Citation: Crnogorac v. Wawanesa Insurance, 2023 ONLAT 21-007328/AABS

Licence Appeal Tribunal File Number: 21-007328/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:

Dominik Crnogorac

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Chaitanaya Ghai, Counsel

For the Respondent:

Nicholas Wine, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Dominik Crnogorac (“D.C.”), the applicant, was involved in an automobile accident on September 13, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). D.C. was denied benefits by the respondent, Wawanesa, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is D.C. entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 13, 2020 to September 12, 2022?

ii. Are D.C.’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 limit in s. 18(1) of the Schedule?

iii. Is D.C. entitled to $4,441.97 for physiotherapy services from Alpha Physio Mississauga, recommended by Sumit Inani, physiotherapist, in a treatment plan (OCF-18) dated February 24, 2021, and denied on March 22, 2021?

iv. Is D.C. entitled to $3,853.80 for physiotherapy and chiropractic services, recommended by Total Wellness Clinic, in an OCF-18 submitted June 4, 2022, and denied June 7, 2022, reasonable and necessary?

v. Is D.C.entitled to $2,304.53 for a psychological assessment and counselling, recommended by Total Wellness Clinic, in an OCF-18 dated May 19, 2022, reasonable and necessary?

vi. Is Wawanesa liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to D.C.?

vii. Is D.C. entitled to interest on any overdue payment of benefits?

RESULT

3I find that D.C. is not entitled to a NEB for the period of October 13, 2020 to date and ongoing.

4I find that D.C. has not met his burden of proving that his accident-related impairments warrant removal from the MIG. Accordingly, it is not necessary for me to determine whether the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.

5D.C. is not entitled to an award or interest.

ANALYSIS

NEBs

6The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that they suffer from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

7Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

8It is well established that the test to establish entitlement to NEBs is set out the in the decision of Heath v. Economical Mutual Insurance Company (Heath) 2009 ONCA 391 wherein the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.

9Heath also outlines several principles for the determination of entitlement to NEBs which are as follows:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

iv. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

v. “Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.

10The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.

11D.C. submits that as a result of the accident, he suffered physical and psychological impairments that have prevented him from engaging in substantially all of his pre-accident activities. He relies on the following evidence:

i. OCF-3 dated January 25, 2021 – sprain and strain injuries, nervousness and irritability – duration noted as 5-8 weeks;

ii. OCF-3 dated April 8, 2022 – sprain and strain injuries, nervousness, irritability, phobias, other anxiety disorders, panic disorder, anxiety disorder, sleep terrors, and nightmares – duration 9-12 weeks;

iii. OCF-24 dated January 4, 2021; and

iv. Section 25 psychological report from Dr. Singh dated November 8, 2022.

12In the November 8, 2022 report, Dr. Singh noted that D.C. had a severe disability in his ability to carry out work-related activities and household chores. Dr. Singh noted D.C.’s reported psychological/emotional concerns―depression and anxiety, which Dr. Singh opined to be “likely” barriers to recovery and return to activities of normal living. Dr. Singh further opined that D.C.’s psychological impairments combined with his physical impairments have resulted in a substantial inability to perform the essential tasks of his employment.

13Wawanesa argues that Dr. Singh’s report fails to provide any comparative analysis of D.C.’s pre- and post-accident lifestyle history. Further, that D.C. has not adduced any evidence that supports that he suffered a complete inability to carry on a normal life.

14I agree. My finding is based on the following:

i. The two OCF-3s indicate a disability duration of a total of 14-20 weeks of disability, clearly not indicative of a complete inability to carry on a normal life;

ii. Dr. Singh’s report does not consider whether D.C. meets the complete inability test, although her report mentions that he suffered a substantial inability to carry on a normal life. Further, Dr. Singh’s report was done more than two years post-accident, and cannot be considered a valid indication of D.C.’s immediate post-accident psychological well-being;

iii. D.C. works full-time in excavating and driving a forklift, and returned to playing hockey, as reported to Dr. Singh. Dr. Singh’s opinion that D.C. suffered a substantial inability to perform the essential tasks of his employment, is irrelevant, as there is no income replacement benefit in dispute; and

iv. D.C. has not directed me to any evidence or argument of a comparison of his pre- and post-activities of daily living and how his accident-related impairment had an impact on his post-accident function.

15For these reasons, I find that D.C. has not met the stringent NEB test and has therefore failed to demonstrate that he suffered a complete inability to carry on a normal life. Accordingly, he is not entitled to a NEB.

Did D.C. suffer predominantly minor injuries?

16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant.

17D.C. submits that he suffers from both physical and psychological injures as a result of the accident, which were noted in the January 2021 and April 2022 OCF-3s, above. He submits that he has ongoing pain as well as physical and psychological limitations. His position is that his reported symptoms and subsequent treatment demonstrate that his condition has not improved after the accident, and he requires further treatment beyond the MIG limits. In support of his claims, D.C. also relies on the November 8, 2022 psychological report from Dr. Singh.

18Wawanesa submits that D.C. sustained minor injuries that do not require treatment beyond the MIG. Its position is that D.C. has failed to prove that he suffered a physical or psychological injury or impairment that requires further treatment beyond the MIG. It alleges that D.C. has not produced any medical evidence supporting accident-related impairments in the first year and a half, post-accident. It also notes that there have been no clinical notes and records from Alpha Physiotherapy, where he attended in the first year to two years post-accident.

19Wawanesa further submits that the clinical notes and records from Total Wellness Clinic from May 2022 onward, do not contain any corroborative evidence that supports that D.C. suffered anything more than predominantly minor injuries, nor do the records point to any persuasive evidence linking any reported pain to the subject accident.

20I agree with Wawanesa. D.C. has not provided compelling evidence to justify removal from the MIG. First, although D.C. relies on a referral note from Dr. McIntyre, for physiotherapy, there is no objective evidence to support that he has any accident-related impairment that requires further treatment outside of the MIG. Second, the OCF-3s note injuries, such as sprain and strain injuries, that are captured under the definition of minor injuries. Third, while D.C.’s main argument is the report from Dr. Singh, I place little weight on this report, as there is a contradiction between D.C.’s self-reporting to Dr. Singh, and his actual function. For example, he has continued to work in excavation and driving a forklift is playing a physically demanding sport like hockey. In my view, this does not support that the applicant has any accident-related physical impairment which is interfering with his ability to function. Lastly, I note the medical record from the family physician is silent on any psychological complaints, nor has D.C. adduced evidence that he has sought any psychological treatment in the two-year period prior to Dr. Singh’s report.

21I find the inconsistencies in the evidence weakens D.C.’s position that he requires treatment beyond the MIG limit. Notably, in reply, D.C. argues that Wawanesa did not request updated medical records at the time the OCF-18s were denied. Specifically, that it did not make any requests pursuant to s. 33 of the Schedule. As the burden is on an applicant to meet their onus in demonstrating that any claimed benefits are reasonable and necessary, it is incumbent upon an applicant to produce any and all records and documents that will assist in meeting their onus. This is especially so where an applicant is represented by counsel who is familiar with the process of pursuing a claim for accident benefits.

22The onus is on the applicant to prove that his impairments are outside of the MIG. A failure to ensure any and all necessary medical documentation is provided, whether requested by the insurer or not, will be detrimental to an insured person in pursuit of a claim for benefits. Requests made under section 33 are a provision to ensure an insurer is provided with the necessary information it requires to make a determination on entitlement to benefits. It is not mandatory that an insurer must make such a request when a claim is initiated by an insured person. The moving party shall ensure that any other party is provided with any and all necessary documentation reasonably required in order for a determination regarding any eligibility to benefits to be made.

23I am not persuaded that D.C.’s injuries require removal from and treatment beyond the MIG. Accordingly, I see no reason to interfere with Wawanesa’s determination that D.C. suffered predominantly minor injuries that are treatable within the MIG.

Are the OCF-18s reasonable and necessary?

24It is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

Award

25D.C. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

26As no benefits are owing, Intact cannot have been found to have unreasonably withheld or delayed payment of benefits. No award is payable.

ORDER

27D.C. is not entitled to NEBs from October 13, 2020 to date and ongoing as he failed to prove on a balance of probabilities that he suffered from a complete inability to carry on a normal life as a result of the accident for this period.

28D.C. has not met his onus of proving that his accident-related impairments warrant removal from the MIG.

29D.C. is not entitled to an award or interest.