Citation: Williams v. Travelers Canada, 2023 ONLAT 21-011446/AABS

Licence Appeal Tribunal File Number: 21-011446/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:

Gary Williams

Applicant

and

Travelers Canada

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Sara Baum, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Gary Williams, the applicant, was involved in an automobile accident on January 3, 2021 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, Travelers Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 and in the Minor Injury Guideline (“MIG”)?¹

ii. Is the applicant entitled to $1,802.02 ($2,002.02 less $200 approved) for physiotherapy, a therapy ball and lumbar back brace, proposed by Castle Oak Rehabilitation Centre in a treatment plan (OCF-18) dated April 6, 2021?

iii. Is the applicant entitled to $2,460.00 for an Orthopaedic Assessment, proposed by All Health Medical Centre in OCF-18 dated November 2, 2021?

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

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

RESULT

3I find that the applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, interest, an award or interest is payable.

ANALYSIS

4The applicant was involved in a motor vehicle accident on January 3, 2021, he was rear-ended by a third-party vehicle. The airbags did not deploy, he did not lose consciousness or require immediate medical treatment.

APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)

5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6Section 8(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

9The respondent has approved benefits up to the MIG limit.

10The applicant submits that he should be removed from the MIG, but is unclear on what basis. The submissions of the applicant focus on the treatment plans in dispute intertwined with paragraphs in support of the applicant’s removal from the MIG.

Did the applicant suffer physical injuries that warrant the removal from the MIG?

11I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition for the following reasons.

12To support his position, the applicant relies on the OCF-18, by Castle Oak Rehab Centre, dated April 6, 2021, clinical notes and records (“CNRs”) from Dr. Gus Meglis, family physician and the Disability Certificate (“OCF-3”) dated January 5, 2022. The injuries that are listed on these documents diagnose the applicant with soft tissue sprain and strains.

13I find that the applicant failed to make arguments or analysis in his submissions guiding me through the evidence upon which he relies. It is trite to say that the Tribunal does not have a duty to sift through evidence in order to make the case for the applicant, since doing so would risk the Tribunal inappropriately acting as an advocate for a party instead of a neutral arbiter in a dispute. Furthermore, it is unclear on what basis the applicant seeks to be removed from the MIG. This is enough to dismiss the application without reference to the respondent’s evidence, though I still considered it as noted below.

14I am persuaded by the respondent’s submissions, that the applicant has not provided compelling evidence that he suffered physical injuries that warrant the removal from the MIG. The respondent relies on the CNRs of Dr. Meglis, that diagnose the applicant with soft tissue sprains, and recommended physiotherapy. On March 21, 2021, and February 18, 2022 Dr. Meglis referred the applicant for a cervical spine x-ray, and the result was no concerning abnormality. On August 23, 2022, the applicant was sent for a cervical spine MRI, that showed mild degenerative changes, and Dr. Meglis opined these were due to wear and tear from work and age. Furthermore, Dr. Meglis referred the applicant to Dr. Krystyna Prutis, physiatrist, the applicant did not attend referral appointment.

15After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffered a physical injury that would remove him from the MIG. Based on the medical evidence before me I find that all diagnostic imaging performed to date has been unremarkable, and the applicant sustained sprains and strains (minor injuries) as a result of the accident.

16As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a physical impairment resulting from the accident that would warrant his removal from the MIG.

Did the applicant suffer psychological injuries that warrant the removal from the MIG?

17An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

18In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

19I find that the applicant has not provided me with any persuasive medical evidence to demonstrate that his psychological impairments justify removal from the MIG.

20The respondent submits that the applicant has not satisfied his onus of establishing that he has an accident-related psychological impairment that would remove his claim from the MIG. The respondent relies on the absence of any psychological complaint in Dr. Meglis’ CNRs or prescribed medication for a psychological impairment following the accident. For further clarity, the CNRs reveal the applicant explicitly denying any medical health issued when asked by Dr. Meglis.

21After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers from a psychological impairment that would remove him from the MIG. In the present case, I am persuaded by the CNRs of Dr. Meglis, and the absence of any complaints, medication or psychological assessment or referrals.

22As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a psychological impairment resulting from the accident that would warrant his removal from the MIG.

Did the applicant have pre-existing injuries that warrant the removal from the MIG?

23The applicant did not provide any medical evidence or submissions to support that he was unable to achieve maximal medical recovery within the MIG as a result of a pre-existing condition.

24As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has pre-existing injuries that warrant the removal from the MIG.

Did the applicant have chronic pain that warrants the removal from the MIG?

25I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

26In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries.

27I do not agree with the applicant’s position that because he remains in pain, he now suffers from chronic pain because of the accident. I find that there is no evidence of any impairment on the applicant’s functionality nor a diagnosis of chronic pain. The applicant did not provide persuasive medical evidence that his accident- related injuries had a detrimental impact on his functionality.

28The medical evidence provided by the applicant was the November 29, 2021 Section 25, Orthopaedic assessment report of Dr. Darrell Ogilvie-Harris, orthopedic surgeon. Following the virtual assessment, Dr. Ogilvie diagnosed the applicant with sustained soft tissue injuries as a result of the accident and agreed that the degenerative changes on the diagnostic imaging was age related. Dr. Ogilvie- Harris opined that the applicant was suffering from chronic pain and back pain.

29The applicant also submits that since the accident, he has been unable to complete his daily home activities, including cooking, cleaning, laundry, and grocery shopping. Furthermore, the applicant submits that he has been unable to participate in daily walks with his wife, and unable to play basketball and cricket.

30The respondent submits that the applicant has not satisfied his onus of establishing that he either suffers from accident-related chronic pain, or that his chronic pain is of such a degree to warrant removal from the MIG.

31The respondent relies on the CNRs of Dr. Meglis, the January 5, 2022 Orthopaedic Insurers Examination by Dr. Harith Abbas, orthopaedic surgeon, and the initial OCF-3 completed on January 19, 2021 by Shivani Dalwadi, physical therapist, that all diagnose the applicant with sprains and strains.

32I agree with the respondent, and I find that the applicant’s level of functionality is inconsistent with the applicant’s chronic pain claim. To arrive at this finding, I am persuaded by the medical evidence of Dr. Meglis, Dr. Abbas and Mr. Dalwadi over the virtual assessment by Dr. Ogilvie-Harris. I am not persuaded by Dr. Ogilvie-Harris’ assessment as a virtual assessment does not provide insight into any observed functional limitations associated with the applicant’s claimed pain or chronic pain. The medical evidence before me does not establish that the applicant’s functionality is impaired as a result of the accident.

33Furthermore, I find that evidence suggests that the applicant does not consistently take prescription medication since the accident for accident-related complaints, nor does the evidence suggest that he is dependent on health care providers or his family for home activities. Instead, the applicant continues to work at his pre-accident employment as a construction labourer and participates in activities of daily living.

34I am not convinced on a balance of probabilities that the applicant suffers from chronic pain because of the accident that warrants removal from the MIG.

Interest and Award

35Given that there are no overdue payments of benefits, the applicant is not entitled to interest or an award.

ORDER

36The application is dismissed, and I find that:

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

ii. The treatment plans in dispute are not payable, and

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

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).