However, in the respondent’s correspondence of November 25, 2020, it was clear that if the applicant was going to proceed with an addendum report by Dr. Steiner, that the respondent would require the report in advance.³ This would permit the respondent to decide whether to proceed with an addendum report of its own. This correspondence identified the potential prejudice to the respondent and clarified that any addendum reports would be exchanged within the production deadline.

15Clearly, late service of this report has prejudiced the respondent. I have reviewed the report and it disputed the findings of s.44 assessor, Dr. G. Dancyger with respect to the validity testing conducted by him. If this report was allowed, it would result in prejudice to the respondent as they have not had an opportunity to conduct a responding assessment with Dr. Dancyger to determine his opinion with respect to Dr. Steiner’s Report.

16I am persuaded that the first time the respondent’s representative was served with Dr. Steiner’s Report, was when the applicant served his initial submissions. I disagree with the applicant’s submission that Dr. Steiner’s Report was served on February 12, 2021. This service of the report was completed by Novo Medical Services Inc., not the applicant, and was served on the respondent and not the representative for the respondent. The applicant did not provide any evidence to support this submission and even if he did, I find it inadequate for the following three reasons. Firstly, the applicant’s representative was aware of the identity of the respondent’s representative and that it required the report in advance of the deadline, and she still chose not to deliver the report directly to respondent counsel. Secondly, the report was still served beyond the production deadline of January 29, 2021. Thirdly, I disagree that the respondent should have the onus to bring a motion to extend the deadline for submissions to review the addendum report. The applicant was clearly in breach of the previous Order, and he should have filed a Notice of Motion to address potential late service of Dr. Steiner’s Report. I also find the prejudice brought to the respondent could not have been remedied with an adjournment as the applicant served the report with his initial submissions and this gave no opportunity for the respondent to seek an addendum report when their submissions were due shortly thereafter. As such, Dr. Steiner’s Report, will be excluded as evidence for this hearing.

RESULT

17With respect to the preliminary issues raised by the respondent, I will not be excluding the applicant’s submissions beyond the page limit. However, I find that Dr. Steiner’s Report, will be excluded as evidence for the purposes of this hearing.

18I find that the applicant sustained predominately minor injuries because of this accident, and that he is subject to the MIG and the $3,500.00 funding limit. The applicant has reached the $3,500.00 funding limit on medical benefits for a minor injury. Thus, an analysis on the disputed treatment and assessment plans is not required.

19The applicant is not entitled to interest on any overdue payments of benefits, nor is he entitled to an award.

ANALYSIS

The MIG

20I find that the applicant sustained predominately minor injuries as a result of this accident, for the reasons outlined below.

21The 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."

22Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. An applicant may be entitled to 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 on a balance of probabilities that his injuries fall outside of the MIG and he is therefore entitled to coverage beyond the $3,500.00 cap.⁴

23The applicant submits that he should be removed on the MIG because he has radicular symptoms, psychological injuries, chronic pain, an eye injury, and a concussion.

24The respondent submits that the applicant is not credible and that his statements should not be relied upon by the Tribunal as accurate evidence of his accident-related injuries or functional limitations.

Credibility Concerns with Respect to the Applicant

25The respondent has raised legitimate credibility concerns and as such, I place less weight on the applicant’s self-reporting to all assessors, for the reasons outlined below.

26I acknowledge that the applicant withdrew his entitlement to Income Replacement Benefits ("IRB") as an issue in dispute, however, I have considered the applicant’s income tax returns with respect to credibility. I find this evidence relevant as the respondent has raised concerns with respect to credibility. The income tax returns post-accident for 2019⁵ demonstrate that the applicant was earning more money post-accident which is inconsistent with his self-reporting to the following assessors: Dr. N. Belyakova, Dr. L. Steiner, Dr. R. Zabieliauskas, Dr. V. Basile and Dr. G. Dancyger. He advised Dr. Belyakova, psychologist, on June 12, 2019, that he had not returned to work following the accident.⁶ He advised Dr. Dancyger, psychologist, on August 27, 2019, that he remained off work up to that time because of his pain.⁷ On March 19, 2020, he advised Dr. Steiner, psychologist, that he was off work for 1 month and then returned on modified duties.⁸ He further advised Dr. Zabieliauskas, medical practitioner, on September 3, 2019, that he subcontracted all of his work since the accident and has not been working because of pain.⁹ He further advised Dr. Basile, neurologist on October 15, 2020, that following this accident he was unable to continue his job as a superintendent and started working as a supervisor on a part time basis.¹⁰ This self-reporting of the applicant that he missed a substantial period from work and that he returned on a part time basis does not coincide with the tax returns for 2019 wherein he was earning more income post-accident.

27There are also inconsistencies with respect to the applicant advising numerous s.25 and s.44 assessors that he lost consciousness when the ambulance call report states that he denied that he lost consciousness and he could recall all events.¹¹ I further acknowledge that the report states he was unable to ambulate on the scene, however the applicant has failed to demonstrate that this is a result of him losing consciousness.¹² There are also inconsistencies with respect to the applicant advising Dr. Steiner in 2020 that he recalled how the accident occurred meanwhile he advised Dr. Belyakova, Dr. Dancyger, Dr. Angel, and Dr. Zabieliauskas that he could not recall how the accident occurred. The applicant’s lack of memory is simply not supported by the ambulance call report and the records of Sunnybrook Hospital.

28The respondent had retained Larrek Investigations to conduct surveillance on the applicant. The surveillance revealed that on March 5, 2020, he was engaging in work activities such as: placing tiles, using a table saw, using a broom, walking in the show room, repairing steps, bending down to the ground on his knees, bending over at the waist, cutting tiles, and attending First Class Flooring and Polytechnic Hardware Store.¹³ I acknowledge that the surveillance of the applicant was only for one day, however there are inconsistencies with respect to what the surveillance captured and his self-reporting to numerous assessors. He advised Dr. Steiner on March 19, 2020, that he delegated weight bearing activities and strenuous labour to others.¹⁴ He further advised Dr. Steiner that he had returned to his occupation on a reduced workload and lighter tasks.¹⁵ He then advised Dr. Basile on October 15, 2020, that he was not performing his pre-accident employment tasks and worked as a supervisor.¹⁶ Based on the surveillance conducted, it appears he is doing physical tasks that required repeated walking and bending and was not supervisory in nature. As such, I find that there are legitimate concerns with respect to the applicant’s credibility and place less weight upon his self-reporting to assessors.

The Applicant is not Removed from the MIG on the Basis of Radiculopathy

29The applicant has failed to establish on a balance of probabilities that he suffers from radiculopathy as a result of the accident.

30To support his position, the applicant relies on the neurological evaluation conducted by Dr. Basile, dated October 15, 2020. The applicant advised Dr. Basile that he had numbness, tingling and pins and needle sensations in his right arm and right hand.¹⁷ He also had weakness in his right hand.¹⁸ He also presented with radicular symptoms down his legs and numbness and tingling in the posterior aspects of his glutes which extended to the dorsal and plantar aspect of his feet.¹⁹ Dr. Basile opined that there was an indication of a likely right-sided C8 cervical radiculopathy and left-sided L5 greater than S1 lumbosacral radiculopathy. As such, Dr. Basile did not diagnose the applicant with radiculopathy as a result of the accident but opined that it was likely.²⁰ I find that this is inadequate to remove him from the MIG because it is not a definite diagnosis of radiculopathy.

31The applicant relies on the Tribunal’s decision of 16-000084 v. State Farm Mutual Automobile Insurance Company²¹ to support his position that radicular symptoms warrant rehabilitation beyond the MIG. In the decision cited, the Tribunal was determining whether the applicant had a cervical radiculopathy injury which would have warranted removal from the MIG.

32I find 16-000084 v. State Farm Mutual Automobile Insurance Company persuasive though I find it does not assist the applicant’s case. First, I disagree that symptoms of radiculopathy are sufficient to remove the applicant from the MIG and instead find that there must be a diagnosis of radiculopathy supported by objective testing to remove the applicant from the MIG. Furthermore, the Tribunal in 16-000084 found that while there was a diagnosis of cervical radiculopathy, it was unpersuasive because of lack of objective testing. The Tribunal further determined that the applicant concluding that he had cervical radiculopathy based on his self-reporting and a s.25’s assessment report did not meet his burden of proof, particularly where the diagnosis in that case did not have objective testing to support it. Here, without objective investigations or resulting diagnosis, I am not persuaded that the applicant has radiculopathy which would remove him from the MIG. I also place less weight on the clinical notes and records of Novo Medical Services²² where an unidentified individual completed a checklist which indicated that the applicant lost sensation in his finger/left hand following this accident. I am not persuaded by this evidence as there is no objective testing conducted to confirm the applicant’s subjective complaints. Moreover, Dr. Basile advised that an MRI of the cervical and lumbosacral spine and EMG testing of the right upper extremity and left lower extremity should be conducted to determine whether the applicant had cervical radiculopathy and S1 lumbosacral radiculopathy.²³ Despite these recommendations, the applicant has failed to produce any evidence of objective testing to determine whether he had radiculopathy in his cervical spine and lumbosacral spine.

The Applicant Does Not Suffer from Psychological Injuries Which Would Remove Him from the MIG

33The applicant has failed to establish on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.

34Psychological injuries, if established, fall outside the MIG, because the MIG only governs "minor injuries", and the prescribed definition does not include psychological impairments.

35The applicant relies on the following documentation to support that he has psychological injuries that will remove him from the MIG:

A. Psychological Assessment of Dr. Belyakova, dated June 24, 2019, where he was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood.²⁴ The only validity testing conducted by Dr. Belyakova was the Rey 15 Item Test.²⁵ The Rey 15 Item Test is a validity measure designed to assess the possible amplification of memory deficits and detected no exaggeration of memory difficulties.²⁶

B. Psychological Reassessment by Dr. Steiner dated March 19, 2020 where he was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia- Situational Phobia.²⁷ Dr. Steiner noted that the applicant’s honesty was questioned by Dr. Dancyger.²⁸ Dr. Steiner opined that during this assessment, the applicant did not over-endorse items in the clinical interview or the written questionnaires.²⁹ Despite the concerns raised by Dr. Dancyger, Dr. Steiner only conducted one validity testing, the Rey 15 Item Test,³⁰ the results of which were in the valid range and his self-reporting was likely an accurate depiction of his problems.³¹

C. Psychological pre-screening report dated June 4, 2019 by Dr. N. Isgandarova and Dr. Belyakova where a provisional diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational was made.³²

36The respondent relies on the s.44 psychological assessment of Dr. Dancyger, dated September 9, 2019. The applicant advised Dr. Dancyger that at the previous psychological assessment, he only answered questions, did not complete any tests and described the experience as annoying.³³ He further advised that he stayed positive and did not report any emotional issues that were of a concern to him at that time.³⁴ As a result of the credibility concerns, I have placed limited weight on this self-reporting.³⁵ Further, Dr. Dancyger conducted 3 validity testing: Personality Assessment Inventory ("PAI"); Structured Inventory of Malingered Symptomatology ("SIMS"); and Green’s Non-Verbal Medical Symptom Validity Test ("NV-MSVT),³⁶ which I discuss in greater detail below. Given the credibility concerns I have about the applicant and the limited validity testing conducted in the applicant’s evidence compared to Dr. Dancyger’s multiple validity testing, I prefer Dr. Dancyger’s report over the evidence of the applicant.

37The respondent also provided the clinical notes and records of Dr. Dancyger which provided helpful information on the validity testing that was used and the raw data with respect to NV-MSVT. The applicant’s validity scales on the PAI showed that he had attempted to portray himself in an especially negative matter and this could be due to careless responding, extremely negative self-presentation or malingering.³⁷ As a result, Dr. Dancyger concluded that the results were invalid and a clinical interpretation of the PAI was not possible.³⁸ The applicant’s result on the SIMS, revealed that he had a significant degree of symptom exaggeration, especially of atypical symptoms of neurologic and memory impairment.³⁹ The applicant’s score on the NV-MSVT showed poor effort and an exaggeration of his cognitive difficulties. Further, Dr. Dancyger opined that the results showed a discrepancy between his self-report and his observed behaviors which raised issues of reliance on his self-reporting in the assessment.⁴⁰ Dr. Dancyger concluded that as a result of his psychological testing he did not find any valid and objective evidence of a significant and diagnosable accident-related psychological disorder.⁴¹ Dr. Dancyger provided the raw data in his clinical notes and records for NV-MSVT which illustrated that the applicant scored 95% lower than a sample of children with Fetal Alcohol Spectrum Disorder.⁴² Dr. Dancyger opined that it was unlikely that someone would score this low unless either they made a poor effort or were suffering from dementia.⁴³ The applicant has not provided any evidence that he suffers from dementia to otherwise explain his low score with regard to this method of testing.

38I acknowledge that the applicant advised Dr. Belyakova and Dr. Steiner of the following psychological symptoms: feeling shocked and confused; being depressed; having anxiety; difficulty with sleeping; low energy; decreased appetite; difficulty with driving and travelling as a passenger; reduced memory; intrusive and ruminative thoughts, irritability; and having concentration difficulties. I further acknowledge the applicant underwent psychological treatment with social worker, Ms. Massey.⁴⁴ However, due to my concerns of the applicant’s credibility and the applicant failing 3 different validity testing, I am not persuaded that he has suffered from a psychological impairment as a result of this accident. I further find that the lack of psychological complaints to an OHIP physician undermines the diagnosis provided by Dr. Belyakova and Dr. Steiner. I acknowledge the applicant’s submission that his family physician retired shortly before this accident and that he would raise any psychological concerns with his treating clinic, Novo Medical Services Inc. Also, he submits that because of the Covid-19 pandemic, his access to medical care was scarce and unattainable. However, I still find the lack of reporting to any OHIP Physicians to undermine the applicant’s s.25 reports. Even during the Covid-19 pandemic, walk-in clinics and hospitals remained open and the applicant could have sought the medical attention for any psychological concerns.

The Applicant is Not Removed from the MIG on the Basis of Chronic Pain

39I find that the applicant has failed to prove that on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain.

40The applicant has failed to demonstrate that he has been diagnosed with chronic pain as a result of the accident, although I recognize a diagnosis is not required to be removed on the MIG on this basis. Dr. Basile did not diagnose the applicant with chronic pain syndrome, what he stated was that it was likely that the applicant’s physical condition may have converted to chronic pain syndrome. Further, I place little weight upon Dr. Steiner’s opinion that the applicant suffers from debilitating chronic pain. The applicant has failed to adduce any objective evidence of a functional impairment or disability that would warrant removal from the MIG. I acknowledge the applicant has advised numerous s.25 and s.44 assessors that this accident has impacted many aspects of his life, including his employment and housekeeping tasks. However, as a result of credibility concerns, I have placed little weight on the applicant’s self-reporting, as there is insufficient objective evidence to support his claims.

41I also prefer the report of Zabieliauskas, s.44 assessor, dated September 3, 2019. Dr. Zabieliauskas concluded that the applicant sustained a cervical strain (WAD II), a thoracolumbar strain and a right patellofemoral strain from this accident.⁴⁵ Dr. Zabieliauskas’s opinion was based on the medical evidence available and a physical examination. The physical examination conducted by Dr. Zabieliauskas revealed the applicant exhibited good range of motion in all areas and there was no muscle spasm in any area.⁴⁶ I acknowledge that Dr. Zabieliauskas’s physical examination revealed minor tenderness, but this does not detract from my finding that he is not removed from the MIG as a result of chronic pain. I find that the applicant has failed to discharge his onus and demonstrate that he should be removed from the MIG as a result of chronic pain.

The Applicant is not Removed from the MIG on the Basis of an Eye Injury or Neurological Injuries

42The applicant has failed to demonstrate on a balance of probabilities that he has a concussion or post-concussion syndrome as a result of the accident. Further, he has failed to demonstrate that he suffered from an eye injury as a result of the accident. As such, he is not removed from the MIG on this basis.

43Dr. Basile, neurologist, in his report, dated October 15, 2020, diagnosed the applicant with post-concussive syndrome consistent with a traumatic brain injury.⁴⁷ Dr. Basile further opined: he had features of posttraumatic headaches; there was an indication of a likely right-sided C8 cervical radiculopathy and left sided L5 greater than S1 lumbosacral radiculopathy; he had ongoing vertigo; he had musculoskeletal soft tissue injuries in his neck and back; and he likely had a chronic pain syndrome.⁴⁸ Dr. Basile did not review the ambulance call report which would have demonstrated that the applicant did not lose consciousness following this accident.⁴⁹ The physical examination conducted by Dr. Basile did not reveal any abnormal results. Moreover, Dr. Basile’s opinion that the applicant was unlikely to engage in activities which involved prolonged walking, standing or bending is contradictory to the surveillance conducted by the respondent.⁵⁰

44I prefer the report of s. 44, Dr. M. Angel, neurologist, dated October 22, 2020. Despite the applicant’s submission, Dr. Angel did not diagnose the applicant with a mild closed head injury. Dr. Angel stated that the applicant may have a mild closed head injury because the applicant advised he had a gap in his memory.⁵¹ Dr. Angel was unable to review the ambulance call report because it was illegible. Dr. Angel conducted objective neurological testing which showed no evidence of lateralizing peripheral nervous or central nervous system disorder.⁵² Based on objective neurological testing, Dr. Angel concluded that he was unable to determine any accident-related neurological impairment. I agree with the respondent that if Dr. Angel had been able to review the ambulance call report, he would have realized that the applicant did not lose consciousness at the time of the accident and was fully aware of the details surrounding the accident. I place no weight on the applicant’s self-reporting of having gaps in his memory from this accident due to credibility concerns; he failed a number of validity testing conducted by Dr. Dancyger; and he was able to recall the details of the accident when he spoke with Dr. Steiner in March of 2020.

45I place no weight on the diagnosis of a concussion by Dr. A. Alechina, chiropractor. Dr. Alechina is a chiropractor and as such, this diagnosis was outside the scope of his practice. I acknowledge the applicant is relying on the authority of HS v. Aviva Insurance Canada wherein the Tribunal commented that a diagnosis of a concussion can serve to corroborate the symptomatology that was reported by the applicant.⁵³ In the matter cited, the facts are distinguishable as there were no credibility concerns with the applicant’s self-reporting, her self-reporting was corroborated by the records of her family physician and most importantly, there was a diagnosis of a concussion made at the hospital following the accident. In fact, the Tribunal found the diagnosis of a concussion to be significant and compelling evidence that she sustained a concussion, and not the chiropractor’s records.⁵⁴ In this matter, there is no diagnosis of a concussion made by Sunnybrook Hospital shortly after the accident and there are legitimate concerns with respect to the applicant’s credibility. As such, I find that the applicant has failed to discharge his evidentiary onus on a balance of probabilities that he sustained a concussion or post-concussion syndrome which would remove him from the MIG.

46The applicant advised Sunnybrook Hospital that he had glass in his eyes following the accident, however the records demonstrate that no glass could be located, and the examination of his eyes were normal.⁵⁵ As such, I find that the applicant has failed to demonstrate on a balance of probabilities that he should be removed from the MIG due to an eye injury.

47As I have found the applicant to be in the MIG and the $3,500.00 limit has been exhausted, I do not need to consider whether any of the OCF-18s in dispute are reasonable and necessary.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

48The applicant submits he is entitled to an award because the respondent failed to review the medical brief in its entirely, including additional medicals that were provided. The applicant further submits that the respondent relied solely on the report of Dr. Dancyger which was flawed and as such the respondent unreasonably withheld or delayed payments to the applicant.

49Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 percent of the amount in which the person was entitled.

50As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

INTEREST

51Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

ORDER

52For the reasons set above, I find that the applicant sustained predominantly minor injuries as defined under the Schedule. He is not entitled to the benefits claimed, interest, or an award.

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. 3Respondent’s Submissions, Part 6.
4. 4Scarlett v. Belair, 2015 ONSC 3635 para.24 (Div. Ct.).
5. 5Respondent’s Submissions, Part 6.
6. 6Applicant’s Document Brief, Tab 19.
7. 7Applicant’s Document Brief, Tab 30.
8. 8Applicant’s Document Brief, Tab 28.
9. 9Applicant’s Document Brief, Tab 15.
10. 10Applicant’s Document Brief, Tab 14.
11. 11Respondent’s Submissions Part 1.
12. 12Ibid.
13. 13Respondent’s Submissions, Part 6.
14. 14Applicant’s Document Brief, Tab 28.
15. 15Applicant’s Document Brief, Tab 10.
16. 16Applicant’s Document Brief, Tab 14.
17. 17Ibid.
18. 18Ibid.
19. 19Ibid.
20. 20Ibid.
21. 212016 CanLII 67137 (ON LAT).
22. 22Applicant’s Document Brief, Tab 10.
23. 23Applicant’s Document Brief, Tab 14.
24. 24Applicant’s Document Brief, Tab 19.
25. 25Ibid.
26. 26Ibid.
27. 27Applicant’s Document Brief, Tab 28.
28. 28Ibid.
29. 29Ibid.
30. 30Ibid.
31. 31Ibid.
32. 32Applicant’s Document Brief, Tab 17.
33. 33Applicant’s Document Brief, Tab 30.
34. 34Ibid.
35. 35Ibid.
36. 36Ibid.
37. 37Ibid.
38. 38Ibid.
39. 39Ibid.
40. 40Ibid.
41. 41Ibid.
42. 42Respondent’s Submissions, Part 2.
43. 43Ibid.
44. 44Applicant’s Document Brief, Tab 21.
45. 45Applicant’s Document Brief, Tab 15.
46. 46Ibid.
47. 47Applicant’s Document Brief, Tab 14.
48. 48Ibid.
49. 49Ibid.
50. 50Ibid.
51. 51Applicant’s Document Brief, Tab 35.
52. 52Ibid.
53. 532019 CanLII 83893 (ON LAT).
54. 54Ibid, at para 30.
55. 55Respondent’s Submissions, Part 1.