Licence Appeal Tribunal File Number: 20-009162/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:
Aja McConnell
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Anita John
APPEARANCES:
For the Applicant:
Aja McConnell, Applicant
Terio Francis, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on October 8, 2018, 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 applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2On October 8, 2018, at approximately 11:40 a.m., the applicant was front seat belted passenger of 2006 Pontiac GT traveling on Number 6 Road, when suddenly the driver swerved to avoid hitting an animal and lost control of the vehicle causing it to roll over several times before coming to a stop 50 feet off the roadway.
ISSUES
3The following are the issues to be decided:
a. Whether the applicant’s injuries are predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and the $3,500.00 limit in ss. 18(1) of the Schedule?
b. Is the applicant entitled to $58.19 ($1,275.33 less $1,217.14 approved) for physiotherapy services, recommended by PT Health Fairview proposed by Don Lesa, physiotherapist, in a treatment plan (OCF-18), dated January 29, 2019?
c. Is the applicant entitled to $2,100.00 for a social work assessment, recommended by Susan Reid, social worker, proposed by Dr. Brenda Loewith, family physician, in a treatment plan (OCF-18), dated December 6, 2019, denied by the respondent on December 23, 2019?
d. Is the applicant liable to repay the respondent an undisclosed amount in income replacement benefits paid during the period from October 29, 2018, to January 6, 2019?
e. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
f. Is the applicant to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I have considered the following issues and made the following findings:
a. Are the applicant’s injuries predominantly minor as defined under the Schedule? I have concluded that they are. The parties agree the MIG limits have been exhausted.
b. Does the applicant have a pre-existing condition that would prevent recovery under the MIG? I have concluded that she does not.
c. Is the applicant liable to repay the respondent an undisclosed amount in income replacement benefits paid during the period from October 29, 2018, to January 6, 2019? Yes, I find that the applicant is liable to re-pay the respondent for the period of October 29, 2018, to January 6, 2019, plus interest pursuant to s. 52(5).
d. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delays payments to the applicant? I have concluded that it does not.
e. Given that I have found the applicant’s injuries are within the MIG and the parties agree that the MIG has been exhausted, I find it unnecessary to consider the reasonableness and necessity of the treatment plans and interest.
ANALYSIS
Applicability of the Minor Injury Guideline
5The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 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 also defined in s. 3. Section 18(1) limits recovery for medial and rehabilitation benefits for such injuries to $3,500.00 minus any amounts paid in respect of an insured person under the MIG.
6Subsection 18(2) of the Schedule makes provision for injured persons, who have a pre-existing medical condition to receive treatment more than the $3,500.00 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, and that will prevent the injured person achieving maximal recovery if benefits are limited to the MIG cap.
7In the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisional Court found that the applicant bears the onus of establishing entitlement to coverage beyond the $3,500.00 cap for minor injuries on a balance of probabilities.
Injuries Sustained
8On October 8, 2018, the applicant was taken by ambulance to Brantford General Hospital. At the hospital, emergency physician, Dr. Benoit noted “mild abrasion, same bruising, noted no deformity, pain localized to calf and no tenderness elsewhere.” The abrasions are minor injuries under the Schedule.
9The applicant was sent to X-ray at the hospital. By the time she returned from X-ray, the applicant claimed her pain was lessening.
10An x-ray conducted by Dr. Azra Khan on October 8, 2018, indicated that “there was no fracture or dislocation and that the alignment of left tibia or fibula routine is satisfactory.” The lack of fracture indicates that the applicant’s injuries are minor.
11On October 11, 2018, the applicant returned to the emergency room. The emergency doctor Dr. McQueen has concerns with compartment syndrome, but ultimately diagnoses the applicant with “road rash” or cellulitis on the back of her left leg.
12Cellulitis is a common bacterial skin infection that causes redness, swelling and pain in the infected area of the skin. Abrasions are defined as minor injuries under the Schedule.
13The applicant argues that depending on the severity of the compartment syndrome, it can be an impairment outside the MIG, especially if surgery was required to alleviate the swelling. I find this is not the case here, as the applicant has not been recommended for surgery. Sprains and partial tears are defined as minor injuries under the Schedule.
14On October 22, 2018, her treating physician, Dr. Brenda Loewith noted that the applicant was unable to straighten or put her weight on her left leg.
15Dr. Loewith referred the applicant to an ultrasound. Dr. Kwok-Liu performed an ultrasound of the applicant’s left leg on October 22, 2018. The ultrasound did not detect any abnormalities.
16In addition, Dr. Loewith referred the applicant to a radiologist, Dr. Miller. On November 10, 2018, Dr. Miller noted that the medical imaging confirmed the presence of “considerable soft tissue swelling involving the calf both medially and laterally.” Soft tissue swelling are minor injuries under the Schedule.
17On November 15, 2018, Don Lesar, treating physiotherapist, filled out the OCF-3, Disability Certificate, citing whiplash associated disorder type II (“WAD-II”) injuries and laceration of multiple muscles and tendonitis at lower leg level.
18On November 29, 2018, the applicant advised her physiotherapist at PT Health that she was feeling good and had forgotten her crutch in her car. Her gait was noted as having improved.
19The Treatment and Assessment Plan, dated January 29, 2019, submitted by Mr. Lesar, lists the injuries of the applicant as follows: WAD-II, with complaint of neck pain with musculoskeletal signs, laceration of multiple muscles and tendons at lower leg level. Part 4 of this form states the impairments fall within the MIG. Part 4 of the form also states that the treatment has already been provided under the MIG.
20On January 2, 2020, Dr. Loewith recommended the applicant to receive massage therapy and physiotherapy of her left lower leg, posterior neck, and shoulder pain, as a result of the accident. These impairments fall within the definition of the MIG under the Schedule.
21Based on the evidence before me, I find that the applicant sustained predominantly minor injuries, as defined under the Schedule, because of the motor vehicle accident.
22The applicant does not allege that she has a pre-existing physical condition that warrants her removal from the MIG. When she alleges pre-existing psychological condition, I will discuss that issue later in the decision.
Chronic Pain
23An insured person may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to simply have chronic pain; it must be accompanied by functional impairment.
24The applicant submits she is suffering from prolonged pain due to her injuries and unable to achieve maximum recovery under the MIG. The applicant relies upon the reconsideration decision, 17-000835 v. Aviva1 wherein the Tribunal found that the applicant’s chronic impairment was deemed as an impairment unsuited for treatment within the MIG.
25I find that Tribunal decision 17-000835/AABS is distinguishable as the applicant in that case provided evidence of a specific diagnosis, chronic pain syndrome. The applicant in this case has not provided a diagnosis of chronic pain syndrome from a physician, but relies on her own self-reporting.
26The respondent directed me to a Tribunal decision which discussed six criteria to determine whether an insured suffers from chronic pain. Although the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (AMA Guides) are not incorporated into the Schedule for the purposes of chronic pain, and I am not bound by them for this hearing, I agreed with the adjudicator in Y.F.T.L. v. Co-operators2 that the AMA Guides criteria are useful factors in assessing an insured’s claim of chronic pain, and I apply them here.
27According to the AMA Guides, at least three of the following six criteria must be met for a diagnosis:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances
(ii) Excessive dependence on health care provides, spouse or family,
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain
(iv) Withdrawal from social milieu, including work, recreation, or other social contracts
(v) Failure to restore pre-injury function after a period of disability, such that the physical activity is insufficient to pursue work, family or recreational needs
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
28The respondent submits, and I agree with the following:
(i) The applicant has not been prescribed medication for her accident-related pain complaints, but for family situations. In a CNR, dated December 16, 2016, Dr. Loewith notes that the applicant was “living with her dad who is anxious. Her mom feels he puts a lot of pressure on her. Takes a lot on her. Too much at times.”
(ii) There is no evidence of the applicant’s dependence on health practitioners, and the family physician records that there been reports of minor injury.
(iii) There is no evidence of avoidant behaviour or conditioning post-accident.
(iv) In addition, there is no evidence of social withdrawal, post-accident, as the applicant continues to work as a cashier at Harvey’s while also completing her studies at Mohawk College. In a CNR, dated August 20, 2020, Dr. Loewith noted that the applicant just finished her course at college and thinking of going back for post-graduate.
(v) There is no evidence of failure to restore pre-accident function. The applicant continues to engage in the activities of daily life. There is no medical evidence to indicate that her pre-accident functionality has been compromised.
(vi) There is no evidence of psychological or emotional distress because of the accident, aside from a pre-screen report as part of the campus counselling service.
29Based on all the above, the applicant has not shown that her pain meets the severity threshold of the AMA Guides and causes her a level of impairment that rises to remove her from the MIG.
Psychological Impairment
30An insured person may be removed from the MIG if they sustained a psychological impairment because of the accident, because the definition of “minor injury” in the Schedule does not include psychological impairments.
31The applicant submits that she suffers from anxiety and avoidance behaviour by citing the clinical notes from the PT Health. The notes were authored by a physiotherapist, and as such, making any diagnosis on psychological symptoms is outside the scope of their expertise.
32The applicant also cites the comments of social worker, Susan Reid, to prove symptoms of post-accident anxiety and depression. I find that commentary on symptoms is not akin to a diagnosis. I find that the comments are outside the scope of expertise of a social worker.
33Ms. Reid is a registered social worker, licensed to practice under the Ontario College of Social Workers and Social Service Workers who made an assessment based on the applicant’s social interactions and impairments. Ms. Reid does not provide clarification to the details of the testing conducted on the applicant that led her to conclude the applicant suffered from a psychological impairment.
34The onus is on the applicant to demonstrate psychological impairment resulting from the accident. The applicant fails to cite any psychological expert who ties her psychological impairment to the accident. It was open to the applicant to seek psychiatric review, which she failed to do.
Pre-Existing Conditions
35In the applicant’s submissions, she states that she was suffering from severe anxiety and depression which have been further exacerbated by the accident.
36In the past, the applicant used to take Cipralex for anxiety, depression and panic attacks. However, I am not directed to any evidence that demonstrates these pre-existing conditions prevent the applicant from achieving maximal recovery within the MIG. Simply having experienced medical issues in the past is not sufficient for removal from the MIG in the present, especially where there is no compelling evidence that these issues have been exacerbated.
37Dr. Loewith simply checked an option on the form indicating that the applicant had a permanent impairment. In making that statement, Dr. Loewith cited the “Medical Documentation Form” that was filled in while the applicant was attending Mohawk College. Dr. Loewith made the statement of “permanent disability” which I find is not a diagnosis, but, rather an option under the form, “Statement of Disability” to justify extra time to complete assignments. Dr. Loewith based the permanent impairment based on what the applicant stated on her college application form. As Dr. Loewith’s opinion was solely based on the applicant’s self-reporting in a non-medical context, I do not characterize this as “compelling evidence” as required by the Schedule.
38On the subsequent page of the form, the applicant’s disability was noted as “moderate” in the areas of concentration, memory, organization, time management, carrying/lifting, crouching and pain. However, I am not directed to any evidence that demonstrates these pre-existing conditions prevent the applicant from achieving maximal recovery within the MIG.
39I agree with Adjudicator Johal’s reasoning in B.W. v. Royal Sun Alliance Insurance, 2017 CanLII 19203 (ON LAT) at para. 25:
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 not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG. The applicant did not point me to any evidence that demonstrates this.
40I agree that the presence of a pre-existing condition alone is not sufficient to remove an applicant from the MIG. I find that the applicant has not provided enough evidence to support that she has a pre-existing injury that would prevent maximal recovery under the MIG.
41Based on the evidence before me, I find the applicant has failed to satisfy her onus to show that there is compelling evidence that she suffers from a psychological impairment that would take her outside of the MIG.
Did the respondent meet notice requirements under subsection 38(8) of the Schedule?
42The applicant submits that the respondent failed to provide “medical and all of the other reasons” as required by s. 38(8) of the Schedule. The applicant submits that reasons for denying the treatment plan is vague as there is no clear reason why the respondent denied the plan due to the MIG. The OCF-9 form, denying physiotherapy on February 1, 2019, in the amount of $58.19 ($1,275.53 less approved for $1,217.14) stated the following reason: diagnosis indicates that the MIG is appropriate.
43The OCF-9 form denying social worker counselling on December 23, 2019, in the amount of $2,100.00 stated the following reason: We have received a treatment and assessment plan (OCF-18) dated December 6, 2019, in the amount of $2,100 proposing social worker therapy services. Proposed is for treatment and assessment outside of the MIG. Our file documents indicate you sustained predominantly minor injuries in nature as a result of your treatment outside of the MIG. We are not able to approve the requested treatment. At this time, we will not be proceeding to an insurer’s examination and will await the requested documentation. Upon receipt of the requested documentation, we can give further consideration of this OCF-18. This OCF-18 is not approved.
44In addition, the applicant was provided log notes which emphasized that it was the applicant’s responsibility to provide supportive documentation, which was not received to date.
45I find that the respondent was clear in providing reasons explaining that the proposed treatment was denied because of the limits of the MIG, and the medical reason why the applicant was subject to the MIG (i.e., that her injuries were minor).
46The evidence does not show me that there was a breach of s.38(8) of the Schedule as claimed by the applicant. Each denial of benefit or explanation of benefits was sent by the respondent to the applicant, and there was no issue that it was successfully transmitted or received.
Cost of treatment plans
47Since I have found that the applicant sustained predominately minor injuries as defined under the Schedule, and she has not established a pre-existing condition or a psychological impairment, and that the MIG limit has been exhausted, the cost of the treatment plans in dispute are not payable.
Interest
48As no benefits are even overdue, it follows that interest is not payable.
Award
49An award under O. Reg. 664 operates as a type of penalty against insurers who do not act in good faith. First, the Tribunal must find that the insurer acted unreasonably in withholding or delaying payment of a benefit. If the Tribunal makes such a finding, the Tribunal may order the insurer to pay the insured person a lump sum of up to 50% of the amount to which the person was entitled at the time of the award together with interest on all amounts than owing to the insured (including unpaid interest) at the rate of 2% per month compounded monthly from the time of the benefits first became payable under the Schedule.
50The assessment of whether an insurer conducted itself reasonably will differ on a case-by-case basis. An insurer is not obligated to simply approve a benefit claim based on claim forms and treatment evidence in hand. This is especially the case when, as in this case, the treatment evidence did not provide compelling evidence that the applicant’s injuries were more than minor.
51Consequently, I find that no award under Regulation 664 is payable to the applicant with respect to the respondent’s determination of the benefits at issue.
Repayment of Income Replacement Benefit
52Section 52 of the Schedule governs the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer,” the insured person or any other person, or because of wilful misrepresentation or fraud.
53Sections 52(2) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is to be repaid within 12 months of the benefit payment; however, this timeline does not apply if the payment was originally paid to the person as result of wilful misrepresentation or fraud. The respondent has the burden of proving that the benefits were paid to the applicant, and that it is entitled to be repaid, on a balance of probabilities.
54The Tribunal has defined misrepresentation as any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts or a silence or failure to report facts. The Tribunal has also held that “silence or a failure to report” can constitute wilful misrepresentation.
55The applicant was paid income replacement benefit during the period from October 29, 2018, to January 6, 2019. The applicant received the income replacement benefit in the amount of $201.34 a week.
56The period is approximately 10 weeks, which indicates that the applicant must repay $2,013.40 to the respondent for the income replacement benefit that was paid while she was also working.
57In her log notes, dated June 18, 2019, the adjuster noted she was unable to calculate the IRB as on OCF-2, it is indicated that the claimant returned to work on October 29, 2018. The adjuster noted that she has no pay stubs for the half month of October, full month of November and December month. The adjuster requested further information from the legal representative.
58Another notation from the adjuster’s log notes, dated August 27, 2019, indicated that the applicant returned to work on October 29, 2018.
59On September 16, 2019, the adjuster sought clarification and requested that the applicant produce a Notice of Assessment or more pay stubs, but none was produced. I draw an adverse inference as a result. I find that the applicant had returned to work but gave the impression that she was not working.
60The respondent kept on trying to get the necessary information regarding the applicant’s employment to no avail. Ultimately, during the February 23, 2021, case conference, the respondent sought the production of the Harvey’s employment file be produced. The applicant was ordered to produce the Harvey’s employment file to determine if the applicant returned to work and how much she earned, up until IRBs were terminated. Based on the Tribunal’s order, the applicant ought to have known that these documents were essential for the determination of the IRB issue and chose not to produce them. I draw an adverse inference as a result.
61The applicant has provided no reason why she failed to comply with the order that was made at the case conference, to produce a copy of the Harvey’s file from October 8, 2018, to January 6, 2019, by April 30, 2021. At a bare minimum, the applicant provided a new hire form, dated March 22, 2018, and a termination form, dated May 18, 2019. These documents do not provide information when dates the applicant worked or how much she earned. I draw an adverse inference and am left to conclude that the employment file was not produced in its entirety, because it was unfavourable to the applicant.
62I find that relevant information, to calculate the quantum of repayment of IRBs for the deduction of post-accident income, lies exclusively with the applicant. The Schedule creates statutory benefits and requires applicants to take steps to facilitate an insurer’s determination whether they are entitled to benefits claimed or to their continuation. I find that the applicant’s failure to report was difficult for the respondent to obtain further documentation as requests went unanswered.
63I find that the applicant willfully misrepresented her work status by being silent or failing to report that she had returned to work, while continuing to collect IRB, even though no longer eligible under ss. 5 and 37(2)(e) of the Schedule. I find that by failing to advise the respondent that she had returned to work post-accident and by failing to provide the requested documentation such as pay stubs, notice of assessment, or the Harvey’s employment file, the applicant misrepresented her true work status to the respondent.
64Subsection 52(3) provides that is the notice of repayment is not given within 12 months after payment of the amount sought to be repaid, the person, to whom notice would have been given ceases to be liable unless it was originally, paid to the person because of wilful misrepresentation or fraud.
65I have already found that the respondent paid the applicant because she willfully misrepresented her work status while continuing to collect IRB. The exception in 52(3) applies here.
66As a result, I find that the applicant is liable to pay the respondent for the period of October 29, 2018, to January 6, 2019, plus interest pursuant to s. 52(5).
CONCLUSION
67I find that the applicant is liable to repay the respondent the amount of three weeks for income replacement benefit that was paid for the period of October 29, 2018, to January 6, 2019, plus interest pursuant to s. 52(5).
68The applicant has not met the onus on her to prove her injuries are not predominantly minor, that she has pre-existing injuries that would prevent maximal recovery if subjected to the MIG, or that she has a psychological impairment that would exclude her from the MIG. Therefore, the applicant is not entitled to the treatment plans in dispute. No interest is owing as there is no overdue payment of benefits. The applicant is not entitled to an award. The claim is dismissed.
Released: May 16, 2023
Anita John
Adjudicator
Footnotes
- 17-000835 v. Aviva 2018 CanLII 83520
- YFTL vs. the Co-operators General Insurance Company, 2020 ONLAT 19-002248/AABS