Licence Appeal Tribunal File Number: 20-012985/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:

Lewi Maycid

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Lewi Maycid, Applicant (Self-Represented)

For the Respondent:

Alex Robineau, Counsel

HEARD: by Videoconference:

April 12, 2023

OVERVIEW

1Lewi Maycid, the applicant, was involved in an automobile accident on August 5, 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 TD General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The accident occurred in Montreal. The applicant was visiting from Ontario, where he resided, and where his car was registered and insured. He elected to receive benefits under the Quebec Automobile Insurance Act, CQLR c A-25 (the “Act”). Among other things, he was entitled to a lump sum indemnity for non-pecuniary damage, meaning loss of enjoyment of life, pain, mental suffering, and other consequences of his injuries. The parties agree that he is entitled to this benefit but disagree on the amount.

3The respondent raised a preliminary issue that the Tribunal does not have jurisdiction to adjudicate disputes regarding accident benefits under Quebec law. The Tribunal held that it did in Maycid v TD General Insurance Company, 2022 CanLII 14959 (ON LAT). It ordered a videoconference hearing and directed the parties to file written submissions and evidence in advance. The respondent filed written submissions, and the accompanying documents were entered into evidence at the hearing on consent. The applicant did not file written materials but entered several documents as exhibits at the hearing. Both parties made oral submissions.

ISSUE

4There is one issue in dispute: in what amount is the applicant entitled to a lump sum indemnity for non-pecuniary damage under s. 73 of the Act?

RESULT

5The applicant is entitled to a lump sum indemnity of $20,510.64. Subtracting the $15,382.98 already paid, he is entitled to a further $5,127.66 plus interest.

PROCEDURAL ISSUE

6At the hearing, the applicant moved to add three issues: whether he was entitled to physiotherapy services proposed in two treatment plans, and whether he was entitled to the cost of an assessment for which he did not submit a treatment plan. The respondent objected to these issues being added because the applicant had not provided notice, and it had not prepared to argue them at the hearing.

7I denied the motion for the following reasons.

8The applicant communicated to the respondent at times that he is entitled to treatment that it denied, but he did not specify what services he intended to add as issues until the hearing was underway.

9The Case Conference Report and Order (“CCRO”) of September 6, 2022 identified two issues: is the applicant entitled to a lump sum payment for non-pecuniary loss, and if so, in what amount? The CCRO noted that there were currently no treatment plans in dispute, and directed the parties to contact the Tribunal if they agreed that any should be added as issues.

10The applicant argues that he made two efforts to add the issues after the case conference:

i. He sent six emails to the Tribunal and the respondent on October 3, 2022, another on October 4, 2022, and another on November 10, 2022. There are many documents embedded in or attached to the emails. One of the attachments is an 81-page collection of documents that includes the two disputed treatment plans for physiotherapy;

ii. On September 14, 2022, the applicant brought a motion seeking “reimbursement and treatment.” The Notice of Motion states that the applicant has been paying out of pocket for physiotherapy, massage therapy, and other unspecified treatment, and that he had previously sent doctors’ reports and receipts for physiotherapy and massage therapy to the respondent. However, it does not specify which denied services the applicant sought to add as issues. In a Motion Order of October 10, 2022, the Tribunal held that the applicant’s entitlement to the benefits in the application must be decided at the hearing and not on a motion. The Tribunal did not add any issues to the application or note that the applicant intended to add any issues.

11I find that these efforts did not provide adequate notice of what issues the applicant sought to add. The respondent could not reasonably be expected to sift through the many documents provided by email and infer that the applicant was requesting to have the two treatment plans and the cost of the assessment added as issues. The Notice of Motion stated only that the applicant was entitled to the cost of his treatment in general, and did not identify the two treatment plans for physiotherapy or the assessment.

12As a matter of procedural fairness, the respondent is entitled to notice of the case to meet. Because the applicant did not provide notice of what issues he sought to add, the respondent was not prepared to argue these issues at the hearing and would have been prejudiced if they were added at the last minute.

13On May 3, 2021—three weeks after the hearing—the applicant filed a Notice of Motion stating that I erred in declining to add the issues and seeking that they be decided. As this is essentially a request for reconsideration, it is not properly brought by motion before the release of the Tribunal’s decision. If, after having reviewed this decision, the applicant still seeks this relief, he may submit a request for reconsideration under Rule 18 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission.

IN WHAT AMOUNT IS THE APPLICANT ENTITLED TO A LUMP SUM INDEMNITY FOR NON-PECUNIARY DAMAGE?

14In a letter dated August 20, 2020, the respondent advised the applicant that it had calculated the lump sum indemnity to be $15,382.98, which it paid. It maintains that this is the correct amount. It relies on an assessment conducted by Dr. J. Varin, an orthopaedic surgeon. It also commissioned an expert report on Quebec law from M. J.-F. Lamoureux, a lawyer who practises in this area.

15The applicant submits that he is entitled to the maximum amount of $256,383.00 less the $15,382.98 paid, for a total of $241,000.02. He relies on an assessment conducted by Dr. C. Tadros, an orthopaedic surgeon.

The statutory scheme

16The applicant was insured in Ontario and would normally be entitled to benefits pursuant to the Schedule. Because the accident occurred in Quebec, s. 59 of the Schedule entitled him to elect to receive benefits in the same amounts and subject to the same conditions as if he were a resident of Quebec and entitled to payments under Quebec law. Subsections (1) and (4) set out criteria that must be met for him do so. The respondent concedes that these criteria are met.

17Statutory automobile accident benefits in Quebec are governed by the Act and its regulations. Under s. 73 of the Act, a lump sum indemnity is available for loss of enjoyment of life, pain, mental suffering, and other consequences of the temporary or permanent injuries or functional or cosmetic sequelae that a victim may suffer following an accident. The amount of the lump sum indemnity is determined pursuant to the Regulation Respecting Lump-Sum Compensation for Non-Pecuniary Damage, CQLR c A-25, R 10 (the “Regulation”).

18The parties agree that the applicant sustained a permanent functional impairment within the meaning of the Regulation. Section 6 provides that non-pecuniary damage is evaluated by identifying the functional units listed in Schedule I that are permanently impaired, determining for each functional unit the category of severity that best represents the victim’s situation and the corresponding percentage, and, if multiple percentages are calculated, determining an overall percentage according to a given formula. Section 7 provides that the amount of the lump sum is determined by multiplying the overall percentage by the maximum amount. The maximum amount specified in s. 73 of the Act and s. 7 the Regulation is $175,000. According to M. Lamoureux’s report, this amount has been indexed for inflation since it was legislated in 1990. In 2020, the year in which the respondent calculated the lump sum indemnity, it was $256,383.00.

Impairment of the ability to move and maintain position of the head and trunk

19Dr. Varin and Dr. Tadros identified permanent impairments of two functional units: ability to move and maintain position of the head, and ability to move and maintain position of the trunk. These impairments were caused by the applicant’s cervical and lumbar spine injuries, respectively.

20Dr. Varin and Dr. Tadros agree that the impairment of the ability to move and maintain position of the trunk falls in severity category two. They disagree on the severity of the impairment of the ability to move and maintain position of the head. Dr. Varin placed it in category one, and Dr. Tadros placed it in category two.

21The Categories of Severity Table under section (11) of Schedule I sets out the test for each category and the corresponding percentages.

22Category One corresponds to a 2% rating. It is defined as follows:

The result of the overall evaluation of active mobilization capacity is between 1 and 10, indicating a slight difficulty with activities requiring moving and maintaining the position of the head.

23Category Two corresponds to a 4% rating. It is defined as follows:

The result of the overall evaluation of active mobilization capacity is between 11 and 20, indicating a moderate difficulty with activities requiring moving and maintaining the position of the head;

or Regular and permanent inconveniences due to a medical necessity to avoid activities requiring

− Extended periods of immobilization of the head and neck; or

− Repetitive or frequent efforts that place significant strain on the neck.

24The difference in Dr. Varin’s and Dr. Tadros’s findings lies in their choice of method:

i. Dr. Varin conducted an overall weighted evaluation according to the method set out in ss. (11)(3) of Schedule I. This consists of measuring decreases in active mobilization (i.e. active range of motion) in several planes. Dr. Varin identified decreases corresponding to eight points and therefore placed the impairment in category one.

ii. Dr. Tadros did not conduct an overall weighted evaluation. He opined that the impairment fell under the second branch of category two because the applicant should avoid prolonged static positions of the cervical spine and repeated activities requiring manipulation of “important” weights.

25The applicant argues that Dr. Tadros’s opinion should be accepted because it is more consistent with the descriptions of his injuries in several treatment plans, a Disability Tax Credit Certificate, lumbar spine radiographs, and an independent assessment report regarding his eligibility for an income replacement benefit. He argues that Dr. Varin’s opinion should not be accepted because it was cursory, with the physical examination lasting only 25 minutes.

26The respondent argues that Dr. Varin’s opinion should be preferred because the overall weighted evaluation is the most objective method. It argues that Dr. Tadros’s opinion should not be accepted because it does not align with the test set out in category two.

27I accept both Dr. Varin’s and Dr. Tadros’s opinions. As they applied different tests, there is no apparent inconsistency in their findings.

28I accept Dr. Varin’s rating based on the overall weighted evaluation. Given that it is based on straightforward measurements of active mobilization, it is not invalidated by the brevity of the physical examination or any failings in Dr. Varin’s other inquiries.

29I also accept Dr. Tadros’s rating under the second branch of category two. Although he did not replicate the exact wording of the Categories of Severity Table, his meaning is the same. Prolonged static positions of the cervical spine are equivalent to extended periods of immobilization of the head and neck, and repeated activities requiring manipulation of important weights is equivalent to repetitive or frequent efforts that place significant strain on the neck. Dr. Varin did not express an opinion on the applicant’s ability to engage in such activities.

30Both Dr. Tadros and Dr. Varin documented permanent and regular inconveniences caused by the applicant’s cervical spine impairment. He continues to experience neck pain. He described the pain to Dr. Varin as eight out of 10 in intensity and said that he takes Advil and Tylenol every day. He reported to Dr. Tadros that the pain is constant, but it increases when he maintains static positions and engages in activities. He reported to Dr. Tadros that he cannot run, exercise, or go to the gym, and to Dr. Varin that he cannot do exterior house maintenance, work out at the gym, or run, that he can do only a little walking or cycling, that he can only drive for 30 minutes at a time, and that he can only lift loads of up to 15 or 20 pounds.

31I do not accept the respondent’s submission that the overall weighted evaluation ought to be preferred. Preferring one approach over another is inconsistent with the direction given in s. 5 of the Regulation and s. (11) of Schedule I that the category of severity is determined by the “situation with maximal impact”:

i. Section 5 provides that the category of severity of an esthetic or functional unit impairment is determined by the situation having the maximum impact among the situations that correspond to the result of the evaluation of the permanent impairments;

ii. Subsection (11)(2) of Schedule I provides that the category of severity is determined by the situation with maximal impact, either the result of the overall weighted evaluation or any other situation described, including functional restrictions; and

iii. The Categories of Severity Table states that non-pecuniary damage is assessed with reference to the situation with maximum impact of the categories it describes.

I take these provisions to mean that when an impairment meets the test for more than one category of severity, the higher category is used to calculate the lump sum indemnity. In oral argument, the respondent agreed that this is the correct interpretation.

32As I accept both Dr. Varin’s and Dr. Tadros’s findings, the situation of maximal impact is category two, which corresponds to a 4% rating.

Other impairments

33The applicant submits that he is entitled to a lump sum indemnity for impairments other than those identified by Dr. Varin and Dr. Tadros. He referred me to diagnoses of his injuries in the treatment plans, Disability Tax Credit Certificate, lumbar spine radiographs, and the income replacement benefit assessment report. In addition to the cervical and lumbar spine injuries, these documents identify headaches, a possible soft-tissue injury of the right hip, a soft-tissue injury of the left hip, and a left ankle sprain/strain.

34The respondent submits that the applicant is not entitled to a lump sum indemnity for any of these other alleged impairments. Relying on M. Lamoreux’s opinion, it argues that s. 142 of the Administrative Justice Act, CQLR c J-3 bars the Tribunal from departing from the experts’ reports because it may only take notice of evidence that the parties have been given an opportunity to comment on or refute. It also argues that the documents relied upon by the applicant do not meet the requirement of s. 4 of the Regulation that evaluations must be performed in accordance with the guidelines provided in Schedule I and the result must be explainable by accepted medical knowledge supported by the objective findings found on clinical examination.

35I find that the applicant is not entitled to a lump sum indemnity for impairments other than those identified by Dr. Tadros and Dr. Varin. The applicant has not identified what functional units are impaired by his other injuries or the severity of those impairments. Section 142 does not prevent me from taking notice of the documents tendered by the applicant because they were made exhibits and the respondent had the opportunity to address them in oral argument. However, I agree that these documents do not meet the requirement that permanent impairments must be evaluated in accordance with Schedule I of the Regulation. Because they were written for different purposes, they do not address whether the applicant’s other injuries meet the criteria for a lump sum indemnity according to the method set out in the Regulation.

Conclusion

36I find that the applicant is entitled to a lump sum indemnity for category two impairments of his ability to move and maintain position of his head and his ability to move and maintain position of his trunk. Each of these impairments corresponds to a 4% rating, making an 8% overall percentage. Multiplying the overall percentage by the maximum amount of $256,383.00, the amount of the lump sum indemnity comes to $20,510.64. Subtracting the $15,382.98 already paid, I find that the applicant is entitled to a further $5,127.66 plus interest in accordance with s. 83.32 of the Act.

ORDER

37The applicant is entitled to $5,127.66 plus interest.