Licence Appeal Tribunal File Number: 21-000289/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:
Jacob Castellon Mendez
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Lyndra Griffith
APPEARANCES:
For the Applicant:
Jacob Castellon Mendez, Applicant
Amelia Theiss, Counsel
For the Respondent:
Bhavpreet Saini, Counsel
HEARD:
In Writing
OVERVIEW
1Jacob Castellon Mendez, the applicant, was involved in an automobile accident on January 2, 2019, 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, Unifund, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The applicant submits that the respondent should be precluded from relying on the s. 44 Insurer Examination (IE) Report of Dr. Douglas Saunders, psychologist, dated May 27, 2022, for two reasons: first, late service, and second, Dr. Saunders’ report refers to another IE report that was never served.
3The applicant submits that the respondent served Dr. Saunders’ report on May 27, 2022, which contravenes the Tribunal’s Case Conference Report and Order (CCRO) and the respondent’s agreement to provide the applicant a copy of its IE assessment reports by March 31, 2022. Had the respondent complied with the CCRO, the applicant would have had enough time to obtain a rebuttal s. 25 report. The applicant submits that because of late service, the respondent has been put in a better position than the applicant.
4The applicant also submits that Dr. Saunders’ report lists an IE Report of Dr. Khan, dated April 12, 2022, which was never served on the applicant. The applicant submits that to date, the respondent is in extreme non-compliance with s. 36(7) of the Schedule and the applicant has not been served with a copy of this report.
5The respondent submits that the applicant has misrepresented the facts. The CCRO states that the respondent would provide its reports by March 31, 2022. The applicant also agreed to provide to the respondent, a copy of their expert reports in response to the IEs by May 13, 2022. On January 12, 2022, the respondent scheduled the s. 44 psychological IE after it had received the medical records it had previously requested. On January 31, 2022, counsel for the applicant sent a letter to the respondent stating: “This is further to your letter dated January 12, 2022. Please cancel the Psych insurer’s examination scheduled on February 3, 2022, with Dr. Godwin as our client will not be attending. We will proceed once our s.25 report is available.” On February 1, 2022, the IE was rescheduled for March 3, 2022. However, on February 25, 2022, the applicant’s counsel sent a letter to the respondent stating: “Please cancel the Psychological IE on March 3, 2022, with the psychologist as our client will not be attending. We will proceed once our s.25 report is available.” The respondent submits that it had every intention of providing the IE reports by the deadline but was unable to due to the actions of the applicant’s representative.
6In essence, the respondent submits that the applicant’s delayed attendance at IEs is responsible for the delay in the preparation of the IEs and their subsequent reports. The s. 44 psychological IE proceeded on May 11, 2022, the report was released on May 26, 2022, and served on the applicant on May 27, 2022. The respondent submits that it would have been impossible to obtain the IE by March 31, 2022 given the applicant’s failure to attend the two scheduled IEs and failing to comply with s. 44 of the Schedule. The respondent notes that the final deadline provided in the CCRO for the exchange of documents was May 31, 2022, and the respondent met this deadline. It would be unfair for the respondent to not be allowed to rely on the psychological IE report. The respondent also contends that it served Dr. Khan’s report on the applicant and their representative on April 13, 2022.
7Having considered the parties’ evidence and submissions on this preliminary issue, I agree with the respondent that the applicant contributed to the respondent’s delay in producing its IE reports by delaying his attendance at the scheduled IE. Dr. Saunders’ report is relevant to this proceeding. I am not convinced that the applicant would be prejudiced by admitting Dr. Saunders’ report, particularly since the applicant’s delay in attending the IE consequently delayed Dr. Saunders’ report. If the applicant thought a rebuttal report was necessary, he could have brought a motion to the Tribunal to allow him additional time to obtain it, but he chose not to pursue this route. At Tab 6 of the respondent’s evidence brief is a letter addressed to the, applicant indicating that the respondent sent Dr. Khan’s report to the applicant and their representative on April 13, 2022. I therefore decline to grant the applicant’s request for relief.
8The respondent similarly requests the Tribunal to exclude pages 1050 to 1133 of the applicant’s submissions and brief as they contain medical records that were never provided to the respondent in advance of the May 31, 2022 deadline set by the Tribunal in the CCRO. The respondent submits that the applicant should not be allowed to rely on these records as they failed to produce them in accordance with the CCRO.
9These records are pre- and post-accident medical records that would be relevant to the issues in dispute. Apart from the lateness of their disclosure, I see little prejudice to the respondent by allowing these records as part of the applicant’s brief. I also see no reason why the applicant should not be allowed to rely on these records if the respondent is also allowed to rely on its report that was also exchanged beyond the deadline.
ISSUES
10The issues in dispute are:
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)?
Is the applicant entitled to $3,550.19 for physiotherapy proposed by 101 Physio in a treatment plan/OCF-18 denied on January 21, 2019?
Is the applicant entitled to $2,460 for psychological assessment proposed by 101 Physio in a treatment plan denied on May 16, 2019?
Is the applicant entitled to a non-earner benefit of $185.00 per week from August 14, 2019 to January 2, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
11I find that:
i. The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore, are not subject to treatment within the $3,500.00 limit and in the MIG.
ii. The applicant is not entitled to a non-earner benefit of $185.00 per week from August 14, 2019 to January 2, 2021.
iii. The applicant is entitled to $3,550.19 for physiotherapy proposed by 101 Physio in a plan denied on January 21, 2019.
iv. Is the applicant is not entitled to $2,460 for a psychological assessment proposed by 101 Physio in a plan denied on May 16, 2019?
v. The applicant is entitled to interest in accordance with s. 51 of the Schedule for physiotherapy treatment.
ANALYSIS
The applicant is not subject to the limits of the MIG
12The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
13Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap 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 a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
14The applicant submits that he sustained injuries in the accident that are not captured by the definition of a minor injury, chiefly a head injury and psychological injuries. The applicant also submits that he should be removed from the MIG on account of his pre-existing medical conditions, including a previous head injury and high-grade right ankle sprain.
15I find that the applicant has met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of a pre-existing conditions.
Pre-existing Condition
16It is well settled that a pre-existing condition will not automatically exclude an insured from the MIG: it must be shown to prevent maximal recovery from the minor injury caused by the accident if he is kept within the MIG.
17The applicant submits that he has a pre-existing high-grade right ankle sprain injury that will prevent him from achieving maximal recovery within the MIG. The applicant relies on the clinical notes and records of Humber River Hospital, diagnosing a high-grade ankle sprain as a result of an “incident” that occurred on August 24, 2018. These records include the Emergency Record dated August 24, 2018, diagnosing a high ankle sprain. The applicant submits that the Treatment Confirmation Form (“OCF-23”) dated January 7, 2019, completed by chiropractor Wayne Coghlan lists (among other injuries) sprain and strain of ankle, pain in lower limb and patellofemoral disorders. The OCF-23 describes the applicant’s prior condition of right ankle sprain that occurred in August 2018 was aggravated by the accident and could affect his response to treatment. The applicant also notes that in the clinical notes and records of 101 Physio Medical Rehabilitation Centre, Dr. Coghlan completed an initial examination report on January 7, 2019 and the applicant reported ankle/foot pain.
18The applicant submits that the Disability Certificate (“OCF-3”) dated February 14, 2019, completed by chiropractor, Dr. Khaira Saranjit, also lists sprain and strain of ankle, pain in lower limb and patellofemoral disorders among the applicant’s accident-related injuries.
19The respondent submits that the applicant did not provide any objective evidence of a previous ankle injury until the receipt of the applicant’s Humber River Hospital CNRs on December 30, 2021. As a result, it scheduled a s. 44 insurer’s examination to address whether the applicant should be subject to the MIG. In the physiatry IE report by Dr. Khan dated April 12, 2022, the applicant denied any ongoing physical issues prior to the subject accident. Dr. Khan opined that as a result, from a physical perspective, there were no pre-existing issues identified that would prevent the applicant from achieving maximal recovery if subject to the MIG. Dr. Khan diagnosed the applicant with cervical and thoracic spine sprain/strain and concluded that his injuries were within the MIG.
20The respondent submits that there is no evidence to suggest that the applicant impacted his ankle in the subject accident, nor has any imaging of the right ankle been completed since the subject accident. The respondent submits that the applicant has not proven that he suffered a pre-existing right ankle soft-tissue injury, nor that it is an injury that would prevent him from achieving maximum recovery from within the MIG.
21I disagree with the respondent that the applicant has not proven that he suffered a pre-existing right ankle soft-tissue injury. The respondent acknowledges that the applicant suffered an ankle sprain on August 24, 2018 but fails to acknowledge that the applicant’s OCF-23 and OCF-3 lists a sprain and strain of ankle, pain in lower limb and patellofemoral disorders. An OCF-18 was also completed by Dr. Coghlan on January 7, 2019. Dr. Coghlan listed sprain and strain of ankle, pain in lower limb and patellofemoral disorders as the applicant’s injuries. The OCF-18 lists his prior right ankle sprain of August 2018 as a condition that could affect his response to treatment. It is not unreasonable that someone who suffered an ankle sprain may be susceptible to aggravating that sprain if they are injured in a motor vehicle accident just over four months later. I find that the applicant has proven on a balance of probabilities that he had a pre-existing ankle injury that would prevent his recovery under the MIG.
22Having removed the applicant from the MIG on the basis of s. 18(2) of the Schedule, I therefore do not need to decide the applicant’s other claims to be removed (i.e., head injury or psychological injuries).
The applicant is entitled to the disputed OCF-18 for physiotherapy treatment
23Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
24The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.
25The applicant submits that the physiotherapy treatment plan is reasonable and necessary because there is evidence that he reaggravated his right-ankle injury as a result of the accident; and ankle pronation has been identified as a barrier in his recovery.
26Under part 9, the goals identified include pain reduction, increase in strength, and increase in range of motion. The respondent submits that at the time of this OCF-18, the applicant had not provided any medical evidence by way of clinical notes and records (CNRs) to support the reasonableness and necessity of this treatment plan.
27The applicant complained of ankle/foot pain at the time this OCF-18 was completed. The OCF-3 dated February 14, 2019 also lists sprain and strain of ankle, pain in lower limb and patellofemoral disorders among the applicant’s accident-related injuries.
28The respondent submits the applicant that the applicant has failed to prove his onus. The respondent relied on the IE of Dr. Khan but I do not find it persuasive given that the report was drafted more than 3 years after this plan was submitted.
29I find that on a balance of probabilities, this plan is reasonable and necessary given the proximity of the accident when the request for this treatment was made. There was also evidence that several months before the accident the applicant suffered a high ankle sprain and therefore it is more likely than not that physiotherapy treatment of this nature would have been warranted. The costs and recommended modalities are reasonable in light of the applicant’s injuries.
The applicant is not entitled to the disputed OCF-18 for a psychological assessment
30The onus to prove that medical benefits are reasonable and necessary lies with the applicant. In this case, the applicant has failed to meet his onus.
31Under part 9, the goal of the plan is to assess the applicant’s psychological condition and recommend possible psychological treatment if required.
32The applicant submits that a screening interview completed in the OCF-18 of Dr. Peter Waxer, dated April 17, 2019, indicates the applicant described hitting his head on the sidebar of the window and expressed concerns with a clicking sound on the left side of his jaw, a sensation of water in the left ear, and driving anxiety.
33The applicant submits that the psychological assessment is reasonable and necessary because there is evidence that he suffers from psychological symptoms as a result of the accident; and psychological treatment would aid in treating his identified symptomatology of anxiety.
34The respondent submits that the applicant has not provided any objective medical evidence of a psychological impairment as a result of the accident in any of the CNRs. The psychological IE by Dr. Saunders, dated May 26, 2022, did not find any evidence of a psychological impairment.
35The respondent submits that the opinions and conclusions of Dr. Saunders should be preferred by the Tribunal because the applicant has failed to discharge his onus to establish the reasonableness and necessity of the treatment plan.
36The applicant submits and relies upon the treatment plans themselves in support of the treatment plan being reasonable and necessary. However, the treatment plan on its own is not compelling evidence in support of treatment. The applicant has not submitted any compelling contemporaneous evidence in support of treatment. Without additional information or submissions to justify why this plan is reasonable and necessary the applicant has not proven on a balance of probability that this plan is payable.
The applicant is not entitled to a non-earner benefit
37I find that the applicant has failed to prove on a balance of probabilities that he is entitled to NEBs for the period of August 14, 2019 to January 2, 2021.
38The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident. Section 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.
39“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”
40To establish entitlement to a NEB, the Ontario Court of Appeal confirmed in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 at para 50, that the analysis should include the following:
i. A comparison of the applicant’s activities and life circumstances before and after the accident.
ii. A consideration of pre-accident life and circumstances involves more than a snapshot of life in the timeframe immediately before the accident, but rather an assessment of the activities and circumstances over a reasonable period prior to the accident.
iii. All the pre-accident activities in which the applicant ordinarily engaged in should be considered. Greater weight may be assigned to those activities which the applicant identifies as being important in his pre-accident life.
iv. It is not sufficient to demonstrate that there were changes in post-accident life. Rather, it is incumbent to establish that those changes amounted to being continuously prevented from engaging in substantially all pre-accident activities.
v. To look at whether the applicant is “engaging in” an activity, the activity must be viewed. The way an activity is performed, and the quality of performance post-accident must also be considered.
vi. An inquiry into whether the degree of pain experienced either at the time or subsequently to the activity is such that the applicant is practically prevented from engaging in those activities.
41The applicant submitted an Application for Benefits (OCF-1) on January 8, 2019 and a Disability Certificate (OCF-3) on February 14, 2019. The OCF-3 indicated that the applicant was suffering a complete inability to carry on a normal life. An Employer’s Confirmation Form (“OCF-2”) was submitted to the respondent on February 21, 2019.
42On the day of the accident, the applicant was both employed and enrolled in secondary school, and the OCF-3 indicated that he met the test for both an Income Replacement Benefit (“IRB”) and NEB. On February 28, 2019, the respondent sent a letter stating that he was eligible for one of an IRB or NEB and requested an OCF-10 election. The respondent submits that it followed up for an OCF-10 election on March 21, 2019, April 22, 2019, June 10, 2019, and July 23, 2019 but the applicant did not respond.
43The applicant takes the position that denial of the NEB is invalid.
44The applicant states that the respondent’s letters were defective, as the applicant was not qualified to receive an NEB per section 12(3)(b) of the Schedule. However, the respondent submits that s.12(3)(b) of the Schedule states that the insurer is not required to pay a NEB before the insured person is 18 years of age. The respondent submits that the applicant may still be entitled to an NEB before he turns 18, but the respondent would not be mandated to pay the NEB until the age of majority. The respondent states that the applicant was entitled to one of an IRB or NEB and the applicant would have been over 18 for a majority of the 104-week period for an NEB. As a result, the respondent submits that it was reasonable to request an OCF-10 election from the applicant to confirm which benefit he wished to receive.
45The respondent submits that as per s. 35 of the Schedule, since the applicant was entitled to an IRB or NEB, a notice was sent to the applicant advising the applicant that he must elect, within 30 days, the benefit he wishes to receive. The respondent requested an OCF-10 election on five separate occasions. To date, the applicant has not provided an OCF-10 election. NEB entitlement ended on January 2, 2021. The respondent submits that the applicant’s failure to provide an OCF-10 election, despite five separate requests, precludes him from obtaining any NEBs.
46Although the applicant is claiming a NEB, he is noted to be eligible for both an IRB and an NEB, and has yet to make an election. The applicant is relying on the fact that the respondent sent the applicant a request for an OCF-10 election prior to his 18th birthday and therefore the request to elect between the benefits is defective. The applicant turned 18 on August 14, 2019 and there was plenty of opportunity for the applicant to make an election prior to this hearing. As there has not been an election and as the respondent has not denied the applicant an NEB, the Tribunal does not have jurisdiction to hear this issue as there is no dispute between the parties as required by s. 280 of the Insurance Act.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with s. 51 of the Schedule for physiotherapy treatment.
ORDER
48I find that the applicant:
i. The applicant’s injuries are not subject to treatment within the $3,500.00 limit and the MIG.
ii. The applicant is entitled to $3,550.19 for physiotherapy proposed by 101 Physio in a plan denied on January 21, 2019.
iii. Is the applicant is not entitled to $2,460 for a psychological assessment proposed by 101 Physio in a plan denied on May 16, 2019.
iv. The applicant is not entitled to a non-earner benefit of $185.00 per week from August 14, 2019 to January 2, 2021.
v. The applicant is entitled to interest in accordance with s. 51 of the Schedule for physiotherapy treatment.
Released: October 17, 2023
Lyndra Griffith
Adjudicator