Licence Appeal Tribunal File Number: 20-014661/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:
Judith Berrezuata
Applicant
and
Wawanesa Insurance
Respondent
DECISION
VICE-CHAIR: E. Louise Logan
APPEARANCES:
For the Applicant: Bobby Vujicic, Paralegal
For the Respondent: Ryland MacDonald, Counsel
HEARD: By way of written submissions
OVERVIEW
1Judith Berrezuata, the applicant, was involved in an automobile accident on August 18, 2018, 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 the respondent, Wawanesa Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The parties participated in a case conference where they identified and agreed to the issues in dispute which proceeded to a written hearing.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from January 22, 2019 to August 18, 2020?
iii. Is the applicant entitled to a medical benefit in the amount of $5,062.70 for chiropractic treatment proposed in a treatment plan/OCF-18 (“OCF-18”) dated November 27, 2018?
iv. Is the applicant entitled to a medical benefit in the amount of $1,998.00 for the cost of an orthopaedic assessment proposed in an OCF-18 dated December 28, 2018?
v. Is the applicant entitled to a medical benefit in the amount of $1,995.32 for the cost of a psychological assessment proposed in an OCF-18 dated November 16, 2018?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG, or that she meets the test for entitlement to an NEB. As the parties have indicated, the MIG limits have been exhausted, she is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest.
PROCEDURAL ISSUES
4The respondent submits that on reply the applicant made an argument that was not part of her initial submissions, namely that the respondent had never provided the applicant with proper notice of the termination of her NEB. The respondent submits that the applicant also introduced new evidence that was not included in her initial submissions. The respondent submits that the introduction of a new issue and evidence on reply is improper and procedurally unfair. It cites the decision in 18-001471 v. Economical Insurance Company 2019 CanLII 22187 (ON LAT) in support of its position.
5I agree with respondent. The right of reply is a limited one. New argument and evidence are not permitted because the respondent does not have the opportunity to respond. I find the applicant’s new argument and evidence with respect to whether the respondent provided proper notice of the termination of the NEB are improper, and I will not consider them in rendering my decision.
ANALYSIS
6The applicant was a passenger involved in an accident when the left front side of the vehicle was struck by another vehicle. Emergency services did not attend the accident, and the applicant attended the Humber River Hospital later the same day. At the hospital, the applicant complained of left shoulder strain and pain. The Disability Certificate (“OCF-3”) completed by Essential Physio Rehabilitation Inc. on August 21, 2018, lists ten accident-related conditions including insomnia, nervousness when driving, injury of muscles and tendons in the neck, shoulder and upper arm muscle and tendon injury, sprain and strain of the knee, ankle and foot muscle and tendon injury, headache, sprain and strain of sacroiliac joint, and sprain and strain of the thoracic spine.
Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “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 an injury.”
8An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG 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 impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
9The applicant makes three arguments in support of her removal from the MIG. First, she argues she should be removed from the MIG on the basis of a post-accident diagnosis of dural arteriovenous (AV) fistula. Second, she argues she has an accident-related psychological condition. Third, she argues she has pre-existing medical conditions which preclude recovery within the MIG. I will address each of these arguments in turn.
Dural AV Fistula
10The applicant submits that she should be removed from the MIG as a result of a diagnosis of dural AV fistula, which is the cause of her tinnitus, and which does not fall within the definition of minor injury. In support of her position, she points to the clinical notes and records of Dr. C. H. Li, family physician, Dr. Roman Chaban, otolaryngologist, and Dr. Vitor Pereira, neurosurgeon. She argues that the medical evidence shows that the applicant’s tinnitus worsened after the motor vehicle accident, and that she was diagnosed with dural AV fistula following the accident. She argues that this condition required surgery and is not a minor injury.
11The respondent argues that the applicant has not demonstrated that “but for” the accident she would not have developed dural AV fistula. As a result, it argues that she has not discharged her burden with respect to causation. It points to the clinical notes and records of Dr. Li which indicate the applicant has had tinnitus for many years. It notes that the first post-accident report of tinnitus was not until February 22, 2019, six months after the accident. The respondent submits that although the applicant was diagnosed with dural AV fistula after the accident, there is no evidence that it was caused by the accident.
12I agree with the respondent and find that the applicant has not demonstrated that her dural AV fistula was caused by the accident for the following reasons. I have reviewed the clinical notes and records of Dr. Li, and the reports of Dr. Pereira, and Dr. Chaban and find that although the applicant was diagnosed after the accident, there is no indication in the evidence that her dural AV fistula was caused by, or is in any way related to, the accident. I find the medical evidence, including the OCF-3, the clinical notes and records of Humber River Hospital, the clinical notes and records of Dr. Li, and the insurer’s examination (“IE”) assessments conducted by the respondent all consistently indicate the applicant suffered soft tissue injuries as a result of the accident.
13As a result, I find the applicant has not demonstrated that she has an accident-related injury that warrants removal from the MIG.
Psychological Condition
14The applicant also argues she should be removed from the MIG on the basis of an accident-related psychological condition. In support of her position, the applicant relies on an OCF-18 for psychological services prepared by Dr. Ana Bodnar, psychologist, on November 16, 2018. This OCF-18 includes the results of a “pre-screening interview” conducted by Dr. Bodnar on the same date.
15The respondent submits that the applicant does not have a diagnosis of a psychological disorder. It argues that the pre-screening interview conducted by Dr. Bodnar reports symptoms that are based solely on the applicant’s complaints, and that Dr. Bodnar’s interview results are not corroborated by the clinical notes and records of Dr. Li or any other medical evidence. It also points to the IE assessment of Dr. Dumitrascu, psychologist, who opined that the applicant had mild symptoms of anxiety and depression that were not clinically significant and did not meet the criteria for any DSM-V disorder.
16I find the applicant has not met her evidentiary burden to demonstrate she has a psychological condition warranting her removal from the MIG for the following reasons. I find that Dr. Bodnar’s psychological pre-screening interview which was undertaken in support of an OCF-18, was based entirely on the applicant’s reporting and did not include any diagnostic testing. As a result, I prefer the report of the IE assessment conducted by Dr. Dumitrascu which included a review of medical documentation, an in-person assessment of the applicant, and psychometric testing. Dr. Dumitrascu documented her findings in a formal IE report with responses to specific referral questions and opined that the applicant is not psychologically impaired as a result of the accident.
17As a result, I find the applicant has not met her onus to demonstrate she has a psychological impairment that warrants her removal from the MIG.
Pre-existing medical condition
18I find the applicant has not demonstrated that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG for the following reasons.
19As noted above, section 18(2) provides that insured persons with minor injuries who have a pre-existing medical condition may be removed from the MIG. Section 18(2) requires the applicant to provide compelling evidence demonstrating:
(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.
20The 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.
21In this case, I find that the medical evidence shows that the applicant had numerous pre-existing conditions, including aches and pain in both legs, anxiety, lower back pain, headaches, tinnitus, hypertension, osteoarthritis, lower abdominal pain, and dizziness. The issue to be decided is whether these conditions prevent maximal recovery within the MIG limits.
22It is not clear from the applicant’s submissions whether one, some, or all of these pre-existing conditions are the basis of her argument that she should be removed from the MIG. In her reply submissions, the applicant focuses on her pre-existing tinnitus condition as the basis for removal from the MIG. Regardless, the applicant has not pointed me to medical evidence that indicates she has a pre-existing condition that will prevent maximal recovery within the MIG. As noted above, it is not sufficient to simply show there is a pre-existing condition or conditions, nor is it sufficient to show it is impacting the applicant’s quality of life or making sleep difficult. It is the applicant’s onus to provide compelling medical evidence that the condition or conditions prevent maximal recovery within the MIG. I find that while the medical evidence shows the applicant had pre-existing medical conditions, her submissions and evidence do not specifically indicate that she required treatment beyond the MIG due to any, or all, of these pre-existing conditions.
23As a result, I find the applicant has not met her evidentiary burden to demonstrate that she requires treatment outside the MIG due to a pre-existing medical condition.
Non-Earner Benefit (NEB)
24Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
25I find the applicant is not entitled to a non-earner benefit for the following reasons. The applicant submits she suffers from a complete inability to carry on a normal life. The applicant argues that she has difficulty bending, lifting, carrying, walking and standing for long periods of time and is no longer able to go for daily walks, church, housework or socializing, and spends much of her time lying down and resting. Her sleep is also disturbed, and she has low energy and decreased appetite. She submits that these concerns are reflected on the OCF-3, during the IE assessment by Ms. Linda Cottrell, occupational therapist, in the interview conducted by Dr. Bondar, and during the IE assessments by Dr. Dumitrascu and Dr. Rajka Soric, physiatrist. The applicant argues the evidence show that she has not yet returned to her pre-accident level of function. The applicant also argues that Dr. Robert Yufe, neurologist, did not review the applicant’s activities of normal life, and his IE report should not be relied on with respect to the determination of whether the applicant is entitled to an NEB.
26The respondent submits the applicant did not suffer a complete inability to carry on a normal life as a result of the accident. In support of its position, it points to the IE assessments conducted by Ms. Cottrell, Dr. Yufe, and Dr. Dumitrascu who all concluded the applicant does not suffer from a complete inability to carry on a normal life.
27I find that while the applicant has made submissions and pointed to evidence that shows she has not returned to pre-accident level of functioning, she has not provided a comparison of pre- and post-accident activities that show she suffers from a complete inability to carry on a normal life. I also find that while the IE assessments conducted by Dr. Yufe on November 27, 2018 and Dr. Dumitrascu on November 10, 2018 conclude that the applicant did not suffer a complete inability to carry on a normal life, they do not provide specific detail about pre- and post-accident activities.
28I find the IE assessment conducted by Linda Cottrell in December 2018 persuasive because it contains a detailed analysis of the applicant’s pre- and post-accident activities. Ms. Cottrell’s IE report sets out the applicant’s activities before the accident, including personal care, indoor housekeeping tasks, grocery shopping, spending time with family, and attending church. In her report, Ms. Cottrell notes that the applicant reported she was not working at the time of the accident and did not have any caregiver responsibilities. She did not drive a car but did occasionally used public transit. She had not tried to use public transit since the accident. The applicant reported to Ms. Cottrell that she had resumed most of her normal activities of daily living, albeit in a paced manner. During the assessment, the applicant demonstrated her ability to carry out a range of activities related to personal care and housekeeping tasks. She reported that while she had resumed most of her housekeeping responsibilities, she had not resumed cleaning the tub, changing the bed linens, washing the floors or taking out the garbage. She continued to do grocery shopping with her husband as she did before the accident, and also reported being ready to resume the family banking that had been her responsibility before the accident. She stated that she continued to attend church regularly and spend time with her husband and children, as she had done pre-accident.
29Based on the evidence and submissions before me, I find that the applicant has resumed most of her normal activities of daily living, albeit in a paced manner. She has not demonstrated she suffers from a complete inability to carry on a normal life, and therefore I find she is not entitled to an NEB.
30I have found that the applicant has not established, on a balance of probabilities, that her accident-related impairments warrant treatment beyond the MIG. As the parties have indicated that the applicant has exhausted the MIG limits, she is not entitled to the treatment and assessment plans in dispute.
Interest
31As there are no benefits payable, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
32The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG, or that she meets the test for entitlement to an NEB. As the parties have indicated the MIG limits have been exhausted, she is not entitled to the treatment and assessment plans in dispute. As there are no benefits owing, the applicant is not entitled to interest.
33The application is dismissed.
Released: March 21, 2023
E. Louise Logan
Vice-Chair