Kervin Charlery v. Economical Insurance Company, 2023 CanLII 50613

Licence Appeal Tribunal

21-001836/AABS

Licence Appeal Tribunal File Number: 21-001836/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:

Kervin Charlery

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Nivedita Misra, Counsel

Mai Nguyen, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Kervin Charlery, the applicant, was involved in an automobile accident on May 25, 2019, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was involved in a subsequent accident on July 5, 2019. As a result, the respondent removed the applicant from the Minor Injury Guideline (“MIG”). However, the respondent maintains that his injuries from the subject accident on May 25, 2019, remain treatable within the MIG limits.

ISSUES

3The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

ii. Is the applicant entitled to a cost of examination in the amount of $2,180.00 for a psychological assessment proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“plan”) dated October 20, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $2,195.00 for physiotherapy proposed by Whitby Wellness Centre in a plan dated July 16, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $3,339.95 for chiropractic treatment proposed by Whitby Wellness Centre in a plan dated January 21, 2020?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

5Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed plans, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit for treatment.

6Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

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 it can be established that accident-related injuries fall outside of the MIG or, under s. 18(2), that a documented pre-existing injury or condition combined with compelling medical evidence states that the condition precludes recovery if 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.

9It is the applicant’s burdento establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).

10The applicant submits he suffered multiple physical and psychological impairments as a result of this accident that fall outside the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. Additionally, the applicant raises the issue of causation in relation to a subsequent accident on July 5, 2019.

11The respondent submits the applicant has failed to meet his onus, as he has not provided any evidence of a pre-existing condition that would delay recovery, nor evidence of a psychological impairment from the subject accident. The respondent further submits that the applicant has not provided reliable evidence to satisfy the “but for” test in establishing a link between the accident and any deterioration in his physical or psychological condition, nor has he demonstrated that the subsequent accident was a factor in the causation of his injuries.

The applicant has not established he suffered a pre-existing impairment

12I am not persuaded the applicant has established on a balance of probabilities that he suffered from a pre-existing condition that would otherwise preclude his recovery following the accident if he remains in the MIG. As a result, he is subject to the MIG and the $3,500.00 treatment funding limit.

13It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG. Such a condition must be shown to prevent maximal medical recovery within the cap imposed by the MIG.

14Critically, none of the forms tendered refer to any pre-existing condition. This includes the Application for Benefits, the Disability Certificate, and the plans dated December 13, 2019, October 8, 2020, and May 29, 2021.

15The Disability Certificate completed by Dr. B. Milen, chiropractor, dated May 31, 2019 indicates impairments that include superficial injury to neck, sprain and strain of cervical spine, whiplash associated disorder with neck pain and musculoskeletal signs, lumbar and intervertebral disc disorders with myelopathy and radiculopathy, sciatica, and superficial injury of shoulder and upper arm. The duration of the impairments are listed as 9-12 weeks. No mention is made of any pre-existing condition.

16I am not persuaded the applicant has demonstrated he suffered a pre-existing rib fracture. The applicant’s submissions are largely predicated on a single diagnostic imaging report dated June 10, 2019. This report noted there was angulation of the left 8th rib bilaterally, “suggesting a fracture, but this may be old.” This is the only reference to any potential pre-existing injury in the totality of the evidence tendered by the applicant.

17Additional diagnostic imaging did not identify any rib fracture. Five chest x-rays dated April 11, 2019, July 6, 2019, July 29, 2019, September 8, 2019, and September 29, 2020 were normal, with no indication of a rib fracture. The only additional reference to potential fractured ribs was the applicant’s self-reporting to his family physician Dr. A. Sivaharan on September 30, 2019. In response, his physician noted there were no rib fractures on the x-ray reports.

18Otherwise, the records provided by Dr. Sivaharan and Whitby Wellness Centre Ltd. do not demonstrate any evidence of a pre-existing injury. The only injury sustained prior to the accident took place on April 11, 2019, when the applicant attended a hospital emergency room for musculoskeletal pain following an incident while lifting at his place of employment. However, there is no indication that this muscle strain was exacerbated by the subject accident. A WSIB Report filed on the day of the workplace incident resulted only in a recommendation that he limit lifting for a maximum of seven days, and a May 15, 2019 consult with Dr. R. Bhargva, cardiologist, led to a diagnosis of muscular chest pain and strain due to heavy lifting. The applicant failed to report any chest pain or rib injury in his post-accident visit to the emergency room on the date of the accident, so I cannot otherwise connect this injury to the accident.

19Nor am I persuaded that the tendonitis and plantar fasciitis in the applicant’s left foot are causally linked to the subject accident. Although these conditions were identified by Dr. A. Springer, chiropodist, on September 10, 2019, and Dr. A. Ali, orthopaedic surgeon, on November 12, 2020, neither physician linked these issues to the accident. Similarly, there was no link made between the accident and degenerative changes identified in the applicant’s left hip and lumbar spine in MRI scans dated July 21 and 24, 2021.

20Aside from the treatment plans at issue, the applicant has tendered no expert medical opinion that his physical injuries fall beyond the treatment limits of the MIG.

21Conversely, I find that the insurer’s examination (“IE”) physiatry reports tendered by the respondent stand uncontradicted. In the initial report provided by Dr. R. Zabieliauskas, dated August 23, 2019, he noted there was no objective quantifiable organic pathology attributable to the May 25, 2019 accident. Specifically, he stated the applicant reported no pre-existing medical conditions and that left-sided rib cage pain could not be related to the subject accident. Finally, Dr. Zabieliauskas concluded that the applicant sustained injuries that fell within the MIG and he could return to his previous employment without physical restrictions. Additionally, in the paper review dated April 1, 2020, Dr. Zabieliauskas noted the applicant’s accident-related diagnoses related to the subject accident had resolved and his prognosis from a physical medicine and musculoskeletal point of view was good.

22When I consider the totality of this evidence and the strength of the IE reports provided, I cannot conclude the applicant has established that a pre-existing condition would prevent maximal recovery of the minor injuries sustained in the accident. The diagnostic imaging report dated June 10, 2019 noting a potential rib fracture is an outlier that does not comport with the balance of the evidence tendered, including the additional diagnostic imaging reports and the clinical notes and records provided. Nor were the degenerative changes identified more than two years later in his hip and lumbar spine causally tied to the subject accident. Accordingly, I find that the applicant has not substantiated that he suffers from a pre-existing condition that would warrant his removal from the MIG.

The applicant has not established he suffered accident-related psychological impairment

23I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment that would warrant his removal from the MIG.

24I place no weight upon the Psychological Pre-Screening Report provided by Dr. L. Steiner, psychologist, following the screening dated September 25, 2020. This report was appended to the plan dated October 8, 2020 and provided a diagnosis of adjustment disorder, mixed anxiety and depression, and specific phobia. However, this diagnosis is based wholly on the applicant’s self-reporting. There is no reference to the medical records reviewed, nor to any psychometric testing. Dr. Steiner reported a change in mood, depression, sadness, difficulty concentrating, memory loss, and withdrawal from socializing. As a result, he recommended a psychological assessment. However, none of these symptoms are supported by the clinical notes and records tendered.

25Specific psychological complaints are conspicuously absent in the clinical notes and records provided by Dr. Sivaharan between January 9, 2018 and August 7, 2021. The sole mention of any psychological symptoms was on July 28, 2018, more than nine months pre-accident, when the applicant requested a physician’s note regarding potential stress leave from his employment due to the death of his grandfather and his father’s upcoming surgery. Notably, there are no references to any psychological impairment following the subject accident. Nor are there any notations with regard to potential psychological symptoms in the treatment records provided by Whitby Wellness Centre Ltd.

26Given the lack of any psychological symptom reporting and the weaknesses of Dr. Steiner’s pre-screen diagnosis, I find that the applicant has not established he suffered a psychological impairment as a result of the accident. Correspondingly, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of a minor injury.

The applicant has failed to meet the test for causation

27I am not satisfied the applicant has established he would not have suffered physical and psychological impairments but for the subject accident dated May 25, 2019.

28The test for establishing causation in accident benefits cases is the “but for” test. It is well-settled that the leading case on causation was set out by the Divisional Court in Sabadash v. State Farm 2019 ONSC 1121 (Ont. Div. Ct.) (“Sabadash”), which is binding on this Tribunal. As per Sabadash, I must determine whether the applicant would not have suffered physical and psychological impairments ”but for” the accident. The accident is not required to have been the sole cause or have been sufficient in itself to have caused the applicant’s impairments. Rather, the accident need only to have been a necessary cause.

29As I have determined above, the applicant has not established he suffered any pre-existing physical impairment or any psychological impairment as a result of the index accident. The applicant’s subjective complaints following the subsequent accident on July 5, 2019 are insufficient to remove him from the MIG for the subject accident on May 25, 2019. In other words, I am not satisfied the applicant’s impairments (if any) would have occurred but for the subject accident.

30While the applicant may have been removed from the boundaries of the MIG following the subsequent accident, in my mind this bears no relevance to the impairments allegedly sustained in the initial subject accident. To conflate the impairments suffered in the first accident to the second would be contrary to the evidence tendered and would compromise the fairness of this proceeding.

The applicant is not entitled to the OCF-18s in dispute

31Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

The applicant is not entitled to interest

32Given there are no benefits owed, nor payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

26The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the disputed OCF-18s, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;

iii. The applicant not entitled to interest pursuant to s. 51 of the Schedule.

Released: June 12, 2023

__________________________

Ian Maedel

Vice-Chair