Harold Thelemaque v. Co-operators General Insurance Company, 2023 CanLII 74628

Citation: Thelemaque v. Co-operators General Insurance Company, 2023 ONLAT 22-001620/AABS

Licence Appeal Tribunal File Number: 22-001620/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:

Harold Thelemaque

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Taivi Lobu

APPEARANCES:

For the Applicant: Madiha Qurashi, Counsel

For the Respondent: Emily Schatzker, Counsel Alla Kazavcinscaia, Law Student

Court Reporter: Rachel Thompson

Heard by Videoconference: May 3 & 4, 2023

OVERVIEW

1Harold Thelemaque, the applicant, was involved in an automobile accident on February 26, 2020, 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 Co-operators General Insurance Company, the respondent, 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. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to the treatment plans set out below?

a) $3,148.70 for physiotherapy services, proposed by 101 Physio in a plan submitted April 17, 2020, denied on April 27, 2020?

b) $2,197.91 for physiotherapy services, proposed by 101 Physio in a plan submitted October 7, 2020, denied on October 19, 2020?

c) $2,097.72 for physiotherapy services, proposed by 101 Physio in a plan submitted March 11, 2021, denied on March 25, 2021?

d) $539 for other goods and services, proposed by 101 Assessments in a plan submitted, December 23, 2021, denied on January 6, 2022?

e) $2,460 for psychological assessment, proposed by 101 Assessments in a plan submitted, April 16, 2020, denied on April 27, 2020?

f) $2,460 for chronic pain assessment, proposed by 101 Assessments in a plan submitted, June 7, 2021, denied on June 18, 2021?

g) $2,210 for psychological services, proposed by 101 Assessments in a plan submitted, January 25, 2022, denied on February 7, 2022?

iii. Is the respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

v. Is the respondent entitled to costs?

3The applicant had claimed a non-earner benefit of $185.00 per week from March 25, 2020, but this issue was withdrawn during the hearing.

RESULT

4The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline.

5As the limits of the Minor Injury Guideline have been exhausted, there is no entitlement to the treatment plans at issue.

6No award or interest is payable.

7The respondent is not entitled to costs.

ANALYSIS

Background

8The applicant was rear-ended in a motor vehicle accident on February 26, 2020.

9A Disability Certificate (OCF-3) completed by chiropractor Dr. Bill Nikols on April 8, 2020 reported the applicant’s injuries as sprain and strain injuries to the back, neck, shoulder, sternum and ribs as well as a headache, a sleep disorder and blurred vision.

10The applicant was off work for one and a half weeks after the accident. He then returned to his work as a mechanic until he was laid off close to one year and ten months after the accident, on December 15, 2021. The applicant subsequently found other work and was employed at the time of the hearing.

Minor Injury Guideline

11Section 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. 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.”

12Both parties agreed that the applicant has exhausted the limits payable for medical and rehabilitation benefits under the Minor Injury Guideline.

13While the Disability Certificate completed by Dr. Nikols identified blurred vision as a concern, no medical evidence was advanced with respect to such an injury and there was no submission at the hearing about visual impairments.

14Individuals may be removed from the Minor Injury Guideline if they can establish that their accident-related injuries fall outside of the Minor Injury Guideline or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the Minor Injury Guideline. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the Minor Injury Guideline. In all cases, the burden of proof lies with the applicant

15The applicant argues that he is not subject to the $3,500.00 Minor Injury Guideline limit on benefits on three grounds:

1. he had a pre-existing medical issue which was exacerbated by the accident
2. he suffers from accident-related psychological impairment
3. he suffers chronic pain to his neck and back

16The respondent argues that the Minor Injury Guideline continues to apply to the applicant and that the evidence does not establish that it does not.

17The burden of proof lies with the applicant to prove that the nature and scope of his injuries warrant removal from and treatment above the Minor Injury Guideline.

Pre-Existing Condition

18The applicant submitted that he had a pre-existing condition which should take him out of the Minor Injury Guideline. The respondent argued that there was no reliable evidence upon which to make such a finding.

19I agree with the respondent. Section 18(2) of the Schedule requires compelling evidence of a pre-existing condition documented by a health practitioner before the accident, and which prevents the achievement of maximal recovery under the Guideline. I find that the applicant has not met this test.

20The applicant sustained injuries in a 2015 motor vehicle accident. He testified that he had improved 60 to 70 percent prior to the 2020 accident. The applicant filed clinical notes and records from New Age Recovery Rehabilitation Services, pertaining to his 2015 accident. However, the records did not address the applicant’s condition beyond 2016. I was not directed to specific evidence in the applicant’s health care records from his family doctor or other treatment records in the years immediately prior to the 2020 accident that could provide compelling evidence of a pre-existing condition. The onus is on the applicant to show this, and he has not done so.

21A psychologist who carried out an assessment on behalf of the applicant in December 2021, Dr. Papazoglou, documented in his report that the applicant did not have physical health problems prior to the accident. As well, in a report from an insurer’s examination, physiatrist Dr. Zabieliauskas stated that the applicant did not suffer from a prior medical condition which was exacerbated by the 2020 motor vehicle accident.

22Even if there were compelling evidence of a pre-existing condition that met the requirements of section 18(2), the applicant has not demonstrated that such a condition has exacerbated his 2020 injuries to the point of preventing maximal recovery under the Minor Injury Guideline, which is the requirement for removal under this ground.

23For example, the clinical notes and records from the applicant’s family physician do not reflect accident-related issues since September 2020 when the applicant was seen for headaches which he said had increased since the accident. A CT scan was ordered and the result was normal. While the family physician’s notes show that the applicant was advised to follow-up if there was no improvement, there was no record of follow-up with the family physician on accident-related complaints since September 2020.

24Given the evidence before me, I find that the applicant has not provided compelling evidence of a pre-existing condition preventing maximal recovery under the Minor Injury Guideline as required by section 18(2) of the Schedule.

Psychological Impairment

25The applicant testified that since the 2020 accident, he has been living with depression and anxiety, has a lack of focus and has problems driving. The applicant submitted that his psychological impairment should remove him from the Minor Injury Guideline and relies on the assessment of Dr. Papazoglou. The respondent relies on the assessment of Dr. Hines and takes the position that the applicant has not demonstrated psychological impairment. I prefer the respondent’s evidence on this point.

26In his psychological assessment, Dr. Papazoglou, found that the applicant had an adjustment disorder with mixed anxiety and depressed mood and specific (isolated) phobia (driving/passenger). The applicant’s assessment was based on a telephone interview and the results of psychometric tests. Dr. Papazoglou’s report expressly stated that his assessment was conducted with a French language interpreter “because the patient is not fluent in English.” Identifying information was not provided for the interpreter. While there were a number of assessments and records before the Tribunal pertaining to the applicant’s accident claims in 2015 and 2020 as well as other information pertaining to his personal health care and his work history, other than Dr. Papazoglou’s report, there is no suggestion of a restriction to the applicant’s English language fluency. The applicant testified in English at the hearing.

27Further, I find the informational foundation of Dr. Papazoglou’s report somewhat limited or unclear. His report stated that the applicant had a history of mental health problems. It appears he was relying upon a 2016 diagnosis of adjustment disorder with mixed anxiety and depressed mood made in a psychological assessment for the applicant’s previous motor vehicle accident. There is no suggestion of any other mental health history. When addressing the 2016 diagnosis Dr. Papazoglou stated that the applicant “was recommended to attend psychotherapy (10X) and to this end he was progressing well at that time.” When questioned at the hearing however, Dr. Papazoglou clarified that he was unaware whether the applicant had attended such sessions. There was no evidence at the hearing suggesting the applicant had attended for psychotherapy treatment at any point. While a production order had been made for the applicant to produce all clinical notes and records related to any psychotherapy or psychological counselling that stemmed from the diagnosis of an adjustment disorder in 2016 until present, nothing was produced.

28Dr. Hines, a psychiatrist who assessed the applicant in an insurer assessment of June 2022, determined that the applicant did not have any accident-related mental health impairments. He reported that the applicant denied having any past mental health impairments or issues. At the hearing, Dr. Hines testified that a previous adjustment disorder had not been mentioned to him; that the applicant told him he had no prior emotional difficulties; and he observed no suggestion of emotional or psychotic difficulties. Dr. Hines stated that while the applicant may have had emotional changes, there was no substantial evidence of an adjustment disorder or a specific phobia.

29I find Dr. Hines’ assessment to be founded on a more reliable information base. I am not persuaded that Dr. Papazoglou’s telephone assessment interview, which was carried out through an interpreter, could be expected to yield the same breadth and quality of relevant clinical information as an in-person assessment with direct communication. Dr. Papazoglou included psychometric testing, however as noted by Dr Hines, such test results need to be informed by a good clinical interview when arriving at a diagnosis, and that there is often a discrepancy between testing and examination. In addition, Dr. Papazoglou’s report did not specify how the psychometric tests were administered. The applicant testified that he had been sent a questionnaire and there was also a suggestion that the tests were administered over the phone by an assistant. In contrast, Dr. Hines’ report and assessment was based on an in-person meeting with the applicant with the benefit of visual observations and direct interaction without the use of an intermediary.

30I also find Dr. Hines’ assessment regarding vehicular phobia to be more reliable and consistent with other evidence before the Tribunal. Dr. Papazoglou diagnosed the applicant with specific phobia related to vehicular travel. His diagnosis appeared to be based on the applicant’s reports in the telephone interview and a Travel Anxiety Questionnaire, which was described as a self-report measure. Dr. Hines testified that when he met the applicant, he did not observe any features of a phobia related to vehicular travel and gave examples such as the applicant not having mentioned concerns about the drive to the appointment or of having to travel home by car. Dr. Hines also did not observe irritability, impatience, accident-avoidance comments or the like. He testified that a diagnosis of specific phobia is more than having some level of anxiety or nervousness, rather, a specific phobia entails clinically significant distress. He found this to be absent with the applicant. Dr. Hines’ determination that there was no substantial evidence of a specific phobia is in accord with the applicant’s evidence showing that for close to two years after the accident, he drove approximately one hour daily in his work commute and would also drive to sites in the course of his work.

31Lastly, the applicant did not report emotional or psychological issues to his family physician who had been treating him since 2018. It was submitted at the hearing that this reflected the applicant’s cultural conditioning and his preference to deal with issues on his own. While this may be the case, if the applicant’s approach is to deal with such issues on his own, it would be difficult to find treatment to be reasonable and necessary. In any event, the absence of such evidence is also consistent with Dr. Hines’ assessment. The evidence does not demonstrate on the balance of probabilities that the applicant has an accident-related psychological condition warranting treatment.

32For all of the above reasons, I find that the applicant has not met his burden of showing that the 2020 has caused psychological injury warranting removal from the Minor Injury Guideline.

Chronic Pain

33The applicant submits that he should be removed from the Minor Injury Guideline because of chronic pain. The respondent takes the position that the applicant has not demonstrated that he has accident-related chronic pain that would enable removal from the Minor Injury Guideline. I find that the applicant has not met his burden of showing that he has an accident-related chronic pain condition that would remove him from the Minor Injury Guideline.

34Ongoing pain does not automatically take a person out of the Minor Injury Guideline. It is well settled that to be removed from the Guideline based on chronic pain, there must be a diagnosis of chronic pain syndrome or the pain must be of a continued severity resulting in functional impairment.

35The applicant testified that he has had neck, back and shoulder pain since the accident as well as headaches. He testified about pain sometimes awakening him at night and reducing his abilities and productivity at work and in his daily life.

36As noted earlier, the applicant complained to his family physician of headaches in September 2020, a CT scan was ordered and he was asked to return if there was no improvement. I was not directed to any evidence of follow-up with his family doctor regarding these headaches. Other than the 2020 complaint about headaches, there was no reference in the family doctor’s records of accident-related pain after the first month of the accident, when the applicant was prescribed a muscle relaxant. His family physician’s chart did not reflect pain-related sleep issues or reliance on prescription medication to manage accident-related pain. The applicant testified that he had been prescribed Tylenol 3 for pain, but he only took out the prescription in 2022, to address pain from a subsequent injury, not for the 2020 accident injury.

37The applicant testified about pain restricting his daily living. For example, the applicant spoke to his accident-related pain affecting his productivity and function at work. However the evidence also showed that he was able to continue in the same job post accident until he was laid off in December 2021 – close to two years post-accident. In terms of other aspects of his daily life, the evidence showed that the applicant carried out significant activities of daily living – including self care, meal preparation and grocery shopping. He ran his household together with his children. He travelled to another continent to visit family. The applicant did not present persuasive evidence of pain-based functional impairment to justify removal from the Minor Injury Guideline.

38Moreover, the respondent presented evidence from Dr. Zabieliauskas, who conducted a physiatry assessment of the applicant in an insurer examination in February 2023. He testified that the applicant did not have indicia of a chronic pain patient – observing that the applicant did not present with manifestations of chronic pain issues, that there was no limitation in range of motion or observable restriction in movement, that there was an absence of tightness or swelling, and that there were no apparent issues with activity levels or substantial medication use. Dr. Zabieliauskas noted that the applicant was able to carry out activities of daily living, prepare lunch, drive to workplace appointments, and travel to see family. Dr. Zabieliauskas’ findings from his physical assessment are consistent with the other evidence before me.

39I find that the evidence does not show that the applicant has a chronic pain condition warranting removal from the Minor Injury Guideline.

Entitlement to Treatment Plans

40As the applicant is not entitled to accident benefits beyond the limit of the Minor Injury Guideline and as the parties agree that the limits of the Minor Injury Guideline have been exhausted, the applicant is not entitled to the treatment plans at issue.

Interest

41Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no overdue benefits, no interest is payable.

Award

42The applicant sought an award under section 10 of Reg. 664. Under section 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. As no benefits are payable, there is no basis for an award.

Costs

43At the hearing the respondent sought costs against the applicant because the applicant waited until the hearing to withdraw the claim for non-earner benefits.

44Pursuant to Rule 19.1 of the Common Rules of Practice and Procedure, October 2, 2017, costs may be ordered where a party has acted unreasonably, frivolously, vexatiously, or in bad faith.

45The applicant’s counsel acted with professionalism at the hearing. The withdrawal of the claim for non-earner benefits before the conclusion of the hearing, mitigated a further expenditure of resources. I am not prepared to make an order as to costs.

ORDER

46I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the Minor Injury Guideline.

ii. As the limits of the Minor Injury Guideline have been exhausted, there is no entitlement to the treatment plans at issue.

iii. No interest is payable.

iv. No award is payable.

v. The respondent is not entitled to costs.