Clements v. The Co-operators General Insurance Company, 2023 CanLII 15045

Citation: Clements v. The Co-operators General Insurance Company, 2023 ONLAT 19-012539/AABS

Licence Appeal Tribunal File Number: 19-012539/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 Clements

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Andrew Franzke, Counsel

For the Respondent:

Bruce Keay, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant was involved in an automobile accident on April 3, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“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 this dispute.

2The respondent opposed the application, on the basis that the applicant should be barred from proceeding pursuant to sections 32, 33 and 34 of the Schedule, as he had failed to notify the respondent of the accident until 2019, six years after the accident.

3In the decision R.C. v The Co-operators General Insurance Company, 2020 CanLII 98748 (ON LAT), the Tribunal held that the applicant had provided a reasonable explanation for the delay pursuant to s. 34 of the Schedule. Namely, that the applicant’s periods of homelessness, incarceration, addiction, mental illness and alleged physical injuries from the accident, resulted in a genuine inability to pursue his claim in the period post-accident. The applicant was permitted to proceed with his application on the substantive issues, listed below.

ISSUES

4The 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 $2,680.00 for physiotherapy proposed by Spinetec Health Care Solutions in a treatment plan submitted August 30, 2019?
3. Is the applicant entitled to $6,214.72 for chiropractic treatment proposed by Spinetec Health Care Solutions in a treatment plan submitted September 30, 2019?
4. Is the applicant entitled to cost of examination expenses recommended by Meditechs Independent Medical Examinations in the following treatment plans: a) $2,881.50 for a neurological assessment submitted September 30, 2019; b) $2,486.00 for an in-home assessment submitted August 30, 2019; c) $2,881.50 for a psychological assessment submitted September 30, 2019; and d) $21,800.00 for catastrophic assessments submitted December 23, 2020.
5. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

5In its submissions, the respondent raised the issue of whether the accident was the cause of the applicant’s injuries. As a result, the issue of causation will also be addressed as part of this written hearing.

RESULT

6The applicant has failed to establish that his accident-related injuries and impairments warrant removal from the MIG or that the disputed medical and rehabilitation benefits are reasonable and necessary as a result of the accident. Therefore, no benefits are payable, and no interest is owing. There is no basis for an award.

ANALYSIS

Causation

7The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that he would not have suffered the injuries “but for” the accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. The applicant further argues that if he is unable to meet the “but for” test in Sabadash, the test set out in the recent Divisional Court decision Thiruchelvam v. RBC General Insurance Company, 2022 ONSC 554, should be applied. Namely, that a material contribution test can be applied in exceptional circumstances where there are two or more tortfeasors.

8Based on the evidence, I find that, on a balance of probabilities, the accident was not a necessary cause of the impairments from which the applicant is suffering. I also find that the applicant has not established that the accident materially contributed to his present physical and psychological impairments.

Did the accident cause the applicant’s physical impairments?

9It is undisputed that the applicant presently suffers from serious physical impairments. In the years post-accident, the applicant reported increasing back pain and numbness in his right foot, which subsequently appeared to extend to both feet. This led to frequent falls, mobility issues and the need to use a walker, canes and a wheelchair. Spinal diagnostic imaging conducted in March 2020, found that the applicant suffered from disc bulge, facet osteoarthritis, and ligamentous thickening accompanied by congenitally short pedicles causing multilevel spinal canal stenosis and foraminal narrowing. The applicant was assessed by Dr. Kaleel, neurologist, in October 2020 who found peripheral neuropathy of both lower limbs. The applicant submits that he is presently immobile, in a wheelchair.

10The respondent submits that these injuries were not caused by the subject accident. Rather, the respondent argues that the applicant has reported numerous times that he was involved in multiple accidents, one prior to the subject April 3, 2013 accident, and at least two subsequent accidents - one soon after the subject accident in 2014, and one in 2019. The respondent asserts that the prior and subsequent (2014) accident were the necessary cause of the applicant’s current impairments, and that the applicant has not led sufficient evidence that he sustained any injuries from the accident in question.

11The applicant submits that the respondent’s theory that an intervening 2014 accident is the cause of the applicant’s present physical impairments, is not credible. Rather, he contends that any conflicting statements of accident dates are due to his frailties in reporting, given his poor memory, difficulties with drug addiction and serious psychological impairments, including schizophrenia, depression, anxiety, personality disorder and bipolar disorder. The applicant acknowledges that he “truly is a poor historian”, however, he submits that the medical evidence establishes that his present debilitating symptoms can be traced to the subject accident.

The Applicant’s Reports of Prior and Subsequent Accidents

12The respondent contends that the applicant was involved in a prior accident in 2009, which partially contributed to his present impairments. In a medical note from the Central North Correctional Centre (“CNCC”) dated January 3, 2012, a year before the subject accident, it was noted that the applicant suffered from sciatica radiating down to his leg and back pain, as a result of being hit by a truck “a few years ago”. The respondent further submits health care records from 2011 where the applicant continued to report back and leg pain. The applicant agreed that it is “logical to conclude” that he was involved in an accident “a few years” before the subject accident. Therefore, I find that the prior accident is not in dispute.

13The parties also agree that the applicant was involved in an accident, or accidents, in 2019. The applicant submits an ambulance call report dated March 7, 2019, indicating that he had fallen off his bicycle and was unable to get up. In addition, the respondent submits a Grand River Hospital Record dated March 17, 2019, where the applicant was injured when he was struck by a vehicle while he was riding his bike.

14However, the respondent also contends that the applicant was involved in another accident, soon after the subject April 3, 2013 accident. The respondent points to multiple reports the applicant made to treatment providers at CNCC throughout 2014 and 2015 which referenced an accident that would have taken place in spring/summer 2014. The applicant rejects this theory and argues that any discrepancies over the years in his recollection of the date of the accident is not due to an intervening accident, but due to the fact that he was a poor historian. As such, the applicant requests that the Tribunal give less weight to his conflicting self-reports of accident dates, and more weight to the objective medical evidence.

Does the Medical Evidence Establish that the Subject Accident Caused the Applicant’s Physical Impairments?

15Upon reviewing the totality of the medical evidence, I find that the applicant has not met his burden to prove that he sustained any physical impairments from the subject accident.

16I agree with the respondent’s submissions that the bulk of the evidence contemporaneous with the accident does not establish that the applicant sustained physical injuries. The police occurrence report dated April 3, 2013 recorded that there were “no charges, no injuries, cyclist at fault”. Although the applicant submitted that he had attended Grand River Hospital the day after the accident, and was diagnosed with a dislocated shoulder and a “problem with his sciatic nerve”, no hospital records were provided to corroborate this injury. I note that medical records were provided from Grand River Hospital with respect to other accidents, however, no explanation was provided as to why the hospital records were not similarly obtained for the subject accident. When the applicant was assessed at the prison two weeks after the accident, on April 16, 2013, it was noted that there were “no current injuries and no physical disabilities”.

17Most persuasively, diagnostic imaging was conducted two months post-accident and the results of the x-ray dated June 7, 2013 did not indicate any injury. This diagnostic imaging and the applicant’s complaints of back pain, were assessed by Dr. Lorberg at CNCC in a report dated August 26, 2013, four and a half months post-accident.

18Dr. Lorberg noted the applicant’s complaints of recurrent back pain and stated that he had assessed the applicant “on numerous occasions over the past two years”. Dr. Lorberg confirmed the applicant’s “giant” hiatus hernia, which is not alleged to be accident-related, and noted that the applicant’s spinal x-ray did not reveal any injury. There was no reference to the subject accident in Dr. Lorberg’s report, nor did Dr. Lorberg report a deterioration in the applicant’s condition after April 3, 2013. Although the applicant submits that post-April 3, 2013 his complaints of back and leg pain were substantially different, in August 2013 Dr. Lorberg did not make any note of increased or more serious pain complaints.

19The applicant relies on diagnostic imaging dated May 26, 2014 which reported a number of findings, including disc protrusions, spinal central stenosis and excessive facet joint degeneration. He submits that this should be compared to his pre-accident imaging from January 3, 2012 which did not reflect such protrusions and stenosis, and argues that this is evidence of his accident-related impairments. However, I note that the May 2014 imaging was conducted more than a year post-accident. The applicant does not address or provide an explanation for the x-ray conducted two months post-accident which did not indicate such injuries.

20The applicant did report back and leg pain in the years post-accident. However, I agree with the respondent’s submissions that the applicant had reported such impairments prior to the accident as well. As previously noted, the applicant reported back pain with sciatica radiating to his leg in 2011 and 2012.

21The applicant contends that his physical deterioration led to mobility and balance issues. In 2019, the applicant was assessed by Dr. Paton, chiropractor, who found right rotator cuff syndrome, severe spinal stenosis and disc displacement. Spinal diagnostic imaging conducted in March 2020, found evidence of disc bulge, facet osteoarthritis, multilevel spinal canal stenosis and foraminal narrowing. Dr. Kaleel, neurologist, assessed the applicant in October 2020 and found peripheral neuropathy of both lower limbs. However, I note that these assessments were conducted six and seven years post-accident. While I have no doubt of the severity of the applicant’s current physical impairments and acknowledge that the applicant reported increasing back, leg pain and numbness, the applicant has not led sufficient evidence to establish that these impairments have been caused by the subject accident.

22In terms of the respondent’s argument that an intervening accident in 2014 caused the applicant’s current physical impairments, I find that it is not necessary for me to make that determination. While I agree with the respondent’s submissions that a number of the applicant’s self-reports make reference to additional accident dates in 2014, I note the applicant’s acknowledgement that due to his substantial challenges, he is a poor historian. From the evidence it is unclear whether there was an intervening accident in 2014. However, the burden of proof lies with the applicant to establish that the April 3, 2013 accident was the cause of his physical impairments, not on the respondent to disprove it. I find that the weight of medical evidence, particularly the evidence that is contemporaneous with the accident, does not establish that the subject accident was a necessary cause of, or materially contributed to, the applicant’s present impairments.

Do the applicant’s accident-related impairments warrant removal from the MIG?

23The 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.

24Section 18(1) of the Schedule 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 demonstrating that their injuries are not included in the minor injury definition. In all cases, the burden of proof lies with the applicant.

25The applicant submits that he should be removed from the MIG on the basis of his pre-existing psychological impairments and his pre-existing sciatic lower back pain.

26I find that the applicant has not led sufficient evidence to demonstrate that his accident-related impairments warrant removal from the MIG.

27While I agree with the applicant that his pre-existing psychological issues are well documented, he has provided very limited evidence as to how his psychological impairments have been exacerbated by the accident. In his submissions, the applicant references a November 20, 2018 hospital visit where he claimed that due to his recurring physical injuries and mobility issues he was the most depressed he has ever been. However, as previously noted, the applicant has not provided sufficient evidence to establish that his physical impairments were caused by the subject accident. Although the applicant references reports of mental health complaints for years post-accident, he has not led any evidence as to how these impairments differed from his pre-accident psychological conditions. Nor has the applicant submitted any evidence that his pre-existing psychological impairments prevent maximal medical recovery under the MIG.

28With respect to the applicant’s pre-existing sciatic lower back pain, I agree with the applicant’s submissions that his pre-existing back and leg injury have been documented by a medical practitioner. However, the applicant must also establish that this pre-existing injury prevents him from achieving maximal recovery under the MIG, pursuant to s. 18(2) of the Schedule. The applicant submits that a December 23, 2020 reporting letter from Dr. Paton, chiropractor, satisfies this requirement.

29Dr. Paton reviewed the May 26, 2014 diagnostic imaging and opined that the applicant had suffered from pre-existing shortened pedicles, ligamentous hypertrophy and degenerative changes. He further concluded that the diminished space of the central spinal canal at the lumbar spine was likely compromised “as his low back was jarred following the subject accident”, and that this progressed to the significant motor and sensory losses the applicant was currently experiencing. I do not find Dr. Paton’s diagnoses to be persuasive.

30Firstly, I note that this review and assessment was conducted more that seven years after the accident and that Dr. Paton only reviewed the May 26, 2014 imaging in coming to his conclusions. The pre-accident imaging from January 3, 2012 and the contemporaneous x-ray from June 2013, were not referenced. In addition, although Dr. Paton surmised that the applicant’s low back was jarred during the April 3, 2013 accident, as previously noted, the applicant has not led any contemporaneous medical evidence that he sustained physical injuries from the subject accident. There is evidence that the applicant was involved in a number of accidents over the years. The applicant has not led sufficient evidence that it was the April 3, 2013 accident that led to jarring referenced in Dr. Paton’s reporting letter.

31As such, I find that the applicant has not established that his pre-existing impairments were exacerbated by the subject accident or that they prevent the applicant’s maximal medical recovery under the MIG

32Given the lack of evidence to support causation, on a balance of probabilities, I cannot conclude that the applicant’s physical and psychological symptoms and impairments are a result of the accident. As such, the applicant has not established that the disputed medical and rehabilitation benefits are reasonable and necessary as a result of the accident.

Award under Regulation 664

33Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

34As I found that the applicant’s impairments were not caused by the accident, there was no payment unreasonably withheld or delayed. As such, the applicant is not entitled to an award.

ORDER

35The applicant has not discharged his onus in establishing that his accident-related impairments warrant removal from the MIG or that the disputed treatment plans are reasonable and necessary as a result of the accident. Therefore, no benefits are payable and no interest is owing. There is no basis for an award.