Citation: Sarpong v. Intact Insurance Company, 2023 ONLAT 21-002655/AABS

Licence Appeal Tribunal File Number: 21-002655/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:

Benjamin Sarpong

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Carla Barcelo, Paralegal

For the Respondent:

Khelan Soogrim, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Benjamin Sarpong, the applicant, was involved in an automobile accident on December 25, 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 Intact Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At issue is whether the applicant is limited to $3,500 in medical and rehabilitation benefits because he sustained a predominantly minor injury, and whether he is entitled to an income replacement benefit (“IRB”), benefits for chiropractic and psychological treatment, the cost of a psychological assessment, $325 for Harmonized Sales Tax on an income replacement report, and interest.

ISSUES

3The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and subject to the $3,500 limit in s. 18 of the Schedule and in accordance with the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to an IRB of $259.18 per week from April 29, 2019 to December 25, 2020?

3. Is the applicant entitled to the following services proposed by Mediwise Health Care Centre:

i. $111.82 ($1,225.80 less $1,113.98 approved) for chiropractic treatment submitted in a treatment plan/OCF-18 (“plan”) dated March 25, 2019;

ii. $3,805.76 for chiropractic treatment submitted in a plan dated April 15, 2019;

iii. $1,920.53 for a psychological assessment submitted in a plan dated May 14, 2019;

iv. $2,921.42 for chiropractic treatment submitted in a plan dated June 19, 2019;

v. $3,963.64 for psychological services submitted in a plan dated June 29, 2019;

vi. $2,555.66 for chiropractic treatment submitted in a plan dated August 27, 2019; and

vii. $3,558.54 for psychological services submitted in a plan dated September 23, 2019?

4. Is the applicant entitled to $2,825.00 for preparation of an income replacement report?

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

RESULT

4The applicant has not established that he sustained a non-minor injury. He has therefore not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

5The applicant is entitled to an IRB from April 29 to July 5, 2019 with interest.

6The applicant is not entitled to the services in dispute or HST on the income replacement report.

THE APPLICANT HAS NOT ESTABLISHED THAT HE SUSTAINED A NON-MINOR INJURY

7Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500 in medical and rehabilitation benefits. A minor injury is defined at s. 3 of the Schedule 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. Minor injuries are subject to the treatment framework in the MIG.

8The onus is on the applicant to prove that he sustained a non-minor injury: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

9Dr. K. Wudom, the applicant’s family doctor, diagnosed him with strains of the neck, back, and left thigh. Strains are minor injuries as defined in s. 3 of the Schedule. The applicant alleges that he sustained two non-minor injuries: a psychological impairment and chronic pain.

Psychological impairment

10The applicant has not established that he sustained a psychological impairment.

11The definition of minor injury in s. 3 of the Schedule does not include a psychological impairment, but it does include the psychological sequelae of a minor injury. This requires me to determine whether the applicant’s psychological symptoms are secondary to his physical injuries or a free-standing impairment.

12The applicant relies on two reports commissioned from psychologists: a screening report by Dr. H. Mrahar dated January 29, 2019, and an assessment report by Mr. B. Cook dated June 25, 2019. Both diagnosed him with adjustment disorder with mixed anxiety and depressed mood. Under the International Classification of Diseases, 10^th revision, which they cited, adjustment disorder is defined as “subjective distress and emotional disturbance, usually interfering with social functioning and performance, arising in the period of adaptation to a significant life change or a stressful life event.”

13The respondent argues that the applicant’s psychological symptoms are sequelae of his physical injuries. It relies on an independent assessment report dated June 25, 2019 by Dr. S. Mor, a psychologist. Dr. Mor concluded that the applicant’s psychological symptoms were not severe enough to warrant a formal diagnosis. The respondent also observes that the applicant told Dr. Wudom and Dr. Mor that he did not need psychological treatment.

14I find that the applicant’s psychological symptoms were sequelae of his physical injuries and not sufficiently severe to constitute a psychological impairment:

i. Mr. Cook opined that the applicant’s symptoms were mild, and Dr. Mor opined that they were not severe enough to warrant a diagnosis. He never reported any mood- or anxiety-related issues to Dr. Wudom.

ii. I place little weight on Dr. Mrahar’s provisional diagnosis of adjustment disorder. First, her report is brief and intended only to recommend whether a full psychological assessment should be done. Second, her opinion was based solely on the applicant’s self-reported symptoms in a screening interview conducted one month after the accident.

iii. The applicant did not consider his psychological issues to require treatment. He told Dr. Wudom and Dr. Mor that his physiotherapy/chiropractic clinic referred him to a psychologist on its own initiative and that he did not think he needed psychological treatment.

iv. There is little evidence that the applicant’s psychological symptoms interfered with his social functioning and performance. There are only a few passing mentions of such issues in the psychologists’ reports:

i. Dr. Mrahar noted that the applicant withdraws from his friends to avoid interactions that might upset him;

ii. Mr. Cook noted that the applicant is less social but did not provide further explanation; and

iii. Dr. Mor noted that the applicant does not go out with his friends because he avoids driving where possible.

15The applicant argues that because he is not a psychologist, he is not qualified to assess whether he needs psychological treatment. I do not accept that submission. The applicant is the only person with direct knowledge of his psychological symptoms and their severity. He gave forthright accounts of his mental health to Mr. Cook and Dr. Mor. He acknowledged having experienced mood- and anxiety-related issues, but described them in mild terms. There is no evidence that he lacked insight into his condition.

16The applicant argues that even though he told Dr. Wudom he did not need psychological treatment, Dr. Wudom prescribed Trazodone, an anti-depressant. The respondent argues that Dr. Wudom prescribed Trazodone for insomnia. The parties did not file evidence regarding the clinical uses of Trazodone. The only evidence before me on this point is Dr. Wudom’s clinical note. I agree with the respondent that it indicates Dr. Wudom prescribed Trazodone for insomnia. The purpose of the appointment was to treat a nine-day stretch of insomnia. Dr. Wudom had prescribed a different drug at a previous appointment, but the applicant reported that it had only helped for two days. Dr. Wudom prescribed a trial of Trazodone to be taken at bedtime. He did not diagnose the applicant with any psychological conditions, and nothing in the clinical note suggests that he disbelieved the applicant’s statement that psychological treatment was unnecessary.

Chronic pain

17The applicant has not established that he suffers from chronic pain that meets the test for a non-minor injury.

18The applicant must prove that he suffers from chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28.

19The applicant does not allege that he suffers from chronic pain syndrome. He alleges that he suffers from chronic pain, but does not clearly identify what continuing functional impairment or disability has resulted from this pain. The assessment reports note that he did not work for four months after the accident until he returned part-time on modified duties in May 2019, and that he relied on others to perform household chores such as vacuuming and shoveling snow. These reports indicate that he was impaired to some extent as of July 2019, seven months after the accident. The applicant has referred me to no evidence showing whether, for how long, and to what extent these impairments continued over the years following. Dr. Wudom’s clinical notes indicate that the applicant reported headaches and neck and back pain during this period. However, ongoing pain does not constitute a non-minor injury on its own. The record does not show how this pain affected the applicant’s ability to work, perform household chores, or engage in other activities.

THE APPLICANT IS PARTLY ENTITLED TO AN IRB

20I find that the applicant is entitled to an IRB from April 29 to July 5, 2019.

21The applicant was self-employed as the owner and operator of a construction company at the time of the accident. Section 5(1)(2)(ii) of the Schedule provides that he is entitled to an IRB if he suffered, as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his self-employment. Section 6(1) provides that he is entitled to an IRB for the period during which he suffered such a substantial inability up to 104 weeks after the accident.

22The applicant requested an IRB in a Disability Certificate (OCF-3) submitted on January 12, 2019. He commissioned an income replacement report from an expert accountant that calculated the amount of the IRB as $259.18 per week.

23In a letter dated August 12, 2019, the respondent agreed to pay an IRB in the amount requested up to April 29, 2019. Because the applicant had returned to work in May 2019, it requested that he provide updated financial documents to calculate the amount of the IRB going forward. It appears that the applicant did not provide further documents and the respondent did not pay any more for the IRB.

24The applicant submits that he is entitled to an IRB of $259.18 per week from April 29, 2019 to December 25, 2020, the 104-week mark. He argues that the respondent erred in terminating the benefit because he did not provide further documents. In his submission, the income replacement report provided enough information to calculate the amount of the IRB, and the respondent could only terminate the benefit if it considered him substantially able to perform the essential tasks of his self-employment.

25The respondent relies on an independent assessment conducted by Dr. S. Ming-Wai Tu, a physician, and a functional abilities evaluation conducted by Mr. D. Polygenis, a physiotherapist. In its submission, these assessments show that the applicant was substantially able to perform the essential tasks of his self-employment. It also argues that even if he was not substantially able to perform those tasks, he did not provide the documents necessary to calculate the amount of the IRB after April 29, 2019.

The applicant is entitled to an IRB from April 29 to July 5, 2019

26The applicant’s construction business was physically demanding. He reported to Mr. Polygenis and Dr. Ming-Wai Tu that his job included tasks such as framing walls, installing flooring, and lifting bags of cement, lumber, and other heavy materials. When he returned to work in May 2019, he worked approximately 16-20 hours per week on light duties. He reported to Dr. Ming-Wai Tu that he did not do any heavy lifting or work that would require him to bend over, which would cause headaches and dizziness.

27I find that lifting heavy loads and bending over were essential tasks of the applicant’s self-employment, and that he was substantially unable to perform these tasks from April 29 to July 5, 2019, the date of Dr. Ming-Wai Tu’s assessment.

28Dr. Ming-Wai Tu opined that the applicant was able to perform all the essential and non-essential tasks of his self-employment, and that he had already resumed those tasks. I do not understand how she reached this conclusion given that she noted he was working part-time on light duties. I therefore do not accept her opinion.

29The applicant is entitled to an IRB of $259.18 from April 29 to July 5, 2019, less 70% of any income from self-employment during that period in accordance with s. 7(3)(b) of the Schedule. I do not accept the respondent’s submission that the applicant has not proven the amount of the IRB after April 29, 2019. Sections 4(3) and 7(2)(1)(i) provide that the amount of the IRB is based on the applicant’s pre-accident income from self-employment. This amount was calculated in the income replacement report, which the respondent accepted. The applicant was not required to re-establish the amount of the IRB once he returned to work. His post-accident income is deducted from his IRB of $259.18 rather than being used to recalculate the amount of the IRB.

The applicant is not entitled to an IRB after July 5, 2019

30The applicant has not established that he continued to be substantially unable to perform the essential tasks of his self-employment after July 5, 2019. Dr. Ming-Wai Tu’s assessment was a snapshot of his level of function two months after returning to work part-time on modified duties. It was not yet clear whether his ability to perform his pre-accident tasks would improve, decline, or stay the same. The applicant provided no evidence regarding his ability to work after July 2019.

31The applicant argues that the respondent erred in refusing to pay an IRB after April 29, 2019. However, the onus is on him to prove that he is entitled to an IRB. He cannot meet that onus by arguing that the respondent refused to pay further benefits for the wrong reason.

32The applicant relies on Mr. Polygenis’s functional abilities assessment, which rated his job at the “Heavy Physical Demand Characteristic” under the Dictionary of Occupational Titles and his demonstrated functional ability at the “Medium Physical Demand Characteristic.” The applicant argues that this proves he cannot perform the essential tasks of his self-employment. I do not accept that submission. Mr. Polygenis concluded that the applicant’s results were not a valid indication of his functional abilities because he failed 16 of 29 tests measuring consistency of effort. The functional abilities assessment therefore does not assist him.

THE APPLICANT IS NOT ENTITLED TO THE MEDICAL BENEFITS IN DISPUTE

33The applicant has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits, including the cost of assessments in connection with those benefits. As he has exhausted that limit, he is not entitled to the proposed chiropractic and psychological services or the cost of the psychological assessment.

THE APPLICANT IS NOT ENTITLED TO HST ON THE INCOME REPLACEMENT REPORT

34The $3,500 limit on medical and rehabilitation benefits does not apply to the income replacement report. Section 7(4)(3) of the Schedule provides that the respondent shall pay the cost of the report if it is reasonable and necessary for the purpose of determining the applicant’s entitlement to an IRB. Section 7(5) provides that the respondent is not required to pay more than $2,500 for the report.

35The cost of the report was $2,500 plus $325 in HST, for a total of $2,825. The respondent paid $2,500 for the report, but argues that it is not required to pay the HST. The applicant’s submissions do not address this issue.

36I find that the applicant is not entitled to the $325 in HST.

37The Schedule sets different funding limits for income replacement reports and other types of reports:

i. Section 7(5) sets a $2,500 limit for income replacement reports. It does not state that HST is payable to the extent that it exceeds the $2,500 limit.

ii. Section 25(5)(a) sets a $2,000 funding limit for reports other than income replacement reports. In its original form, it did not state that HST was payable beyond the $2,000 limit. However, it was amended to so provide for accidents on or after June 3, 2019: O Reg 123/19, s. 4.

38The Lieutenant Governor in Council amended s. 25(5)(a) to specify that HST is payable beyond the funding limit for reports other than income replacement reports. She could have made the same amendment to s. 7(5), but she did not. This signals a clear legislative intent not to make HST payable beyond the funding limit for income replacement reports.

39As the Schedule does not require the respondent to pay HST beyond the $2,500 funding limit, the applicant is not entitled to the $325 in dispute.

INTEREST

40The applicant is entitled to interest on the overdue IRB payments in accordance with s. 51 of the Schedule.

ORDER

41The applicant has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

42The applicant is entitled to an IRB of $259.18 from April 29 to July 5, 2019, less 70% of any income from self-employment during that period.

43The applicant is not entitled to an IRB after July 5, 2019.

44The applicant is not entitled to the medical benefits in dispute.

45The applicant is not entitled to $325 for HST on the income replacement report.