Citation: Singh v. Belair Insurance Company, 2023 ONLAT 20-011377/AABS

Licence Appeal Tribunal File Number: 20-011377/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:

Goopaul Singh

Applicant

and

Belair Insurance Company

Respondent

DECISION

ADJUDICATOR:

Teresa Walsh

APPEARANCES:

For the Applicant:

Micheal Lee, Counsel

For the Respondent:

Samara Maharaj, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1The applicant, Goopaul Singh, was involved in an automobile accident on February 15, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”)¹ from Belair, the respondent.

2The applicant applied for medical and rehabilitation benefits that were denied by the respondent because it determined his injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and therefore subject to treatment 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”).

ISSUES

3The issues to be decided in this 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 receive the following medical benefits proposed by Mackenzie Medical Rehabilitation Centre:

a. $3,696.50 for physiotherapy, in a treatment plan dated February 21, 2018?

b. $112.82 ($1,300.00 submitted less $1,187.18 approved) for physiotherapy, in a treatment plan dated May 7, 2018?

c. $1,977.05 for physiotherapy, in a treatment plan dated June 18, 2018?

d. $1,384.70 for physiotherapy, in a treatment plan dated August 1, 2018?

e. $2,569.40 for physiotherapy, in a treatment plan dated February 1, 2019?

f. $87.19 ($200.00 submitted less $112.81 approved) for a disability certificate dated February 21, 2018?³

g. $87.19 ($200.00 submitted less $112.81 approved) for a disability certificate dated February 1, 2019?

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

RESULT

4I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted,⁴ it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is also not entitled to interest. The application is dismissed.

Preliminary Procedural Issue

5The respondent submits that contrary to the parties’ agreement that documents be exchanged by November 5, 2021, the applicant first disclosed certain documents with his January 31, 2022 hearing submissions. The respondent argues that as a result, these documents should be excluded from evidence and/or an adverse inference should be drawn against the applicant.

6It appears from the record that most of the documents in question were produced to the respondent on November 16, 2021, 11 days after the agreed-upon date. The only exception is a disability certificate dated September 22, 2015, related to an August 16, 2015 motor vehicle accident involving the applicant. The applicant submits that this disability certificate was not produced until January 31, 2022 due to inadvertence.

7Rules 9.2 and 9.4 of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”) require all parties to comply with their prescribed disclosure obligations or as otherwise ordered by the Tribunal and further provide that a party may not rely on any late-disclosed evidence without the Tribunal’s consent.

8I note that save for the disability certificate, the respondent had about 88 days to review and comment in its hearing submissions on the applicant’s documents. Further, the respondent has not provided any specific evidence of prejudice resulting from the 11-day delay in production and I find none.

9Having considered the Rules and the principles of procedural fairness, I accordingly exercise my discretion to order that all but the September 22, 2015 disability certificate be included as evidence for this hearing. Information contained in the excluded disability certificate is mostly captured in an earlier disability certificate and in subsequent documents produced by the applicant. Excluding this document does not prejudice the applicant meaningfully but does serve as a reminder to the parties about the importance of complying with production deadlines.

ANALYSIS

The MIG

10As set out below, the applicant has not established on a balance of probabilities that he suffers from any pre-existing condition preventing maximal recovery from his accident-related injuries within the MIG-imposed cap.

11The 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.

12Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. Pursuant to s. 18(2) of the Schedule, 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.

13It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁵

Pre-existing Condition

14As noted above, section 18(2) of the Schedule provides in part that insured persons with minor injuries from an accident who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to be exempted, the applicant must provide compelling evidence meeting the following requirements:

(i) there was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) the pre-existing condition will prevent maximal recovery from the minor injury if the applicant is subject to the $3,500.00 limit on treatment costs under the MIG.⁶

15The standard for excluding an impairment on the basis of a pre-existing condition 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.

2015 Accident

16The applicant asserts that the neck, back and right shoulder injuries sustained in the subject accident were exacerbated by injuries resulting from a prior motor vehicle accident of August 16, 2015 (the “2015 Accident”).

17None of the diagnostic imaging of the applicant’s neck, right shoulder, chest or spine taken on the day of the 2015 Accident or about three weeks later, showed any acute fractures.

18An ultrasound of the applicant’s right shoulder taken on September 3, 2015 indicated a small amount of fluid that might be related to bursitis”.⁷ Dr. K. Syed, an orthopedic specialist who saw the applicant in January 2016, agreed the applicant had bursitis and administered two cortisone injections to the applicant’s right shoulder to help with inflammation. Dr. Syed indicated that the applicant would follow up as needed.

19Records produced by the applicant show he engaged in three physiotherapy sessions only following the 2015 Accident – on August 20, 24 and 31, 2015.

20An October 22, 2015 treatment and assessment plan prepared for the applicant by a physiotherapist includes a complaint of radiculopathy (pinched nerve), which is stated to be “improving”.⁸

21For the period between February 2016 and January 2018, the applicant has not produced any treatment records, and in particular, any records evidencing ongoing treatment for a medical condition possibly related to the 2015 Accident, including bursitis and radiculopathy.

2018 Accident

22Following the subject motor vehicle accident of February 15, 2018 (the “2018 Accident”), the applicant attended a multidisciplinary medical facility, reporting pain in his neck, back and right shoulder. A doctor at the facility’s back clinic, noted the applicant demonstrated: “Full ROM at neck and L-spine”.⁹ An x-ray of the applicant’s lumbar spine that day indicted no evidence of an acute injury.

23The applicant also produced records of Mackenzie Medical Rehabilitation Centre (“Mackenzie”) in relation to the 2018 Accident. As part of an initial assessment of the applicant on February 21, 2018, Mackenzie chiropractor Dr. P. Somal described the applicant’s complaints of “tingling hands, numb, altering sensation in fingers, constant burning sensation down legs”.¹⁰ Dr. Somal added a reference to “rad” as part of his diagnosis and clinical impressions of back and right shoulder sprain/strain, with no further description or comment.¹¹ Dr. Somal assessed the applicant’s prognosis as “fair – good”.¹²

24Until August 22, 2018, the applicant attended Mackenzie for, among other things, chiropractic therapy, physiotherapy and massage therapy.

25Besides the above-referenced treatment records from February 15, 2018 and the records from Mackenzie, the applicant has produced no subsequent medical records for treatment he sought for injuries sustained in the 2018 Accident. In particular, the applicant has provided no medical evidence of a condition documented by a health practitioner prior to February 15, 2018 and preventing maximal recovery if the applicant is subject to injury treatment within the MIG.

26Dr. D. Mula, the respondent’s assessor, saw the applicant on three occasions and prepared five reports. As part of his initial report of April 23, 2018, Dr. Mula referenced the applicant’s statements as to being completely independent in activities of daily living and having achieved a complete recovery from the 2015 Accident.¹³

27In each of his reports prepared for this matter, Dr. Mula consistently opined that the applicant sustained a minor injury as a result of the 2018 Accident and that there continued “to be no compelling evidence of a pre-existing medical condition that would prevent the [applicant] from achieving maximal recovery…”¹⁴

28In his April 22, 2019 report, Dr. Mula attributed the applicant’s description of a six-month history of intermittent tingling in his hands to possible carpal tunnel syndrome, rather than to either the 2015 Accident or the 2018 Accident.¹⁵

29At the request of the respondent, the applicant was also seen for a job site evaluation report with physiotherapist Dawn Rodie. During this evaluation, the applicant acknowledged he had returned to work full-time on modified duties within two days of the 2018 Accident and had re-assumed his full work duties less than months later.¹⁶

30I have carefully considered the foregoing evidence, the parties’ submissions and the law. I agree with the respondent that the applicant has not provided compelling evidence of any pre-existing medical condition, documented by a health practitioner before the 2018 Accident, that has prevented him from achieving maximal recovery from his injuries if he is subject to treatment within the MIG limits. More particularly:

a. the few references to “radiculopathy” in the records, without any formal diagnosis of same, no medical opinion as to whether and if so how the condition is causally related to either the 2015 Accident or the 2018 Accident, or view of its impact on the applicant’s maximal recovery from the 2018 Accident, falls woefully short of compelling evidence;

b. there is no evidence at all that the applicant’s bursitis, diagnosed following the 2015 Accident, continued to be experienced by him leading up to and following the 2018 Accident;

c. the applicant’s failure to produce any physician treatment records for two relevant periods: February 2016 to January 2018 (as to his post-2015 Accident condition), and March 2018 forward (as to his post-2018 Accident condition), undermine the applicant’s arguments that a pre-existing medical condition was exacerbated by the 2018 Accident or that treatment within MIG limits following the 2018 Accident has prevented maximal recovery; and

d. reports prepared by Dr. Mula at the respondent’s request indicate there is no pre-existing medical condition preventing the applicant from achieving maximal recovery from his minor injuries sustained in the 2018 Accident.

31In keeping with the above, I also find the applicant has not established, on a balance of probabilities, that he has radiculopathy caused by the 2018 Accident alone. I therefore need not consider the applicant’s argument that, as radiculopathy falls outside the definition of “minor injury” in s. 3(1) of the Schedule, he is entitled to treatment for this condition beyond the limits prescribed by the MIG.

Medical Benefits

32Sections 14 and 15 of the Schedule provide that the insurer shall pay medical and rehabilitation benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical and rehabilitation benefits sought in a treatment plan are a reasonable and necessary expense incurred by the applicant as a result of the accident.

33The applicant bears the onus of establishing entitlement to a proposed treatment plan by proving it is reasonable and necessary on a balance of probabilities.¹⁷

34The disputed treatment plans here propose treatment outside the MIG framework to which I have determined the applicant is not entitled. As his impairments are within the MIG and as the $3,500.00 maximum for medical benefits available under the MIG has been exhausted, it is not necessary to determine if the disputed medical benefits are reasonable and necessary.

35Based on my finding that the applicant is not entitled to treatment outside the MIG framework, it is unnecessary for me to consider his argument that outstanding amounts of $87.19 for each of two disability certificates addressed in Issues 2(f) and (g) at paragraph [3] above should be paid, as the amounts claimed for same are reasonable and the respondent has provided no basis for the denials.

36The applicant had also submitted that the respondent’s failure to respond within 10 business days to the treatment plan listed under paragraph [3] Issue 2.(b) above as required by s. 38(8) of the Schedule, precludes the respondent from arguing that the MIG applies to the treatment plan. The applicant’s submission is incorrect. The evidence establishes that this treatment plan was responded to within 10 days of receipt¹⁸ and accordingly, s. 38(11) of the Schedule does not come into play.

Interest

37As there are no medical and rehabilitation benefits owing, no interest is payable.

CONCLUSION AND ORDER

38For the reasons outlined above, I find that:

1. The applicant sustained predominantly minor injuries as defined under the Schedule. It is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.

2. The applicant is accordingly not entitled to the following medical benefits proposed by Mackenzie Medical Rehabilitation Centre:

a. $3,696.50 for physiotherapy, in a treatment plan dated February 21, 2018;

b. $112.82 ($1,300.00 submitted less $1,187.18 approved) for physiotherapy, in a treatment plan dated May 7, 2018;

c. $1,977.05 for physiotherapy, in a treatment plan dated June 18, 2018;

d. $1,384.70 for physiotherapy, in a treatment plan dated August 1, 2018;

e. $2,569.40 for physiotherapy, in a treatment plan dated February 1, 2019;

f. $87.19 ($200.00 submitted less $112.81 approved) for a disability certificate dated February 21, 2018; and

g. $87.19 ($200.00 submitted less $112.81 approved) for a disability certificate dated February 1, 2019.

3. No interest is payable.

4. This application is dismissed.

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. 3This date differs from that provided in the Applicant’s Submissions, page 2, item 6 (February 23, 2018), but corresponds with the subject disability certificate, Respondent’s Document Brief, Tab 17, page 206.
4. 4Respondent’s Document Brief, Tab 36, pages 334 to 336, Statement of Benefits Letter dated August 30, 2021.
5. 5Scarlett v. Belair Insurance, 2015 ONSC 3635, (Div. Ct.) (“Scarlett”), paragraph 20.
6. 6O. Reg. 34/10, supra note 1 at page 5, heading 4, “Impairments that do not come within this Guideline”.
7. 7Ibid., at page 313, Ultrasound of the right shoulder dated September 3, 2015.
8. 8Applicant’s Document Brief, Tab 06-E, page 385 of pages 382 to 386, Treatment and Assessment Plan of Castle Oak Rehab Centre dated October 22, 2015.
9. 9Applicant’s Document Brief, Tab 06-G, page 409 of pages 406 to 411, Records of Dr. E.M.B. Issa dated February 15, 2018.
10. 10Applicant’s Document Brief, Tab 06-I, page 418 of pages 417 to 445, Records of Mackenzie Medical Rehabilitation Centre dated February 21 and March 7, 2018.
11. 11Ibid., at page 421.
12. 12Ibid.
13. 13Respondent’s Document Brief, Tab 8, pages 92 to 93 of pages 87 to 100, Physician Assessment Report of Dr. D. Mula dated April 23, 2018.
14. 14Respondent’s Document Brief, Tab 14, page 178 of pages 176 to 180, Physician Assessment Report of Dr. D. Mula dated June 19, 2019.
15. 15Respondent’s Document Brief, Tab 13, page 170 of pages 163 to 174, Physician Assessment Report of Dr. D. Mula dated April 22, 2019.
16. 16Respondent’s Document Brief, Tab 9, page 112 of pages 102 to 121, Job Site Evaluation Report of Dawn Rodie, physiotherapist, dated June 20, 2018.
17. 17Scarlett, supra note 5.
18. 18Respondent’s Document Brief, Tab 29, pages 294 to 297, Letter dated May 23, 2018 from the respondent to the applicant regarding treatment plan dated May 7, 2018 received on May 14, 2018.