Licence Appeal Tribunal File Number: 21-006044/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:
Carmelo Consagra
Applicant
and
Economical Insurance
Respondent
DECISION [AND ORDER]
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Carmelo Consagra, Applicant
Kevin Wolf, Counsel
David Tomovski, Counsel
For the Respondent:
Ray Ramsarran, Adjuster
Martin Forget, Counsel
Nivedita Misra, Counsel
Court Reporter:
Courtney Kelly
Heard by Videoconference:
September 13 to 15, 2022
REASONS FOR DECISION [AND/OR ORDER]
BACKGROUND
1This proceeding concerns a dispute between an insured person (the “applicant”) and an insurer (the “respondent”) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on September 15, 2018.
ISSUES IN DISPUTE
2On consent, the Tribunal amended the following issues in dispute:
a. Issue #2 was amended to a psychological assessment.
b. Issue #3 was amended to a chronic pain assessment.
3On consent, the Tribunal added the following issue in dispute:
a. The applicant added an additional treatment plan for physical therapy in the amount of $4,036.59. This is marked as issue #4.
4The issues to be decided in the hearing are:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and the $3,500.00 limit and in the Minor Injury Guideline?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Jeremy Frank in a treatment plan/OCF-18 (“plan”) submitted July, 22, 2019 and denied October 31, 2019?
Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Synoptic Medical Assessment Inc. in a treatment plan/OCF-18 (“plan”) submitted February 17, 2021 and denied February 19, 2021?
Is the applicant entitled to $4,036.59 for physical therapy proposed by Core Health Care in a treatment plan/OCF-18 (“plan”) denied on May 30, 2022?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based on the evidence and submissions, I find that the applicant sustained predominantly minor injuries as defined under the Schedule for the reasons that follow.
Exclusion of witness
6At the hearing, the applicant’s counsel sought to exclude Mr. Ramsarran, the adjuster, on the basis that the client is Economical and not the adjuster. If Mr. Ramsarran was asked to provide evidence, he should not observe the proceedings prior to giving evidence. The respondent submitted that the adjuster is the instructing client and not a witness. He was not on the applicant’s witness list and nor had been summoned.
7The exclusion of witnesses from a hearing is a discretion the Tribunal has as part of its power to control its own process. Witnesses may be excluded to ensure that the Tribunal hears testimony from each witness that has not been tailored or influenced by hearing the testimony of other witnesses. Under s.5.2(4) of the Statutory Powers Procedure Act RSO 1990, c S.22 (“SPPA”), all the parties participating in a hearing must, in an electronic hearing, be able to hear any witnesses throughout the hearing.
8Under s.10.1 of the SPPA, a party may call and examine witnesses, present evidence and submissions and conduct cross-examinations of witnesses. In order to do so, the party must know what the evidence and representations of the opposing party are. That means each party should be able to attend the hearing and hear the evidence and arguments, and this does not require the consent of the opposing party. If the party is represented by counsel, they are unable to instruct counsel if they are excluded from the hearing and do not know what the evidence is. To exclude such a party would result in limiting their counsel’s effectiveness by being unable to get instructions during the hearing.
9The Divisional Court decision in Narayan et al. v. Dhillo, 2020 ONSC 7273 is directly on point. In that case, the corporate defendant’s employee attended the hearing as its representative and to instruct counsel. The employee had been personally named as a defendant in the action and noted in default. The employee was going to testify on behalf of the corporate defendant. The trial judge excluded the employee representative from the Court because he was going to be testifying. The Divisional Court held that the exclusion was a miscarriage of justice. The trial judge had a broad discretion to exclude witnesses at the request of a party, but that discretion did not extend to excluding a witness whose presence was essential to instruct the lawyer.
10I found no reason to reject the submissions from the counsel for the respondent that he was taking instructions from Mr. Ramsarran as the representative for the respondent. I therefore accepted the respondent’s submissions that Mr. Ramsarran’s presence was required to instruct the respondent’s counsel. For these reasons, I refused to exclude Mr. Ramsarran from the hearing.
ANALYSIS
Issue i: The Minor Injury Guideline
11Section 3(1) of the Schedule 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 and includes any clinically associated sequelae to such an injury.”1
12Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
13The onus is on the applicant to show that his injuries fall outside of the MIG.2
Did the applicant have a pre-existing condition?
14The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.
15Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 cap on benefits. In order to be removed from the MIG, 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 limit on treatment costs under the MIG.
16I find that the applicant did not have any pre-existing conditions that would remove him from the MIG.
17The applicant submitted that his condition of rheumatoid arthritis would remove him from the MIG. It is his position that the condition of rheumatoid arthritis prevents his maximal medical recovery.
18The respondent submitted that the applicant’s rheumatoid arthritis was under control and in remission.
19Based on the totality of the evidence before me, I do not find that the applicant has a pre-existing condition that would remove him from the MIG.
20The applicant testified that he was diagnosed with rheumatoid arthritis in 2015. This was prior to the accident. He was diagnosed by Dr. Allen Kagal, who is a rheumatologist. The applicant testified that the severity varies from day to day and that it caused him to have sleepless nights and headaches. When asked whether the pain was continuous, he stated:
Yes and no. I mean, there were days where -- there were days where, you know, two, three, four days, sometimes longer, where the pain was constant, and there were other times where the pain would be there, but it wouldn’t be in the same areas, right? It would just go from my knee to my ankles, to my neck, to my hands. You know, it just depended where it was for the time being, which in fact is still what I’m going through.
21The applicant has continued to see Dr. Kagal on an annual basis. He was prescribed medication which helps him manage the pain.
22Dr. Stephen Brown, anesthesiologist, stated in his report dated March 1, 2021 that “in my opinion, the client [patient] has relevant pre-existing conditions (rheumatoid arthritis) that will prevent him from reaching maximal medical recovery if subjected to the confines of the Minor Injury Guideline (MIG).” Dr. Brown’s report lacks an analysis as to how he came to this conclusion. At the hearing, Dr. Brown stated that his knowledge is part of the analysis.
23Dr. Brown did not review the CNRs from Dr. Kagal. When asked whether without having records, you cannot make an opinion, he stated that “no because my knowledge of the disease made me able to make general comments and how it works.” The assessment was completed over video, not in person. Dr. Brown also admitted that he places a lot of weight on what a patient tells him.
24Dr. Alan Ali, chiropractor, testified that the applicant told him he had rheumatoid arthritis. At the time, there were no documents that were provided of anything other than diagnostic imaging of his thoracic spine from 2018. He stated that “rheumatoid arthritis is one of those conditions where it can cause symptoms to be more prolonged and can lead to -- can be a secondary cause of chronic pain for patients.”
25The insurer examiner, Dr. David Mula, physician, reviewed the CNRs of Dr. Kagal. Dr. Mula testified that the applicant told him that he had pre-existing rheumatoid arthritis and that it was well-controlled. Dr. Mula conducted a physical examination and reviewed medical documentation. In his report dated May 3, 2021, Dr. Mula stated that:
The medical brief reveals pre-existing rheumatoid arthritis. According to the claimant, he had little to no pre-existing pain secondary to this condition at the time of the subject motor vehicle accident. He stated that the pain was well controlled by medication. He reports that his left wrist pain is now more frequent than it was prior to the subject motor vehicle accident, and otherwise, based on his history, there is no ongoing exacerbation. He stated that the motor vehicle accident did not worsen the pre-existing pain in his hands and digits. There is no clear evidence of his pre-existing rheumatoid arthritis having hindered his ability to recover from the soft tissue injuries sustained in the subject MVA. Furthermore, the objective clinical findings at this time are relatively few. Overall, there is no compelling evidence that the insured person does not come within the MIG because of his pre-existing medical condition.
26The respondent is also relying on the CNRs of Dr. Kagal. In the CNRs dated January 5, 2016, Dr. Kagal reported that the applicant was recently diagnosed with rheumatoid arthritis and that he is doing significantly better. By July 15, 2016, Dr. Kagal noted that the applicant’s rheumatoid arthritis was in remission. The CNRs of November 18, 2016, March 17, 2017 and July 28, 2017 note that the applicant’s rheumatoid arthritis was under excellent control.
27The applicant did not see Dr. Kagal until August 14, 2019. The CNRs from this appointment note that “I have not seen him in a couple of years. He continues to be doing well with regards to rheumatoid arthritis with no significant flares [ups] since last seen. Carmelo’s rheumatoid arthritis is under excellent control. I have ordered repeat x-rays of wrists and hands to ensure that there are no erosive changes. Otherwise, I have made no changes to his management. I will be pleased to reassess him in six months.” The applicant saw Dr. Kagal on June 24, 2021. Dr. Kagal again noted “Carmelo’s rheumatoid arthritis is in remission. I have not made any changes to his management. I will be pleased to assess him in 6 months time.”
28I prefer Dr. Mula’s report and evidence over Dr. Brown’s report and evidence. Dr. Mula reviewed the applicant’s medical history pre- and post-accident including the CNRs from Dr. Kagal. Dr. Brown did not review all of the applicant’s medical records. He relied on the on the applicant’s subjective statements. Dr. Brown did not conduct a physical examination. I do not find his findings to be consistent with the evidentiary record. As such, I am assigning less weight to Dr. Brown’s assessment and testimony.
29Dr. Mula’s report and evidence is consistent with Dr. Kagal’s CNRs. Dr. Kagal’s CNRs show that the applicant’s rheumatoid arthritis was in remission before and after the subject accident. Although there is a gap in the visits, the applicant reported that he did not have any significant flares since his last visit, which was before the subject accident. His rheumatoid arthritis was in remission. The fact that he did not see Dr. Kagal between March 2017 to January 2018 leads me to believe that the rheumatoid arthritis was not an issue before or after the accident. I’m not persuaded by the applicant’s testimony that “just because I’m not mentioning [a] flare up, it doesn’t mean that I’m not having pain.”
Injuries from a previous accident that occurred on January 10, 2018
30The applicant submitted that he should be removed from the MIG based on the injuries sustained in the January 10, 2018 accident. In support of his case, he relied on the testimony of Dr. Ali. Dr. Ali testified that the applicant sustained a whiplash injury from the January 2018 accident. According to Dr. Ali, the applicant was still suffering from his injuries from the previous accident. He testified that “because the injuries were similar to the January MVA, it was still ongoing. Multiple MVAs can complicate response to therapy because there was a previous MVA. When they sustain multiple injuries, it can prolong recovery as well as the history of rheumatoid arthritis.” The respondent submitted the applicant did not sustain any lasting injuries from the January 2018 accident.
31I find that Dr. Ali’s conclusions to be contradictory with the CNRs from Core Health Care. Prior to the subject accident, the applicant showed significant progress and improvement from the injuries from the previous accident. The CNRs from Dr. Ali were put to him and he agreed that by the first week of April 2018, the applicant was not reporting any pain. When asked about the fact that it was suggested that the applicant improved, Dr. Ali stated “in my opinion, I still think he needed therapy and was not fully recovered. Subjectively he felt relief which was temporary. He was not fully recovered.” If Dr. Ali did not feel that the applicant was fully recovered, it raises the question why this was not documented in the notes. I’m not persuaded by Dr. Ali’s comments.
32Based on the totality of the evidence before me, I do not find that the applicant has a pre-existing condition that would remove him from the MIG.
Post-Concussive Syndrome
33Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, he suffered a concussion or post-concussive syndrome.
34Neither party has provided submissions as to whether or not the applicant suffered a concussion or post-concussive syndrome as a result of the accident.
35The ED Provider Notes from Mackenzie Health dated September 15, 2018 note that there was no head injury or loss of consciousness. The applicant testified that he has headaches, but that they are caused by the neck and lower back pain. Other than the fact that there are complaints of headaches, the applicant did not submit any evidence that supports that he suffered a concussion or post-concussive syndrome. Nor is there a formal diagnosis of such.
36Based on the totality of the evidence before me, I do not find that the applicant has sustained a concussion or post-concussive syndrome as a result of the accident that would remove him from the MIG.
Did the applicant sustain a predominantly minor injury?
37I find that the applicant has not provided the evidence necessary to establish on a balance of probabilities that his injuries fall outside of the MIG.
38Neither party made submissions about whether or not the injuries that the applicant sustained in the subject accident are predominantly minor injuries.
39The applicant did not submit any records or diagnostic imaging to show that his injuries were more than a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae to such an injury.
40As such, I find that the applicant’s physical injuries are predominantly minor injuries as per the definition set out in the Schedule.
Psychological impairment
41A psychological impairment, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include accident-related psychological impairments.
42The applicant submitted that he has psychological impairments. He is having difficulty sleeping and has triggering thoughts. The respondent submitted that the applicant does not have psychological issues.
43I find that the applicant has not demonstrated that he suffers from a psychological impairment that would remove him from the MIG for the following reasons.
44The applicant is relying on the reports of Dr. Wilderman, physician (chronic pain consultant) and Dr. Brown, anesthesiologist. As part of the Chronic Pain Assessment with Dr. Wilderman, the applicant underwent the Beck Depression Inventory-II, the Beck Anxiety Inventory and the PTSD Symptom Scale Interview for DSM-V. It was found that he had mild anxiety, moderate depression and mild symptoms of PTSD. However, Dr. Wilderman noted that the results would be best corroborated by a professional in the field such as a psychologist or psychiatrist.
45Dr. Brown had the applicant complete the Pain Catastrophizing Scale and found that the results suggested a severe level of disability and psychological distress. He opined that “patients who scored above the 75th percentile (similar to the client) on the PCS were at increased risk of remaining unemployed one year post injury (70%), describe themselves as totally disabled for occupationally related activities (70%), and scored above 16 (moderate depression) on the Beck Depression Inventory (BDI-II) (66%).
46In denying that the applicant has a psychological impairment, the respondent is relying on a report dated October 17, 2019 by Dr. Marc Mandel, psychologist. Dr. Mandel opined that “it appears from the response to clinical interview and psychological testing, in conjunction with document review and Mr. Consagra’s presentation, that there is a lack of consistent objective or subjective information present that would support poor prognosis or DSM V diagnosis and or suggest that he suffers clinically significant symptoms that would indicate a substantial psychological impairment as a result of the subject motor vehicle accident at this time.”
47The CNRs of Dr. Ravi do not show ongoing psychological complaints. This raises the question that if the applicant had psychological issues, why were they not addressed with his doctor so that he could get treatment or be assessed.
48I prefer the findings of Dr. Mandel over Dr. Wilderman and Dr. Brown. Dr. Mandel is a psychologist and has expertise in the subject matter. Dr. Wilderman and Dr. Brown are not experts in this area. Moreover, the lack of complaints to Dr. Ravi about psychological issues appears to reinforce Dr. Mandel’s conclusion.
49As such, I find that the applicant has not demonstrated that he has any psychological impairments that warrant removal from the MIG.
Chronic Pain
50I am not satisfied that the applicant has chronic pain as a result of the accident.
51The American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition 2008, pp 23-24 (’AMA Guides’) identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome:
the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
excessive dependence on health care providers, spouse, or family;
secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
withdrawal form social milieu, including work, recreation, or other social contacts;
a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.
52The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule for MIG purposes. The Tribunal has adopted the use of the AMA Guides as an interpretative tool for evaluating chronic pain claims in the absence of a diagnosis.
Dr. Wilderman’s report
53In his report dated October 25,2021, Dr. Wilderman addresses the criteria under the AMA guides. However, for reasons below, I assign less weight to his opinion.
54Dr. Wilderman opined that “patient scored positive criteria 2, 3, 4, 5 and 6, which is a score of 5/6, which meets the threshold for a probable diagnosis of chronic pain syndrome. Based on the above-noted score as well as my own assessment findings, it is my medical opinion that, as a result of the motor vehicle accident, Mr. Consagra has developed chronic pain syndrome.”
55There are a couple of issues with Dr. Wilderman’s report. Dr. Wilderman notes that “patient continues to attend regular medical appointments (including family physician, specialist appointments, physical rehabilitation appointments, psychological treatment, etc.). This is inconsistent with the evidence. There is no indication in the records that the applicant was seeking psychological treatment. Moreover, the CNRs show that there was a gap in treatment.
56With respect to secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain, Dr. Wilderman stated “patient reports a significant decrease in the level of activity since the subject accident (outlined in detail in the Activities of Normal Living Pre- and Post-Accident section of my report), which has resulted in deconditioning and aggravation of his impairments.” Dr. Wilderman is relying on the applicant’s self-reporting. He did not provide an analysis as to how he came to this conclusion or provide any references to the objective evidence that supports this conclusion.
57Under criteria 4, Dr. Wilderman noted that the applicant experiences a substantial and continuous impairment of his ability to perform his employment functions, housekeeping/home maintenance tasks, and recreational activities as a result of his impairments. However, the applicant resumed working 45 hours a week and also has a construction business. This is inconsistent with Dr. Wilderman’s conclusion.
58Under criteria 5, Dr. Wilderman opined that:
Patient reports constant pain in his lower back, neck, and right shoulder, as well as frequent headaches, which have been present for a duration of approximately 3 years; this is well beyond the normal healing time expected for his injuries to resolve. The patient’s pain has resulted in a substantial impairment of his activities of normal living, as outlined in the Activities of Normal Living Pre- and Post-Accident section of my report above.
59Dr. Wilderman relies on the applicant’s self-reporting to come to this determination. There is also an inconsistency in what the applicant told Dr. Wilderman. For example, Dr. Wilderman noted that the applicant required modified duties for 6.5 months. At the hearing, the applicant mentioned that he was given accommodations. But the applicant never provided any evidence from his employer that substantiates that he was on modified duties for 6.5 months. Moreover, the duration of 6.5 months was never brought up at the hearing. Furthermore, during the cross-examination, he was asked that “and the note also says that you don’t require any modified duties, correct?” The applicant stated, “that’s correct”. This is inconsistent with Dr. Wilderman’s report.
60With respect to criteria 6, the applicant reported to Dr. Wilderman that his pain and limitations prevent him from spending leisure time with family and friends, attending social and community events, playing ball hockey, wood working, and performing pre-accident caregiver, employment, and housekeeping/home maintenance functions as he did previously. He further reported taking his anger and frustration out on family members, thinking his condition is a burden to others and feeling confined to his home since the accident.
61Dr. Wilderman does not provide any analysis as to how he reached this conclusion. He does not provide any specific evidence regarding the applicant’s limitations and how it disrupts or disables his pre-accident activities of daily living. Other than the examination Dr. Wilderman conducted, he did not specify what types of testing methods he used to evaluate his functional capacity. He is relying on the applicant’s self-reporting.
62Moreover, the applicant returned to work and is working full-time. At the hearing, the applicant testified that he was attending church, but was not as social because it was hard to sit in the room because of pain. He also mentioned that he was helping his daughter clean up her Legos when he hit his head on a 2 X 4. Although I do not doubt that the applicant has pain, I do not find that it prevents him in engaging in his pre-accident activities of daily living.
63For these reasons, I am not persuaded by Dr. Wilderman’s opinion.
64The applicant is also relying on a Chronic Pain Assessment Report from Dr. Brown dated March 1, 2021. Dr. Brown does not address the AMA Guides. He diagnosed the applicant with chronic pain lumbar spine (mechanical, extension-aggravated Pattern 21, (facet/SI joints), secondary hyperalgesia) and chronic pain cervical spine (WAD 2, myofascial +/- mechanical - facet joints, secondary hyperalgesia).
65I am assigning less weight to Dr. Brown’s opinion for the following reasons. The applicant attended a virtual assessment. Dr. Brown did not conduct a physical examination. When asked at the hearing whether doing assessments virtually affected his ability to offer an opinion, Dr. Brown stated “yes there are some advantages and disadvantages. Less travel time and lower risk scenario. Disadvantage is the physical exam component. It’s not fulsome. I can do some basic stuff over the virtual.” He testified that he was able to conduct the assessment and that it was not deleterious. I am not persuaded by Dr. Brown’s position. I find that a physical examination is an important component when determining whether an individual suffers from chronic pain.
66Dr. Brown did not review the family physician’s records from March 2019 to March 2021. Nor did he have the prescription summary for this two-year period. Dr. Brown testified that he thought the record was complete. He was also not provided with the CNRs from Dr. Kagal and was unaware of the fact that the applicant had not seen him since March 2017. Dr. Brown also admitted that he didn’t have access to the records after the accident.
67With respect to whether there were changes before or after the accident, Dr. Brown testified that he relied on what the applicant told him. During the redirect, counsel for the applicant asked “in terms of expressing complaints, who is the better person? Records or person?” Dr. Brown testified that he puts a lot of weight on what the applicant tells him.
68I am not persuaded by Dr. Brown’s opinion. I find that his opinion was primarily based on the applicant’s self-reporting. In my view, the medical evidence that Dr. Brown did not review would have given him a more fulsome picture of the applicant’s conditions. His opinion is not corroborated by the medical evidence. For all of the reasons noted above, I assign less weight to Dr. Brown’s report and testimony.
69I am also not persuaded by Dr. Ali. At the hearing, when asked “are you able to give any diagnosis?”, Dr. Ali stated, “based on what I have seen with his treatment and up to now, the only thing he is suffering from is chronic pain.” While it would be permissible for a chiropractor to treat chronic pain, a diagnosis of chronic pain is beyond a chiropractor’s scope of practice. Therefore, I assign less weight to Dr. Ali’s opinion. Moreover, his opinion is inconsistent with the records, which show that there was an improvement in the applicant’s condition.
70The respondent is relying on a report from Dr. Mula. He opined that:
The claimant does not present with a pain condition of a magnitude that would reasonably necessitate the proposed Chronic Pain Assessment. There is no evidence of inappropriate medication usage, and there does not appear to be excessive dependence on health care providers or family, nor does there appear to be secondary physical deconditioning due to disuse or fear-avoidance of physical activity due to pain. The claimant has returned to work which bodes well for his clinical and functional outcomes.
71In relation to the applicant’s pain related complaints, Dr. Mula found that there were no pertinent objective clinical findings on examination. When asked about the applicant’s standing position, he stated “neutral position, normal curvatures, shoulder and pelvic heights were equal.” Dr. Mula testified that the relevance of this was that it is less likely that the applicant has chronic pain.
72I prefer Dr. Mula’s report and evidence over those of Dr. Brown and Dr. Wilderman. Dr. Mula reviewed the applicant’s medical documents, conducted thorough examinations and testing of the applicant and documented his findings. In contrast, Dr. Brown and Dr. Wilderman heavily relied on the applicant’s self-reporting and did not review all of the documents. As such, I find that the applicant does not have chronic pain syndrome.
73While I recognize that that the applicant has experienced pain since the subject accident, I have not been provided with compelling evidence that he should be removed from the MIG on this basis.
74As such, the applicant has not satisfied his onus to establish that he has chronic pain that may remove him from the MIG.
75The applicant submitted that all of the treatments that he received to date were reasonable and necessary for his recovery. The respondent submitted that the treatment plans are not reasonable or necessary and that the applicant has failed to discharge his onus to prove otherwise.
76I do not have any evidence before me to substantiate the amount of benefits paid to date. In any event, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.
77Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. Therefore, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule.
Award under section 10 of Regulation 664
78The applicant submitted that:
In May 2020, a letter was sent from our office to the respondent, with medical records. A response was given by the respondent five months later. That was directed only to counsel, not the applicant, which is improper. It should have been sent to the respondent [sic] as well. And it responded only stating that, “we continue to believe the applicant’s injuries are minor”. There’s a contractual obligation between the parties. The case law has suggested there’s a duty of good faith between the insurer and the insured, that they have a duty to investigate and continue to look into the -- into findings. This is egregious, it’s our position, that 11 months past. This was when Dr. Mula received the records within his report. So, that’s the first time when something is done. That’s -- almost one year has passed, yet the respondent is taking the position that the applicant is not doing any type of treatment.
79The respondent submitted that the applicant was supposed to provide particulars of the award he was seeking. None were provided. The respondent stated that “the applicant cannot just come here and now suggest that there is an 11-month gap in support of the special award.”
80As per Adjudicator Tillman’s case conference report and order, the applicant was supposed to provide particulars of the award 45 days after the case conference. I find that the applicant’s claim for an award is dismissed because the particulars of the award were not produced to the respondent by the document disclosure date. The applicant violated Rule 9.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. The applicant did not request consent from the Tribunal to file the particulars of the award claim late.
81As such, the consequence of not producing the particulars to the respondent is that the applicant cannot proceed with his claim for an award. I find it would be a breach of procedural fairness to the respondent to allow the applicant to proceed with the award without the particulars being produced in advance of the hearing. Therefore, the claim for an award is dismissed.
Interest
82The applicant is entitled to interest in accordance with s. 51 of the Schedule for the remaining amount the MIG limits for the benefits and/or assessments set out in the disputed treatment plans once incurred.
ORDER
83For the reasons outlined above, I find that the applicant:
i. Has not met his onus of proving that his accident-related impairments warrant removal from the MIG;
ii. Is entitled to the benefits set out in the disputed treatment plans up to the remaining amount of the MIG limits, plus interest in accordance with s. 51 of the Schedule, once incurred as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule; and
iii. Is not entitled to an award.
Released: January 25, 2023
Tavlin Kaur
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule, O Reg 34/10 as amended.
- Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24