St-Onge v. Economical Mutual Insurance Company, 2023 CanLII 13028

Licence Appeal Tribunal

Citation: St-Onge v. Economical Mutual Insurance Company, 2023 ONLAT 21-001879/AABS

Licence Appeal Tribunal File Number: 21-001879/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:

Jean-Charles St-Onge Applicant

and

Economical Mutual Insurance Company Respondent

DECISION AND ORDER

ADJUDICATORS: Janet Rowsell and Taivi Lobu

APPEARANCES:

For the Applicant: Jean-Charles St-Onge, Applicant

For the Respondent: Martin Forget, Counsel

HEARD by Videoconference: August 22, 2022 Closing submissions (in writing): Concluding September 23, 2022

INTRODUCTION

1The applicant was involved in an automobile accident on November 14, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and on February 15, 2021, submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PROCEDURAL HISTORY

2At a case conference held with Adjudicator K. Parish on September 15, 2021, a one-day videoconference hearing for August 22, 2022, 9:30 a.m. was scheduled on consent of the parties.

3The applicant then brought a motion for the removal of the adjudicator on the basis of alleged bias. At a motion hearing with Adjudicator S. Makhamra on October 21, 2021, it was clarified that Adjudicator Parish would have no further role related to the decision-making on the file. The applicant agreed that changes to the case conference order were not warranted.

4On August 3, 2022, the applicant filed a second motion requesting that the August 22 hearing be converted to an in-person hearing.

5On August 5, 2022, the applicant filed a third motion requesting an additional hearing day.

6On August 9, 2022, the applicant filed a fourth motion requesting an adjournment of the August 22, 2022, hearing to allow time to review and address the material filed.

7On August 12, 2022, all three motions filed that month were heard by Vice-Chair T. Hunter. He denied the requests for an in-person hearing and for an adjournment of the August 22 hearing. The request to extend the videoconference hearing beyond one day was referred to the hearing adjudicator.

8On August 22, 2022, the videoconference hearing took place before this panel. The request for an additional hearing day was refused at the hearing. This motion will be addressed below.

9At the conclusion of the evidence on August 22, 2022, an order was made on consent for the filing of closing submissions in writing.

10On September 2, 2022, the applicant filed a fifth motion requesting an extension of time for filing his closing submissions as the written consent order had not yet issued. On September 7, 2022, an order was issued granting the extension of time.

11On September 6, 2022, the applicant filed a sixth motion requesting that the panel be recused on the basis of bias. This motion will be addressed below.

12On October 21, 2022, the applicant brought a further motion to amend the issues and file new evidence. This motion will be addressed below.

MOTIONS BEFORE THE PANEL

Applicant Motion – Additional Hearing Day

13At the outset of the videoconference hearing, the applicant requested an additional hearing day, submitting that the one-day scheduled for his testimony was not sufficient and that he may need more time to testify. Counsel for the respondent submitted that the issue of the Minor Injury Guideline (“MIG”) typically proceeded by way of a written hearing and that in addition to being able to testify, the applicant has also had an opportunity to file his affidavits with the Tribunal.

14The panel denied the request to add an additional day to the applicant’s testimony. The one-day videoconference hearing had been scheduled with the consent of the parties at the September 2021 case conference. The September 2021 case conference order was subsequently reviewed and confirmed with the applicant in a motion hearing of October 21, 2021 (order dated November 4, 2021).

15In addition, the applicant’s written evidence was before the panel, including his own affidavits, and he was to be the only witness for the hearing.

16The panel was of the view that limiting the videoconference hearing to the one day that had been scheduled was in accord with principles set out in Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) for a fair, open and accessible process, having regard to the objectives of efficient, proportional and timely resolution of the merits of proceedings.

Applicant Motion - Recusal of Panel

17On September 6, 2022, after the videoconference hearing had concluded, the applicant filed a motion requesting that the panel recuse itself on the basis of bias and that he be granted an additional hearing day. The applicant argued that the panel unreasonably denied his request for an additional hearing day; that the respondent’s cross-examination was badgering and repetitive; that he was not given enough time to conduct a re-examination; and, that the panel did not adequately respond to the applicant’s objections. The applicant also submitted that he suffered neck, back and left shoulder pain sitting for lengthy periods at the public access centre in Ottawa for the videoconference hearing. These objections and concerns were not raised at the hearing. With respect to any concerns raised at the hearing regarding questioning by the respondent counsel or respecting the applicant’s opportunity for re-examination, such objections by the applicant were addressed immediately by the panel at the hearing, with efforts made to ensure that neither the applicant nor respondent were prejudiced.

18The respondent submitted that there was no basis for the allegation that the panel showed bias and no reasonable basis for the request for the recusal of the adjudicators. The respondent cited a similar, earlier motion initiated by the applicant to recuse Adjudicator Parish who presided at a case conference.¹

19In addressing the test for bias, the respondent referred to Robinson v AIG Insurance, 2022 CanLII 35796 (ON LAT), where Adjudicator Farlam applied the legal test for recusal of an Adjudicator as set out by the Supreme Court of Canada in Commission for Justice and Liberty v. National Energy Board, 1976 Can LII 2, [1978] 1 SCR 369 at p 394 (S.C.C.)²:

[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not [the decision-maker], whether consciously or unconsciously would not decide the matter fairly?”³

The respondent submitted that there was no evidence to support that an informed person, viewing the matter realistically and practically would conclude that it was more likely than not, that the panel consciously or unconsciously would not decide the matter fairly.

20The panel finds that the test of bias has not been met. The applicant did not reference in his motion materials, any behaviour or comment from the panel to support the allegation of bias. During the hearing the applicant was able to take breaks as often as requested. As stated, the objections and the basis for the request for the panel’s recusal were not raised at the hearing itself. On each occasion when the applicant requested the opportunity to raise arguments or ask clarifying questions during the cross-examination; or when the applicant raised concerns regarding the respondent counsel’s questions, his objections were considered and the Tribunal responded in a manner providing procedural fairness to both parties. On each occasion when the applicant expressed discomfort from prolonged sitting at the videoconference hearing and requested a break, the request was granted by the Tribunal. The hearing afforded the applicant the opportunity to be heard by way of oral as well as written evidence.

21At the motion-hearing of August 12, 2022, the respondent’s counsel undertook to provide the applicant with a paper copy of the respondent’s materials and brief, which included information which the applicant relied on to present his case.⁴ At the videoconference proceeding, the Tribunal received a supplementary brief filed by the respondent, which contained the written documents which the applicant relied on. The applicant was also permitted, with consent of the respondent, to file an additional document on the day of the hearing, even though the deadline for productions was June 17, 2022. With regard to the cross-examination, the applicant had the opportunity to explain his answers in the course of the respondent’s questions. While the cross-examination did not appear to raise new facts or issues beyond the evidence already before the panel, the applicant had the opportunity to provide additional testimony after the cross examination. Both parties were then able to present closing submissions in writing, with the applicant filing both initial and reply submissions. As the issuance of the initial written order for filing closing submissions was delayed, the panel granted the applicant’s motion for an extension of time for filing his closing submissions

22The panel finds that the applicant had substantial latitude to present his case and that the circumstances would not lead a reasonable person to conclude that the panel would not decide the matter fairly. The panel finds that the facts do not support the test for bias articulated in Commission for Justice and Liberty v. National Energy Board.

Applicant Motion - New Evidence

23After closing submissions had been filed, the applicant filed a Notice of Motion requesting that he be permitted to file additional evidence because of changes to his extended health benefit plan scheduled to take effect July 1, 2023.

24The issues in dispute were confirmed in the September 2021 Case Conference Order and reconfirmed by motion order dated October 21, 2021. The deadline for the production of documents was June 17, 2022. The hearing has been held and closing submissions filed.

25There is no suggestion that an upcoming change to the applicant’s supplementary insurance coverage affect the issues in this application – namely whether the applicant is bound by the MIG as defined in the Schedule and whether a 2019 physiotherapy treatment plan denied by the respondent is reasonable and necessary. The applicant’s post-hearing motion to reopen the hearing is dismissed.

ISSUES

26The issues in dispute for this hearing are:

a. 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 the MIG?

b. Is the applicant entitled to a medical benefit in the amount of $917.88 for physiotherapy, proposed by Lifemark Sante Montfort in a treatment plan/OCF-18 dated August 28, 2019?

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

RESULT

27The Tribunal finds that:

a. the applicant’s injuries were properly classified in accordance with the definition of “minor injury” under the Schedule and that the applicant is bound by the funding limits of the MIG.

b. the physiotherapy treatment plan of August 28, 2019, is reasonable and necessary, and payable subject to it being incurred and that there are available funds within the MIG limits.

c. interest is payable in accordance with the Schedule.

BACKGROUND

28The applicant was sixty-one-years of age at the time of the 2016 motor vehicle accident. The applicant drove his vehicle home following the accident and went to a hospital two days later where he was diagnosed with a cervical abrasion.⁵

29The applicant has a medical history of gout,⁶ arthritis, and a partial shoulder tear⁷ and has been involved in previous car accidents.⁸ The most recent previous accident was on December 4, 2014. The applicant was receiving continued treatment for the 2014 accident (neck and back pain treatment) at the time of the 2016 accident,⁹ and such treatment continued into 2017. An MRI of his cervical spine dated September 17, 2015, was normal.¹⁰ The injuries sustained by the applicant in relation to the 2016 accident were similar to the injuries sustained in the previous car accident.¹¹

30The applicant has continued to work since the 2016 accident. The applicant was receiving physiotherapy treatment both before and after the 2016 accident.

ANALYSIS

Issue 1: Minor Injury Guideline

31Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that meet the definition of a minor injury.

32Section 3(1) defines “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury.”

33Individuals may be removed from the MIG if they can establish that their accident-related injuries fall outside of the definition of minor injury or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with applicants to demonstrate on a balance of probabilities, that their injuries are not minor or they have a pre-existing condition that would prevent maximal recovery within the MIG.

Statistical Data

34The applicant provided information from Statistics Canada about the incidence of osteoarthritis for men in his age group. He submitted that when his family health history is considered together with this statistical data, he would have less than a 10 percent chance of developing osteoarthritis. He submitted that this data supported a causal link between his current health issues and the 2016 accident, and therefore his injuries from the 2016 accident should not be considered minor.

35While epidemiological data and family history might be included among factors considered by health professionals when assessing patients, the panel does not conduct medical assessments. The applicant has urged the panel to use statistical data to assess the impairment caused by his 2016 accident, however the panel finds such an approach to be speculative in nature and not a substitute for a medical assessment.

Medical and Treatment Evidence related to the MIG

36On March 9, 2020, at the request of the respondent, the applicant was examined by Dr. Khan, a physiatrist, for the injuries sustained in the 2016 car accident. Dr. Khan opined that the applicant suffered from cervical and thoracic spine sprain/stain, and that his injuries were within the definition of being minor.¹² Dr. Khan stated that the pre-existing condition may have been exacerbated, however, the applicant’s accident-related injuries could be treated within the MIG.¹³

37The information recorded by the applicant’s treating physiotherapists do not provide support for removing the applicant from the MIG:

1On February 23, 2017, three months after the 2016 motor vehicle accident (and following eleven physiotherapy treatments) physiotherapist Stephanie Battistin recorded that the applicant’s neck pain had slightly improved and his low back pain had significantly improved. In an OCF- 18 dated July 31, 2018, Ms. Battistin described the injuries as falling within the MIG.¹⁴ In each of her physiotherapist’s successive reports, Ms. Battistin describes the applicant’s injuries falling within the MIG.¹⁵

2A subsequent physiotherapist, Juliana Kebic, continued with the applicant’s treatments. Her reports of August 28, 2019¹⁶ and November 4, 2019¹⁷, describe the applicant’s injuries as falling in the MIG. Ms. Kebic noted under the subjective section of the report, that the applicant was concerned about needing ongoing physiotherapy treatment.¹⁸ Her plan was to transition the client away from hands-on therapy and provide him with the education required to perform exercises unsupervised.¹⁹

3The evidence from both physiotherapists support that the applicant’s injuries are within the definition of the MIG and that the treatment was to transition away from hands-on therapy.

MRI Evidence and Degenerative Changes

38The applicant provided articles regarding degenerative arthritis and neck and back pain. He also provided MRI reports dated September 17, 2015,²⁰ and October 19, 2020.²¹ The 2020 diagnostic imaging report of Dr. Charlotte Lobo compared the two MRI results, and confirmed the progression of degenerative changes in the applicant’s spine since 2015. The applicant also provided a document from his family physician, Dr. Marianne Bibawy of Chapel Hill Health Centre dated June 15, 2021, which referenced that the October 2020 MRI revealed multi-degenerative changes in the cervical spine.²² The applicant did not provide an expert opinion which drew a nexus between the degenerative changes and the subject accident.

39The test for determining causation in accident benefit cases is the “but for” test.²³ The applicant submits that he has met this test and that the degenerative changes to his spine are accident-related impairments.

40While the MRI evidence shows degenerative changes since 2015, without a medical opinion that ties the degenerative changes to the 2016 accident, the panel cannot find on the balance of probabilities that the degenerative changes would not have occurred “but for” the 2016 accident. The panel finds that the evidence regarding degenerative changes does not establish causation.

41In addition, even if an accident affected degenerative changes, in order for this to reclassify the accident injury as an injury outside of the MIG, the section 3(1) definition of “minor injury” requires that such changes be something other than “clinically associated sequelae” to a MIG injury. This has not been demonstrated.

42For these reasons, the MRI evidence does not demonstrate that the applicant’s 2016 accident injury is outside of the MIG.

Pre-Existing Condition

43The applicant submitted that his pre-existing physical injuries should take him out of the MIG. For this to occur, the provisions of section 18(2) of the Schedule must be met. Section 18(2) requires that a person’s health practitioner provide compelling evidence of a pre-existing condition which was documented by a health practitioner before the accident, and which prevents the achievement of maximal recovery under the MIG.

44This section has been considered in previous cases before the Tribunal. In 16-001517 v Royal Sun Alliance Insurance, Adjudicator Sandeep Johal stated, “The presence of pre-existing conditions alone is not sufficient to remove the Applicant from the MIG. The Applicant bears the onus and must adduce evidence to demonstrate that the pre-existing condition prevents him from achieving maximal recovery within the MIG.”²⁴ In T.S. v Aviva, the Adjudicator Manigat held that, “to move beyond the MIG, the applicant must demonstrate that his pre-existing medical condition…documented by a health practitioner before the subject accident will prevent him from achieving maximal recovery under the MIG’s limits if he is limited to the goods and services authorized under the MIG.”²⁵

45In this case, the only medical opinion about the impact of the pre-existing injury is from Dr. Khan. His opinion is that the applicant’s pre-existing injuries would not prevent the applicant’s recovery under the MIG.

46The panel finds that the applicant has not met the requirements of section 18(2). He has not provided compelling evidence from his healthcare practitioner that he had a pre-existing condition demonstrating that maximal recovery cannot be obtained under the MIG.

Conclusion - MIG

47The applicant’s documented injuries from the November 2016 accident were cervical and thoracic spine sprain/strain, and these fall within the Schedule definition of “minor injury.”

48While the applicant presented MRI-related evidence of degenerative changes of the spine between 2015 and 2020, the medical evidence does not show that these degenerative changes would not have occurred but for the 2016 accident. It would also have to be shown that such degenerative changes were not clinically-related sequelae of the MIG injuries. There is no evidence of this. Accordingly, the MRI evidence does not remove the applicant from the MIG limits.

49With regard to the applicant’s pre-existing condition, the applicant has not demonstrated through medical evidence required by section 18(2) that his pre-existing condition would prevent the achievement of maximal recovery if limited to the MIG funding limits.

50In conclusion, the applicant has not shown that the 2016 injuries go beyond the funding limits of the MIG.

Issues 2 & 3: Treatment Plan & Interest

51The physiotherapy treatment plan dated August 28, 2019, for $917.88 was denied by the respondent because the MIG applied;²⁶ however the evidence does not demonstrate whether the MIG limits have been exhausted.

52As noted earlier, in the August 28, 2019, treatment plan, Ms. Kebic, the physiotherapist, proposed to continue an active treatment approach, transitioning the applicant away from hands-on therapy and providing him with the education required to perform exercises unsupervised. Given the nature of the applicant’s injury and history of treatment, the panel finds the treatment plan to be reasonable and necessary.

53The treatment plan is payable by the respondent subject to it being incurred and within the remaining portion of the $3,500.00 funding limit.

54Interest is payable in accordance with the Schedule.

ORDER

55The application is granted in part:

1The applicant’s injuries are predominantly minor as defined by section 3 of the Schedule, and subject to treatment within the $3,500.00 limit of the MIG.

2The physiotherapy treatment plan of August 28, 2019, is reasonable and necessary. It is payable subject to it being incurred and within the remaining portion of the $3,500.00 funding limit.

3Interest is payable in accordance with the Schedule.

Footnotes

1. 1Motion Order dated November 24, 2021, at Tab 6 of the Hearing Brief.
2. 2Robinson v AIG Insurance, 2022 CanLII 35796 (ON LAT) at para 14.
3. 3Ibid., paragraph 16.
4. 4Decision of Vice Chair Terry Hunter of Applicant’s Motion, heard August 12, 2022.
5. 5Montfort Hospital clinical notes and records, Respondent’s Hearing Brief tab 10 at page 171-176.
6. 6IE Physiatry Report by Dr. Khan dated March 9, 2020, Respondent’s Hearing Brief tab 7 page 146.
7. 7MVA Initial Assessment Report by Stephanie Battistin, Respondent’s Hearing Brief tab 15 page 346.
8. 8Statement of Jean-Charles St-Onge, Respondent’s Hearing Brief tab 33 page 852
9. 9MVA Initial Assessment Report by Stephanie Battistin, Respondent’s Hearing Brief tab 15 page 345.
10. 10Intact Insurance File, Respondent’s Hearing Brief tab 32 page 701.
11. 11Dr. Mwanz clinical notes and records, Respondent’s Hearing Brief tab 9 page 154.
12. 12IE Physiatry Report by Dr. Khan dated March 9, 2020, Respondent’s Hearing Brief tab 7 page 145.
13. 13IE Physiatry Report by Dr. Khan dated March 9, 2020, Respondent’s Hearing Brief tab 7 page 146.
14. 14OCF-18 dated July 31, 2018, Respondent’s Hearing Brief tab 29 page 616.
15. 15Reports dated July 31, 2018, November 7, 2018, February 21, 2019, and May 22, 2019.MVA Progress Report dated August 28, 2019, Respondent’s Hearing Brief tab 18 page 554-567.
16. 16Ibid. page 570.
17. 17Amended MVA Progress Reported Dated November 4, 2019, Respondent’s Hearing Brief, Tab 19 page 573.
18. 18Amended MVA Progress Reported Dated November 4, 2019, Respondent’s Hearing Brief, Tab 19 page 572.
19. 19Respondent’s Hearing Brief, pages 94, 570, 573.
20. 20Dr. Mwanz clinical notes and records, Respondent’s Hearing Brief tab 9 page 156.
21. 21Dr.Charlotte Lobo, Diagnostic Imaging Report dated October 19, 2020 , Respondent’s Hearing Brief tab 1 page 78-80.
22. 22Dr. Marianne Bibawy, note dated June 15, 2021, Exhibit “U” to Affidavit of Applicant, Respondent Hearing Brief p.119.
23. 23Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878
24. 2416-001517 v Royal Sun Alliance Insurance, 2017 CanLII 19203 (ON LAT) at para 25.
25. 25T.S. v Aviva 2020 CanLII 51295 (ON LAT) at para 14.
26. 26Respondent’s Hearing Brief tab 22, page 582.