Citation: Paglia v. BelairDirect Insurance Company, 2023 ONLAT 20-010927/AABS

Licence Appeal Tribunal File Number: 20-010927/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:

Nicholas Paglia

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Anastasia D. Sukalsky, Counsel

For the Respondent:

Mercedes Marin, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on August 19, 2018 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 submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“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 limit and in the Minor Injury Guideline?

2. Is the applicant entitled to a medical benefit in the amount of $1,800.00 for chiropractic treatment, proposed by Vaughan Wellness Clinic in a treatment plan (“OCF-18”) dated October 1, 2019?

3. Is the applicant entitled to a medical benefit in the amount of $765.00 ($1,375.00 less $610.00 approved) for physical rehabilitation, proposed by Vaughan Wellness Clinic in an OCF-18 dated January 15, 2020?

4. Is the applicant entitled to a medical benefit in the amount of $1,800.00 for chiropractic treatment, proposed by Vaughan Wellness Clinic in an OCF-18 dated October 7, 2020?

5. Is the applicant entitled to a medical benefit in the amount of $1,375.00 for chiropractic treatment, proposed by Vaughan Wellness Clinic in an OCF-18 dated May 13, 2020?

6. Is the applicant entitled to $1,780.00 for physical rehabilitation recommended in an OCF-18 denied by the respondent on November 24, 2021?

7. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline.

4The OCF-18 for physical rehabilitation in the amount of $671.71 is reasonable and necessary, up to the $3,500.00 treatment limit of the Minor Injury Guideline. However, the remainder of the OCF-18s in dispute are not reasonable and necessary pursuant to the Schedule.

5The applicant is not entitled to an award pursuant O. Reg. 664, but is entitled to applicable interest on the treatment plan listed above, if incurred.

ANALYSIS

Procedural Issue – Exclusion of Dr. Getahun’s Report

6The respondent submits that the applicant’s Chronic Pain Assessment Report by Dr. T. Getahun, Orthopaedic Surgeon, dated May 21, 2021, should be excluded from the evidence pursuant to Rule 9.4 of the Tribunal’s Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (“Rules”).

7Specifically, the respondent submits it would be prejudiced by the inclusion of this report, as it was only served on January 11, 2022 with the applicant’s written hearing submissions and document brief. The respondent’s written submissions were due January 21, 2022, giving it ten days to respond. Given the late service of this report, the respondent was unable to provide it to its own experts for review and comment prior to the hearing.

8The case conference report and order dated June 11, 2021 specifically enumerated the production deadlines for this written hearing. The parties were required to exchange all productions by October 1, 2021 and exchange any addendum or additional expert reports by December 3, 2021.

9Dr. Getahun’s Report is dated May 12, 2021, more than four months prior to the October 1, 2021 production deadline for expert reports and addendums. The applicant has failed to provide any reply submissions, nor explanation for this delay in production.

10By failing to comply with the October 1, 2021 production deadline, the applicant has failed to abide by a Tribunal Order. This falls directly within the ambit of Rule 9.4, as the respondent would be prejudiced by the late disclosure of this evidence. This report was produced only as part of the applicant’s submissions and hearing document brief. The respondent has been denied the opportunity to have its own experts review and comment on Dr. Getahun’s chronic pain diagnoses. In my view, inclusion of this report would compromise the procedural fairness of the hearing pursuant to Rule 3.1(a). When I consider this potential unfairness, coupled with the lack of any explanation for the late disclosure, I am persuaded that this report shall be excluded from the record.

11To be clear, Dr. Getahun’s Chronic Pain Assessment Report dated May 12, 2021 shall be excluded from the evidentiary record pursuant to Rule 9.4 of the Rules.

The Minor Injury Guideline

12The Minor Injury Guideline (“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.

13Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding for treatment beyond the $3,500.00 limit 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 an injury that is not included in the minor injury definition.

14It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. See: Scarlett v. Belair Insurance, 2015 ONSC 3635, at paragraph 24 (Div. Ct.).

15The applicant has not yet exhausted the $3,500.00 MIG treatment limit. The applicant submits that he has a pre-existing condition which precludes his recovery within the MIG. Alternatively, he submits he suffers from chronic pain, which is not included in the definition of a minor injury.

Pre-Existing Condition and the MIG

16I am not persuaded the applicant has established on a balance of probabilities that he suffered from any pre-existing condition which would otherwise preclude his recovery following the accident if he remains in the MIG. As a result, he is subject to the MIG and the $3,500.00 treatment funding limit.

17It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal medical recovery within the cap imposed by the MIG.

18Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, 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 person is subject to the $3,500.00 on treatment costs under the MIG.

19Following the accident, the applicant reported he suffered from neck and back pain. The OCF-18s submitted detail injuries including whiplash associated disorder 2, sprain/strain of the thoracic and lumbar spine, and lumbago with sciatica. The applicant submits he has a history of chronic back pain that began in approximately 2015, more than three-years pre-accident.

20I find the post-accident clinical notes and records do not include a specialist referral or diagnostic imaging. The records of Brampton East Urgent Care Centre on August 26, 2018 indicate a diagnosis of mechanical back strain and note a history of herniated disc at L4-S1 and chronic back pain. The applicant was advised to seek massage therapy and take Tylenol or Advil as needed.

21I find the applicant relies solely on two Diagnostic Imaging Reports of his lumbar spine to establish his pre-existing condition. The first, dated November 16, 2015, revealed disc bulging in the lower spine with some neural foraminal narrowing and noted a clinical history of severe pain. The second, dated February 19, 2016, noted interval worsening of the disc protrusion at L4-L5, resulting in worsening stenosis of the central aspect of the spinal cord and contact/compression on the nerve roots at this level. However, in comparison with the previous diagnostic imaging, no other significant interval change was highlighted.

22I find the applicant has not produced any clinical notes and records from his family physician, Dr. Y. Meghory, that pre-date the accident, which would assist him in meeting his burden under s. 18(2). However, in contrast, in reviewing an additional diagnostic imaging report of the lumbar spine, Dr. Meghory noted on October 26, 2018, approximately two months post-accident, that the lumbar spine showed improvement compared to 2016 and despite pain at L4-L5, back mobility was full. In his assessment, the applicant’s back pain was related to arthritic and degenerative changes. He concluded that he did not believe the pain was related to herniated disc at that time. He directed the applicant to continue with physiotherapy and chiropractic treatments. By December 17, 2018, Dr. Meghory again noted that despite pain, back mobility was full and reflexes were normal. He indicated that the previous “MRI did not show any exacerbation of the applicant’s previous back problem”, which undermines the applicant’s position on s. 18(2).

23There is also a significant gap in any reports of back pain to Dr. Meghory between December 2018 and September 2020. The medical records in this period relate to the applicant’s diagnosis and treatment of Hodgkin’s Lymphoma. However, by September 1, 2020, Dr. Meghory noted the applicant continued to suffer intermittent back pain with some compensatory scoliosis and muscle spasms. Dr. Meghory indicated this pain was likely discogenic in nature, but probably related to muscle strain. Following an additional MRI, on September 18, 2020, it was noted the applicant’s back was improved, and pain was again related to muscle strain.

24Similarly, the diagnostic reports and medical records, including those provided by Vaughan Wellness Clinic, do not establish a link between the exacerbation of the applicant’s pre-existing back pain and the accident. Rather, by September 2020, the records state the applicant’s back pain was related to muscle strain.

25The respondent submits the applicant has failed to provide compelling evidence that any pre-existing condition prevented the applicant from achieving maximal recovery within the MIG. I place significant weight upon the Insurer’s Examination (“IE”) reports provided by Dr. A. Kruger, general practitioner, and Dr. A. Sekyi-Out, orthopaedic surgeon, as these were the sole expert medical reports tendered in evidence regarding the applicant’s physical impairments.

26Dr. Kruger conducted two in-person assessments and two paper review addendums. He maintained his initial diagnoses initially provided on February 12, 2020, finding the applicant suffered from soft-tissue injuries related to the accident, specifically lumbar sprain/strain. From a musculoskeletal perspective he noted no concurrent or pre-existing medical conditions were identified which would prevent the applicant from achieving maximal medical recovery from accident-related injuries. Similarly, Dr. Sekyi-Out in his report dated July 9, 2020 diagnosed the applicant with uncomplicated myofascial strains to his cervical and lumbar spine, and shoulder girdles. He noted no ongoing impairment attributable to the accident. Finally, he noted no evidence of pre-existing pathology that would delay healing times for accident-related symptoms.

27On the evidence, the applicant has not established his pre-existing back pain would prevent maximal recovery from the lumbar sprain/strain suffered as a result of the accident. The applicant has presented some evidence related to bulging discs in his lumbar spine as reflected in two diagnostic imaging reports from 2015 and 2016, but he has not otherwise tendered any pre-accident medical records. The post-accident diagnostic reports and the clinical notes and records failed to provide any evidence of exacerbation of the previous discogenic back pain related to injuries sustained in the accident or, importantly, an opinion from a medical practitioner meeting the requirements of s. 18(2). When I consider this evidence, and the strength of the IE reports provided by the respondent, I cannot conclude the applicant has established his pre-existing condition would prevent maximal recovery of the minor injuries sustained in the accident.

Chronic Pain and the MIG

28The applicant may also be removed from the MIG if he can demonstrate that he sustained a chronic pain condition causing functional impairment.

29I have been provided with little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on his functionality. In September 2020, Dr. Meghory made reference to a herniated disc in 2018 from which the applicant never recovered, but I am mindful of the gap in which no accident-related impairments are mentioned in these records between December 2018 and September 2020. The records of Vaughan Wellness Clinic do reference some ongoing back pain, however, they also failed to connect this lingering pain with the index accident.

30I find that the records provided do not include a diagnosis of chronic pain syndrome or demonstrate a chronicity of accident-related pain symptoms. Although not required, the applicant makes no reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”), nor the criteria for helping to determine if the applicant suffers from accident-related chronic pain. These records also failed to establish the applicant met three of the six AMA Guides criteria to establish chronic pain. Again, I am not persuaded that the lower back pain linked to the mild degenerative changes in the applicant’s spine are related to the index accident.

31I find the respondent’s submissions persuasive, as the timeline provided does not support persistent or chronic reports of pain. The applicant stopped reporting accident-related pain approximately four months post-accident. This was followed by a gap of almost two years, until September 2020, when the applicant reported any accident-related pain symptoms.

32Overall, the applicant has not demonstrated that he suffers from chronic accident-related pain that has impacted his functionality. The applicant has not demonstrated he suffers chronic pain, nor that his existing back pain is a result of the accident. Thus, I am satisfied that his accident-related injures may be treated within the confines of the MIG.

Physical Rehabilitation in the amount of $765.00

33I am persuaded that additional physical rehabilitation treatment in the amount of $671.71 is reasonable and necessary, up to the MIG funding limit of $3,500.00.

34Sections 14 and 15 of the Schedule provide that the insurer shall pay medical 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 benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

35The total amount of this OCF-18 dated January 15, 2020 was $1,375.00, however, it was partially approved by the respondent on January 21, 2020 in the amount of $610.00, leaving $765.00 in dispute.

36In a Standard Benefit Statement dated December 30, 2021, the respondent indicated that $671.71 of funding remained within the $3,500.00 treatment limit.

37Given the applicant’s lingering pain related to the soft-tissue injuries sustained in the accident, namely lumbar strain/sprain, I am persuaded that this additional physical treatment is reasonable and necessary up to the $3,500.00 treatment limit specified in the Schedule.

Remaining Treatment Plans in Dispute

38With the payment of the remaining treatment plan, above, the $3,500.00 MIG treatment limit will be exhausted. As a result, no additional analysis is required to determine if the remaining OCF-18’s in dispute are reasonable and necessary pursuant to the Schedule.

Award

39I am not persuaded the applicant is entitled to an award pursuant to s. 10 of O. Reg. 664.

40The respondent fulfilled its obligation to continually adjust the file. I find no evidence suggesting that it “ignored” the applicant’s pre-accident history, nor that it “blindly” relied on IE reports without consideration of the applicant’s change in circumstances. Rather, it is clear that the respondent referred the applicant to multiple IEs, including two paper reviews by Dr. Kruger, following the receipt of additional treatment plans and medical documents. Further, the respondent cannot be faulted for failing to consider the diagnoses of Dr. Getahun, whose report was served only ten days prior to the respondent’s submission deadline.

41Otherwise, the respondent has held the applicant to the legal standard set out in the Schedule, which does not constitute an unreasonable delay or withholding of benefits. Thus, the applicant is not entitled to an award.

Interest

42Interest is payable on the overdue payment of benefits. The applicant is only entitled to applicable interest on incurred treatment pursuant to s. 51 of the Schedule.

ORDER

43I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. The OCF-18 in the amount of $671.71 for physical rehabilitation is reasonable and necessary pursuant to the Schedule, up to the remaining $3,500.00 MIG funding limit;

iii. The remaining OCF-18s are not reasonable and necessary because they propose treatment beyond the MIG treatment limit of $3,500.00;

iv. The applicant is not entitled to an award pursuant to s.10 of O. Reg. 664;

v. The applicant is only entitled to applicable interest on the physical rehabilitation OCF-18 listed above, if incurred, pursuant to s. 51 of the Schedule.