Citation: Baird v. Intact Insurance, 2023 ONLAT 21-014395/AABS

Licence Appeal Tribunal File Number: 21-014395/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:

Robert Baird

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Ronald Davidson, Counsel

For the Respondent:

Devon McIntyre, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Robert Baird (the “applicant”) was involved in an automobile accident on November 6, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Intact Insurance (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute 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 Minor Injury Guideline (“MIG”) limit?

2. Is the applicant entitled to $1,152.50 for physiotherapy services, proposed by Bowmanville Physiotherapy in a treatment plan (“OCF-18”) dated October 8, 2020?

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

RESULT

3The applicant sustained a predominantly minor injury as a result of the accident. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18 is reasonable and necessary is unwarranted. Further, the applicant is not entitled to interest.

ANALYSIS

The Minor Injury Guideline

9The 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.

10Section 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.

11The applicant submits that he should be removed from the MIG as he has developed chronic pain in his back, neck, and shoulders, and that he has depression and anxiety as a result of the accident.

12The respondent submits that the applicant was involved in a subsequent accident on February 5, 2018, which reaggravated his symptoms from this accident. Further, the applicant has failed to demonstrate that he suffers from chronic pain syndrome or chronic pain that causes a functional impairment, and as such his injuries are captured within the MIG.

The applicant has not established chronic pain warranting removal from the MIG

13I find that the applicant has not met his evidentiary onus that he suffers from a chronic pain condition as a result of this accident.

14The records of PT Health demonstrate that the applicant was involved in a subsequent accident on February 5, 2018, which reaggravated his symptoms from this accident as noted by Rebecca Pucci, registered physiotherapist. There was also an Application for Accident Benefits (“OCF-1”) for the subsequent accident in the records of PT Health. I also agree with the respondent that the records of PT Health demonstrate that the applicant was making improvement to his range of motion, strength, and overall pain level prior to being involved in the subsequent accident, as indicated in the clinical note and record of Ms. Pucci, dated February 23, 2018. Moreover, Ms. Pucci noted that the subsequent accident had aggravated the applicant’s cervical pain, and thoracic pain and increased his pain levels to 7/10 and 10/10.

15The assessment report of Mr. Jeffers, registered physiotherapist, dated October 20, 2020, is unhelpful, as he does not advise which accident the applicant is being examined for. Further, while I acknowledge, Mr. Jeffers noted that the applicant had significant difficulty with activities of daily living around the house, it was noted that he was still able to do his daily activities and has been able to work his regular hours and duties without any concern.

16While I acknowledge Dr. Ackloo, the applicant’s current family physician, in her medical record, dated March 18, 2019, concluded that the applicant sustained an injury that has led to an impairment in his physical function, it does not appear that she was aware of the subsequent accident. There is no mention of the subsequent accident in Dr. Ackloo’s report, and it’s not clear whether the applicant advised of this. Moreover, Dr. Ackloo noted that she did not have possession of the records of PT Health while preparing her report. As such, I find Dr. Ackloo’s report unpersuasive. In my view, if Dr. Ackloo had the records of PT Health, which noted the subsequent accident, she may have changed her opinion that the subject accident resulted in pain that will continue chronically and caused functional impairments.

17In addition, Dr. Ackloo noted that the applicant’s pain affected his ability to complete his instrumental activities of daily living which include: shovelling the snow, yard work, and woodworking, and that the applicant would not be able to work longer hours or extend his employment duties beyond his current role; however, I am not persuaded that these functional limitations were necessarily caused by this accident. The applicant has failed to refer me to any evidence that demonstrates that the applicant had chronic pain prior to being involved in the subsequent accident on February 5, 2018. The evidence that is before me indicates that the applicant was making improvement and progress before being involved in the subsequent accident.

18I agree with the respondent that the applicant’s failure to address his subsequent accident has resulted in a complete lack of any evidence to either connect or distinguish any symptoms he may have continued to experience after February 5, 2018, to those from the subject accident. Further, it appears that the applicant did not report this subsequent accident to his family physician, Dr. Kennedy or Dr. Ackloo or section 44 assessor, Dr. Neetan Alikhan, general practitioner (“GP”). As the applicant has failed to address if his current condition is a result of the subject accident or his subsequent accident, I find that he has not established that he suffers from chronic pain as a result of this accident, that would warrant removal from the MIG.

19The onus is on the applicant to prove on a balance of probabilities and not on the respondent to disprove. While I understand, the applicant states that the IE report of Dr. Alikhan, dated July 15, 2021, is deficient, the applicant must still point me to his own evidence and argument that is then potentially further supported by any alleged failings of the respondent. Relying on alleged weaknesses in the respondent’s evidence alone is insufficient. Moreover, while I note that the applicant advised Dr. Alikhan that he had pain, numbness, and tingling that radiated from his back down to his legs and feet, he has not referred me to any evidence that demonstrates that he has radiculopathy as a result of the accident. Further, Dr. Alikhan conducted objective testing, such as the Spurling’s Maneuver which was negative bilaterally for radiculopathy.

20On a balance of probabilities, I find that the applicant has not met his burden of proof to establish that he sustained chronic pain as a result of this accident which would warrant removal from the MIG.

The applicant does not suffer from psychological injuries which would remove him from the MIG

21I find that the applicant has not provided sufficient and compelling evidence of a psychological impairment that would warrant his removal from the MIG for the following reasons.

22Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.

23The applicant submitted that he had depression and anxiety, but he failed to provide any explanation or reference to any legal framework on why this would warrant removal from the MIG. An applicant cannot simply submit evidence and leave it up to the Adjudicator to connect the dots and make his case. The applicant must explain why the evidence supports his case. Notwithstanding the lack of guidance in the applicant’s submissions, I find that upon a review of the evidence before me that the applicant has not met the burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of a psychological impairment.

24While I acknowledge that the clinical note and record of Dr. Kennedy, dated November 9, 2017, noted that the applicant had mild anxiety while driving, he was not referred for psychological treatment, prescribed medication, nor diagnosed with a psychological impairment. It appears that beyond November 9, 2017, the applicant did not complain of any psychological symptoms to either Dr. Kennedy or Dr. Ackloo.

25I have not been directed to any evidence that demonstrates that the applicant has a psychological impairment and not just psychological symptoms or sequalae arising from the soft tissue injuries. While the applicant submits that he has depression from this accident, he did not refer me to any evidence to support his submissions. It is well-settled that submissions do not constitute as evidence.

26In conclusion, the applicant has not presented evidence that satisfies me on a balance of probabilities that his psychological symptoms are anything more than subclinical or that his injuries are not predominantly minor.

OCF-18, dated October 8, 2020 and Interest

27Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed OCF-18 as the full MIG limits have been exhausted.

28Likewise, interest is only payable on overdue payment of benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to the disputed OCF-18, no payments are overdue, and thus no interest is payable.

ORDER

29The applicant sustained a predominantly minor injury as a result of the accident. As the limits have been fully exhausted, he is not entitled to payment for the OCF-18s in dispute or interest. Thus, the application is dismissed.