Agnieszka Wrezel v. Belair Insurance Company Inc., 2023 CanLII 87409

Citation: Wrezel v. Belair Insurance Company Inc., 2023 ONLAT 21-004405/AABS

Licence Appeal Tribunal File Number: 21-004405/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:

Agnieszka Wrezel

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Dino Ranchan Pius, Counsel

For the Respondent: Marina Linkletter, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Agnieszka Wrezel, the applicant, was involved in an automobile accident on April 28, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Belair Insurance Company Inc., 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 s. 3 of the Schedule and therefore already consumed the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to the assessments proposed by All Health Medical Centre, as follows:

(a) $2,520.00 for an orthopaedic assessment submitted in a treatment plan (“OCF-18”) on March 29, 2019?

(b) $2,260.00 for a psychological assessment submitted in an OCF-18 on April 26, 2019?

(c) $2,260.00 for a chronic pain assessment, submitted in an OCF-18 on August 6, 2019?

(d) $2,013.88 for assistive devices, submitted in an OCF-18 on June 10, 2020?

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

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

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG.

ii. The applicant is not entitled to the treatment plans in dispute, or interest.

iii. The respondent is not liable to pay an award under Regulation 664.

PROCEDURAL ISSUES

4The respondent raises an issue with respect to the applicant’s affidavit, which was included in her submissions. It requests that the affidavit be excluded in its entirety. Although the Case Conference Report and Order dated June 16, 2022 (“CCRO”) permitted the applicant to submit an affidavit for these proceedings, the respondent argues that the affidavit contains irrelevant information, a self-serving narrative and opinion evidence on medical issues that she is not qualified to provide. The applicant did not provide any submissions on the issue of the admissibility of the affidavit.

5While I agree with the respondent that portions of the applicant’s affidavit contain irrelevant information or opinion evidence, I do not find that the affidavit should be excluded in its entirety. Rather, when reviewing the affidavit, I have given no weight to the portions of the affidavit that express opinions or make submissions or arguments with respect to irrelevant information. Rather, I have considered only the relevant factual information contained therein.

ANALYSIS

Minor Injury Guideline

6Section 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 minor injuries. 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.”

7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 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 MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant. The applicant submits that she should be removed from the MIG on the basis of pre-existing impairments, psychological impairments, and chronic pain.

The applicant has not established a pre-existing condition that would prevent maximal recovery under the MIG

8The applicant submits that she suffered from pre-existing conditions, which were aggravated by the subject accident. These include a prior motor vehicle accident 13 years ago, and pre-accident right-sided weakness and right-shoulder pain. She argues that the accident aggravated this right-sided weakness and pain, which has led to the development of chronic pain in her right shoulder.

9The respondent argues that the applicant’s pre-existing condition would not prevent maximal recovery under the MIG. The right-sided weakness and pain the applicant references relate to a suspected stroke (cerebrovascular accident), in 2015 which lasted 3-4 minutes and then resolved. It was determined by her doctors that the applicant suffered from hypercoagulable prothrombin gene mutation, which is an inherited condition that increases the risk of blood clots in the veins and lungs. However, the respondent submits that the clinical notes and records (“CNRs”) of the applicant’s family physician indicate that the applicant was asymptomatic after the incident, and that the applicant has led no evidence that this condition would prevent her from achieving maximal recovery under the MIG.

10I agree with the respondent. I find that although the applicant has led evidence that she had suffered from the cerebrovascular incident and gene mutation prior to the subject accident, she has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that these pre-existing conditions would prevent her ability to achieve maximum medical recovery if she were kept in the MIG.

11The respondent’s insurer’s examination (“IE”) assessors Dr. Sandhu and Dr. Mula both considered the applicant’s genetic/cardiac medical condition and opined that it would not have any effect on her recovery within the MIG. The applicant has not directed me to any opinion from her treating physician identifying this pre-existing impairment as a barrier to recovery under the MIG. Moreover, I note that in the applicant’s affidavit, she specifically noted that she had fully recovered from her prior accident and the cerebral vascular accident. As such, she stated that she did not have any psychological or physical impairments leading up to the subject accident.

The applicant has not established psychological impairments warranting removal from the MIG

12The applicant argues that she has sustained an accident-related psychological impairment and as such, should be removed from the MIG. To establish her claim, she relies on a CNR entry from her family physician Dr. Saad. In the February 12, 2019 entry, the applicant reported that she had recently met with an IE assessor, which caused her to relive the trauma of the accident, and reported PTSD symptoms to Dr. Saad. The applicant submits that at this visit, Dr. Saad prescribed medication for her panic symptoms, and recommended counselling and therapy, and argues that as such, she has sustained a psychological impairment.

13I agree with the respondent that this isolated CNR entry is not sufficient evidence of a psychological impairment warranting removal from the MIG. In the February 12, 2019 CNR entry, while the applicant did report PTSD symptoms for the first time, no diagnosis was indicated by Dr. Saad. Rather, the doctor suggested that counselling would be helpful, prescribed a short-term session of lorazepam and suggested that they check in in 1-2 months for progress.

14The CNRs of Dr. Saad do not indicate any further references to psychological symptoms. It does not appear that the applicant requested a refill to the trial run of medication, or followed up on the referral for counselling. Although the February 12, 2019 entry stated that there would be a check up in 1-2 months, a subsequent entry on March 29, 2019 had no discussion of psychological symptoms. Nor does the applicant direct me to any other CNR entry post 2019 where such symptoms were again reported.

15Further, the respondent’s psychological IE assessors Dr. Mandel and Dr. Saghatoleslami both found that the applicant did not meet the DSM-V diagnostic criteria for any mental health illness and that she did not suffer from a psychological impairment. The applicant has not provided sufficient evidence to refute these findings.

The applicant has not established chronic pain warranting removal from the MIG

16The applicant submits that she has sustained accident-related chronic pain in her right shoulder and the right side of her neck. She argues that she has had two cortisone injections in her right shoulder which have not alleviated the pain, and that she has consistently reported pain complaints to her treating practitioners. The applicant submits that she continues to experience functional impairments in the years post-accident, and that she was diagnosed with chronic pain in her OCF-3 dated March 27, 2019 and by her new family physician Dr. Sfranciog on April 22, 2022. Finally, the applicant contends that she meets most of the criteria to assess chronic pain, stipulated by the American Medical Association (AMA) Guides.

17I find that the applicant has not led sufficient evidence to establish that she has developed accident-related chronic pain warranting removal from the MIG.

18Although the CNRs of Dr. Saad indicate reports of right shoulder pain in the year post-accident, I do not find that such consistent reports continued post-2019. The applicant did attend at Dr. Saad’s office in 2018 and 2019 complaining of right shoulder pain. X-rays, ultrasounds and MRIs of the shoulder and neck were conducted and did not indicate any serious impairments. Dr. Saad provided two cortisone injections in her right shoulder (on July 13, 2018 and August 8, 2019) to address pain complaints. But after this August 8, 2019 injection entry, the applicant does not direct me to any other CNR entry with respect to accident-related pain, until almost three years later in April 2022.

19At this point, the applicant had a new family physician Dr. Sfranciog, to whom she reported her right shoulder pain. In this April 22, 2022 entry, Dr. Sfranciog noted the applicant’s reports of “chronic pain”. However, the applicant does not direct me to any other CNR entry from Dr. Sfranciog, where such chronic pain complaints are addressed.

20Further, although the applicant submits that she would meet “most” of the six criteria to assess chronic pain stipulated by the AMA Guides, I do not find that this is supported by the medical record. In terms of overuse of or dependence on prescription medication, the applicant submits that she has “tried” prescription medication and cortisone injections. I do not find that such limited use is sufficient to meet the criteria of overuse or dependence. Moreover, the applicant has consistently reported to various IE assessors that she does not use any prescription medication, or would simply use Tylenol or Advil twice a week.

21With respect to the other AMA Guides criteria, the applicant has not established that she is excessively dependent on health care providers or her spouse, that she suffers from secondary physical deconditioning due to pain or that she has developed a psychological impairment as a result of the accident. Although in her submissions the applicant states that her chronic pain severely affects her “social life” no particular details or evidence are provided in support of this claim. The applicant has not provided evidence that she has withdrawn from social milieu or work. The applicant returned to work as an early childhood educator a week post-accident, with the only restriction being no heavy lifting. In her affidavit she confirmed that she stopped working in December 2020 due to her pregnancy and returned to work post-maternity leave on November 21, 2022.

22I further find that the applicant has not established she suffered from functional restrictions as a result of her ongoing pain complaints. The applicant returned to work almost immediately post-accident, with the only work modification being no heavy lifting. When she returned to work post-maternity leave, the applicant did not identify any ongoing workplace restrictions. The only other self-reports of functional limitations are that her husband now helps her with “heavier” housework such as yard work or vacuuming, and that it can be “difficult” to hold her son or do exercises. I do not find that these limited self-reports of functional restrictions are sufficient to meet the criteria of being unable to pursue work, family or recreational needs.

23As such, I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.

24The applicant sustained a minor injury as defined in the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. The parties have confirmed that the $3,500.00 MIG limit has been exhausted. As such, an analysis of whether the OCF-18s in dispute are reasonable and necessary is unwarranted.

25However, the applicant submits an alternative argument with respect to one of the OCF-18s, dated May 15, 2019, that the respondent’s denial failed to comply with s. 38(8) of the Schedule.

OCF-18 dated May 15, 2019 for a chronic pain assessment

26The applicant submits that the respondent failed to comply with s. 38(8) of the Schedule, as its denial letter was not provided within 10 business days of receipt of the OCF-18. As such, the applicant argues that pursuant to s. 38(11), the respondent is prohibited from taking the position that the MIG applies and must pay for the goods and services described in the treatment plan.

27The respondent does not dispute that its response letter was sent beyond the 10 business days. However, it argues that although pursuant to s. 38(11), it cannot argue that the MIG applies to this treatment plan, the applicant must still establish that the proposed treatment is reasonable and necessary. Further, the respondent argues that the applicant has not provided any evidence that the treatment plan was incurred.

28I find that the applicant has not established that the OCF-18 for a chronic pain assessment is payable.

29The applicant has not provided any evidence that the OCF-18 has been incurred. Although the respondent did not provide its response letter within the required 10 business days, the applicant does not dispute that she received the letter on October 3, 2019. Section 38(11)2 specifies that, if the notice requirements in s. 38(8) are breached, the insurer shall pay for the goods and services described in the treatment plan “that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8)”. This means that an insurer is able to cure the deficient notice, but must pay for goods and services that relate to the period in between the deficient and cured notice.

30As the respondent sent the proper notice on October 3, 2019, any non-compliance was subsequently cured. However, I agree with the respondent that the applicant has not led any evidence as to whether the OCF-18 was incurred during this period of non-compliance.

31I am bound by the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 [Catic]. In that case, the insurer provided a denial letter outside of the 10-day period under s. 38(8) of the Schedule, and the insured did not incur any expenses up to the date the denial letter was delivered. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The applicant has failed to provide any evidence that the OCF-18 was incurred before October 3, 2019.

Interest

32Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

33As no benefits are overdue, no interest is payable under s. 51.

Award

34Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

35In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.

Costs

36In its submissions, the respondent has raised the issue of costs. It argues that an award of costs should be made against the applicant due to the fact that the applicant failed to comply with the CCRO and did not provide submissions that were “indexed, bookmarked/tabbed and consecutively page numbered.” It submits that the failure to provide such bookmarks or page numbers is unreasonable conduct warranting costs.

37I agree with the applicant that the respondent has failed to establish that the applicant’s behaviour met the high threshold of unreasonable, frivolous, vexatious or bad faith conduct.

38The applicant submits that she indexed and tabbed her submissions and hyperlinked her referenced cases within her footnotes. However, the applicant concedes that due to inadvertence, she did not make specific reference to her evidence by page numbers. She cites Tribunal caselaw, where even in situations of such error or mistake, the Tribunal has declined to award costs. The respondent has not provided any caselaw in support its claim that costs are warranted. I am persuaded by the applicant’s cited caselaw and do not find that the respondent has established that costs are warranted.

ORDER

39For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans; and

(iii) The applicant is not entitled to interest or an award.

40The application is dismissed.