Augillera v. TD Insurance Meloche Monnex, 2023 CanLII 98407

Citation: Augillera v. TD Insurance Meloche Monnex, 2023 ONLAT 21-004183/AABS

Licence Appeal Tribunal File Number: 21-004183/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:

Simone Augillera

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: Simone Augillera, Applicant Mohamed Elbassiouni, Counsel Michelle Velvet, Counsel

For the Respondent: Benjamin Hutchinson, Counsel Noura Bagh, Counsel Ali Alilovic, Observer

Court Reporter: Prashanth Thambipillai

Heard by Videoconference: March 20–24 and 27–28, 2023

OVERVIEW

1Simone Augillera, the applicant, was involved in an automobile accident on April 28, 2017, 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, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2On March 17, 2023 the respondent filed a Notice of Motion with the Tribunal to have the following preliminary issues heard at the start of the hearing:

i. Should documents exchanged after August 5, 2022 be admitted at the hearing as evidence?

ii. Should Non-Expert witnesses presented after the witness exchange deadline be excluded from the hearing?

iii. Is the applicant barred from pursuing an award given the particulars of the award were not exchanged as per the Tribunal Order?

Documents exchanged after August 5, 2022 admitted

3I find the documents exchanged after August 5, 2022 and before January 20, 2023 will be admitted into evidence at the hearing and documents exchanged on February 13 and March 14 will be admitted into evidence and given appropriate weight.

4The respondent brought a motion at the start of the hearing requesting the exclusion of all documents provided by the applicant to the respondent after August 5, 2022 which the respondent submits are in direct contravention of the Tribunal’s orders as found in the Motion Order on July 14, 2022.

5The applicant did not provide any documents/reports until January 19, 2023. The respondent alleges that allowing admission of these documents would be unfair and argues that it has been highly prejudiced as its experts have not been able to review this new material and the respondent was not able to provide the Tribunal with addendum reports.

6The applicant says that he tried to reach out to counsel to determine what documents should be exchanged but did not hear back.

7Upon review of the Case Conference Report and Order dated March 3, 2022, it indicates that the parties agreed that an order listing the documents to be produced and exchanged by the parties is not necessary.

Analysis:

8In the Case Conference Report and Order, both parties were able to formally request production particulars to be stated in the order, however, they mutually agreed to request and exchange productions without order of the Tribunal.

9When the deadline for the exchange of productions passed (August 5, 2022), the respondent did not file a motion with the Tribunal seeking a remedy until March 17, 2023, just before the hearing was scheduled to start on March 20, 2023. I conclude from this that there were no issues up to this date.

10The respondent submits that the applicant did not provide him with any productions until January 19, 2023. The order clearly states that each party will exchange any documents/reports that they intend to present as evidence at the hearing no later than 60 days before the start of the hearing. The applicant has met that deadline.

11I am not persuaded by the respondent that there has been a breach in the Tribunal’s orders since an order does not exist outlining the exchange of particular productions between the parties.

12The respondent notes that the applicant filed various additional documents by way of email dated February 13th and March 14, 2023. The documents included in the email are; a letter dated January 25, 2023 from the Ministry of Children, Community and Social Services approving the disability benefits for the applicant, a prescription summary received on March 13, 2023 and a letter from ODSP.

13The documents provided up until January 19, 2023 will be admitted into evidence.

14Regarding the documents sent to the respondent after the 60 day deadline, the information provided in the documents are updates to the information already given to the respondent. I do not see any prejudice to the respondent by allowing the material.

15The respondent was given extra time to review the material as a remedy.

Non-expert witnesses not excluded from the hearing

16I find the parties will work together to finalize a witness schedule at the start of the hearing. I denied the respondent’s request to exclude witnesses.

Analysis:

17The respondent sought to exclude the applicant's non-expert witnesses for failing to provide a summary of anticipated evidence as required by Rule 9 of the Common Rules of Practice & Procedure, pertaining to the following witnesses: Hazel Phillip (Mother of Applicant) – on the list of February 18, 2023, Dr. Drinna Icatar (Chiropractor), Dr. Gloria Fiati (Psychologist), Dr. Henry Thai (Family Doctor), Dr. Trina Triew (Family Doctor), Dr. Mohamed El-Saidi (Psychiatrist). Further, the respondent submits that the addition of these witnesses will unnecessarily extend the length of the hearing and intrude on the time allotted to the expert witnesses to give evidence pertaining to the actual issues in dispute.

18The respondent also submits that the applicant has not served it with will-say statements in advance of the hearing.

19The parties were ordered by the Tribunal to exchange and file their finalized witness lists no later than 30 days before the start of the hearing (or by February 18, 2023).

20The applicant served its final witness list on the Tribunal and the respondent on February 22, 2023, which outlined 14 proposed witnesses and the respondent’s witness list was received by the Tribunal on February 23, 2023. The Tribunal then received a second witness list form the applicant on March 1, 2023 and a second list from the respondent on March 16, 2023.

21The applicant submitted that there were scheduling conflicts that arose and that there wasn’t an intention to withhold the names of the witnesses that were to appear.

22At the start of the hearing, the respondent also needed to make changes to the witness schedule due to witness availability.

23After hearing submissions from both parties, I ordered the parties to collaborate together on a mutually agreed on schedule for the remainder of the hearing. The length of the hearing was enough to accommodate these changes.

24The applicant served the respondent with will-say statements at the start of the hearing.

25The respondent’s request to exclude witnesses was denied.

The applicant is not barred from claiming an award

26I find the applicant is not barred from pursuing an award.

27The applicant’s particulars of the award were served on the respondent on January 20, 2023. The respondent submits the particulars it received were boilerplate and very general. It says the applicant's failure to provide particulars has prejudiced the respondent's ability to know the case it has to meet and to make full answer and defence.

28The applicant says it did provide particulars of the award and that the applicant requested the log notes from the respondent on February 8, 2023. The respondent responded on February 13, 2023, saying that, to the respondent’s counsel’s knowledge, this is the first such request made for the adjuster log notes, the exchange deadline has passed, and the respondent is not agreeable to producing the log notes. The respondent’s position is that there is no relevance to this accident benefit file. Without those files, no specificity could be given beyond what was provided.

29I find that particulars of the award claim were given to the respondent, even though the claim is that they are “boilerplate” and not specific enough. Whether or not they are specific enough, does not bar the applicant from proceeding with a request for a special award.

PROCEDURAL ISSUES

30During the hearing, Dr. Moshiri notified the Tribunal that his wife was rushed to the hospital and was in critical condition. He attended the hearing because he was asked to attend by the respondent and did not want to shirk his responsibility. Dr. Moshiri’s distress was evident during his testimony: he was having difficulty answering questions, was volunteering information that counsel was not asking for and was not articulating himself in a way that was helpful.

31I took submissions from both parties. Applicant’s counsel objected to allowing the doctor to leave, he contested the shortened amount of questioning given to Dr. Moshiri and felt that he should have pushed on as he was already at the hearing. He gave testimony for approximately 15 minutes.

32The respondent agreed that the doctor was not in a condition to continue with questioning and that even if he was to remain, he was not of value at the hearing. He agreed with the decision to let the doctor go under these unforeseen circumstances.

33As a result, I excused the doctor. I will rely solely on his report. I will take the limited opportunity the appellant had to cross examine Dr. Moshiri into account when determining the weight that I will give to his evidence.

SUBSTANTIVE ISSUES

34The issues in dispute for this hearing are:

i. Are the injuries the applicant reported due to the April 28, 2017 accident?

ii. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

iii. Is the applicant entitled to an income replacement benefit of $262.37 per week from December 10, 2018 to date?

iv. Is the applicant entitled to two psychological treatment plans in the amount of $6,184.52 dated December 16, 2019 and $4,838.00 dated June 29, 2020?

v. Is the applicant entitled to a physiotherapy treatment plan in the amount of $1,596.92?

vi. Is the applicant entitled to $17,006.50 for the cost of examinations for catastrophic impairment assessments?

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

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

RESULT

35Based on my review of the evidence before me, I find the applicant does not meet the definition of a catastrophic impairment in the Schedule and, since the maximum amounts for medical and rehabilitation benefits for non-catastrophic impairments have been exhausted, no benefits are payable, no interest is payable, and an award is not appropriate.

Analysis

The applicant’s injuries were not caused by the accident

36I find that the applicant has failed to establish on a balance of probabilities that her back, neck, left knee injuries and low mood were caused by the 2017 accident.

37The Divisional Court has confirmed that the “but for” test is the correct test to be used when determining causation in accident benefits cases. Under the “but for” test, the accident need not be the sole cause nor the primary cause; however, it must have been necessary to bring about the injury. The applicant bears the burden of proving on a balance of probabilities that the accident was a necessary cause of her impairments, including her psychological or behaviour impairments.

38The applicant was involved in two motor vehicle accidents, one on June 11, 2015 and the second (the subject accident) on April 28, 2017. The first accident left her with back, neck, left knee injuries for which she was receiving treatment, as well as headaches and low mood. The applicant alleges that as a result of the second accident, she suffers shoulder, back, neck and left knee pain and low mood and headaches.

39The applicant submits that her impairments from the 2015 accident were 80 to 100 percent healed at the time of the 2017 accident and, as a result of the second accident, she believes she has endured significant enough injuries that she should be deemed catastrophic under criterion 7 under the Schedule. She also seeks entitlement to the accident benefits claimed.

40The respondent argues that the applicant’s impairments were not caused by the 2017 accident. It submits there is a plethora of documentation to show that Ms. Augillera was reporting a worsening of her condition and receiving substantial treatment for her injuries with an emphasis on her left knee due to the 2015 accident right up until the 2017 accident.

41The respondent also points out that there were two separate incidents where the applicant reported to her family doctor a re-injury of her left knee as the result of other incidents unrelated to the 2017 accident. Once a child ran into her and a second time she twisted her knee. Both times, she sought medical attention and treatment.

42Lastly, the respondent asserts that the applicant has not done everything she can to treat her left knee injury. She was instructed by several treatment providers not to wear a knee brace as it would hinder the progression of her healing, but against the advice of the treatment providers, she continued to wear a knee brace.

Condition before the 2017 accident

43It is the applicant’s position that she was mostly healed at the time of the accident in 2015 and has now sustained catastrophic injuries caused by the 2017 accident.

44The applicant testified during the hearing and reported to several treatment providers, including chiropractor Dr. Fitzgerald and psychologist Dr. Fiati, that just before the 2017 accident she was 80 percent recovered from the 2015 accident.

45She reported to psychologist Dr. Moshiri, the respondent’s assessor, on May 27, 2021 that she had only mild pain in her left knee before the 2017 accident, and that she had recovered 100 percent from her previous injuries. She also indicated that she was not using a brace for her knee prior to the 2017 accident and was not taking any medication.

46The applicant’s reports with respect to her previous health are inconsistent with the contemporaneous medical records.

47I find within her medical documents subjective reporting from the applicant linking her current injuries to the 2017 accident, but I have not been pointed to any expert opinion that clearly points to the accident in 2017 as the cause. Nor have I been pointed to an expert opinion that says but for this accident she would not have sustained these physical and psychological impairments.

48The applicant’s medical records note knee, back, neck, shoulder injuries and low mood due to the 2015 accident. She was receiving ongoing treatment, which included a left knee surgery and was prescribed Tylenol 3, regular Tylenol, Aleve, Cymbalta, Naproxen, and Zantac for her pre-accident pain complaints.

49Psychologist Dr. Patel’s report dated November 18, 2020 indicates the applicant reported having left knee surgery as a result of the 2015 accident and that she was having pain in her back. The report further states…”Ms. Augillera was involved in an MVC on June 20, 2015. Her immediate injuries included ‘whole body ache especially in my back.’”

50Approximately two and a half months prior to the 2017 accident a Pain Management Clinic letter dated February 6, 2017 reads “… has been suffering with intermittent pain in her left knee … Pain is aching, with occasional locking and buckle of left knee. Pain is worse with movements of left knee and with prolonged standing, or walking. She also has intermittent aching pain in her lower back, since the MVA. The same report outlines: “Limitations: Prolonged Standing Prolonged Walking. Domestic: limited due to pain. Recreation: limited due to pain. Entertainment: limited due to pain. Social activity: limited due to pain”.

51On April 5, 2017, a little more than three weeks before the April 28, 2017 accident, an excerpt taken from her family doctor’s clinical notes and records states: “2-3 weeks ago received an injection. It helps but the pain has returned. She was wearing a patellar brace”……”she has knee pain” ….”she will see the orthopedic surgeon again soon.”

52Dr. Dao, chronic pain specialist, documents “I first saw Ms. Augillera on February 6, 2017 for her intermittent pain in her left knee that she had been suffering since an MVA in June 2015”. In Dr. Dau’s progress note, it states that the applicant received injections on February 16, 2017 and March 2, 2017 and April 3. 2017 prior to the second motor vehicle accident.

53Dr. Liew notes she was on a trial of Cymbalta, an antidepressant medication, before the 2017 accident and was referred for counselling with Dr. James on July 6, 2015.

54The applicant testified at the hearing that she was receiving ongoing physiotherapy treatment for her back, neck, shoulder, and left knee before the 2017 accident and that she was doing aqua therapy, receiving TENS treatment, and was getting injections in her left knee, back, and shoulder, leading up to the 2017 accident.

55The evidence before me—especially that from the applicant—strongly contradicts the applicant’s assertion that she was 100, or even 80, percent recovered from her injuries sustained in the 2015 accident. Just weeks prior to the 2017 accident she was requiring substantial medical care and treatment.

56I am not satisfied that the applicant’s complaints or injuries were significantly different after the 2017 accident than they were before that accident and the applicant has not convinced me on a balance of probabilities that her, back, neck, left knee injuries and low mood are caused by the subject accident.

Other incidents causing impairments

57I find that a significant number of Ms. Augillera complaints after the 2017 accident are related to incidents and injuries not sustained in that accident.

58The applicant visited Dr. Gilbert Yee, chronic pain specialist, at the Ambulatory Care Clinic on two separate occasions. Once on November 26, 2019 because she had fallen and twisted her knee and a second time on September 1, 2020 because a child ran into her left knee. The report describes her injury as “child ran into her left knee medially, has pain, cracking x 3. It has gotten worse since that time, and she continues her brace and walks with it”.

59Several doctors have opined that the applicant’s left knee issue is more than likely caused by “prior Osgood-Schlatter disease”. This is set out in left knee ultrasound notes from February 9, 2017, then again in her family doctor’s records of April 3, 2019, and in a letter from Dr. Yee on May 14, 2019.

60The applicant says that after the 2017 accident her shoulder immediately started to hurt, and she sought treatment. An x-ray taken of her shoulder on March 28, 2019 shows the result is a “normal study” and an ultrasound of her left shoulder taken the same day concludes “Mild calcific tendinitis. Trace biceps tenosynovitis”. The applicant also complained of a shoulder injury after the 2015 accident. She has not provided me with medical records that indicate this injury has been exacerbated or changed due to the 2017 accident. Therefore, I attribute the causation of this injury as well to the 2015 accident.

61A report from Dr. Patel states: “Pre-accident she complained of chronic left knee pain due to a previous accident in June 2015. As a result, she had difficulty standing for long periods of time and she had low mood.” Ms. Augillera has had other contributing factors for her low mood, she testified that she was living with her mother, she and her mother had a difficult past relationship which she struggled with, she also lost her father in April of 2021.

The applicant’s complaints were the result of ignoring treating providers’ advice

62I find that some of the applicant’s ongoing complaints are the result of failing to comply with the advice of her treating medical providers.

63Although the applicant says that she has complied with her doctor’s recommendations and only wears a knee brace on her left knee when necessary, the evidence demonstrates that is not the case. I find the applicant relied heavily on the use of a knee brace against her treating provider’s advice.

64During a visit with the occupational therapist Ranya Ghatas on September 28, 2021 Ms. Augillera explained that she uses a supportive left knee brace when she walks outdoors but noted that she has been told not to use it all the time to avoid dependency.

65The medical reports and her testimony show that the applicant continues to rely on a knee brace against the recommendation of her treating practitioners. Dr. Liew’s, family doctor, notes disclose the following:

1. August 16, 2017, – L knee injury saw ortho on July 17 recommended weaning off knee immobilizer, continue rehab;

2. June 8, 2017 - Needs to wear the brace less - she should continue strengthening with physio and need to do more often at home;

3. May 31, 2018, Always has brace on has not gone a whole day without - she needs to build up the strength as she says it is pain why she wears it, but she has pain clinic have told her MRI gives no reason and ortho no reason why she should be in brace daily she feels unstable because she has been wearing it for so long. She needs to build up the strength. She says it is pain why she wears it.

66In an August 27, 2019 note, chiropractor Dr. Brian Fitzgerald says, “No knee brace needed, stand/sit for prolonged period, no physical impairments”. On November 26, 2019, chronic pain specialist Dr. Yee says, “Saw Simone today for follow-up regarding the left knee – twisted her knee and fell – uses a brace – she exacerbated her knee complaints”.

67Dr. Icatar, chiropractor, testified that the prolonged use of a knee brace can impede healing. Dr. Urovitz, an assessor for the respondent, gave the same opinion. In his report he stated that the immobilizer is meant to be worn for a short period of time until the inflammation settles down. By wearing a brace for a prolonged period, it does not allow the strengthening and healing of the knee. He was not in agreement with the applicant wearing a brace for the length of time that she was.

68I agree with the respondent’s position. It is well documented in the medical reports that the applicant was instructed to wean off of the brace, engage in home exercises and strengthen her left knee. By her own admission she was also advised that the prolonged use of the brace would create a dependency and prohibit her healing.

69I find that within the doctors’ reports it is clearly documented that she wore the brace excessively. I find, based on the expert testimony at the hearing, and the applicant’s admission, that she did not heed the expert advice and as a result more than likely contributed to her ongoing complaints.

70In summary, I do not see that the applicant was well on her way to recovery from the 2015 accident injuries. She was prescribed medication and receiving substantial treatment leading up to the 2017 accident.

Conclusion regarding causation

71I find that the 2017 accident did not cause the applicant’s injuries. I find that the 2015 accident, other incidents causing injury, her pre-existing Osgood-Schlatter disease, her failure to follow the advice of her treating doctors and other life events account for substantially all of the applicant’s ongoing complaints.

72Based on the evidence and my findings above, I am not satisfied on a balance of probabilities that the applicant’s neck, back, shoulder, left knee and low mood is as a direct result of the 2017 motor vehicle accident.

Catastrophic impairment under criterion 7

73I find the applicant has not proven that she meets the catastrophic test determination under the Schedule.

74Section 45(6) in the Schedule provides that, if an insured person is determined to have sustained a catastrophic impairment as a result of an accident, they are entitled to payment of all expenses incurred before the date of the determination if they are otherwise be entitled to payment under the Schedule by virtue of having sustained a catastrophic impairment.

75On December 2, 2020, Dr. Getahun completed an Application for Determination of Catastrophic Impairment (OCF-19) on behalf of the applicant and a full report was completed on November 30, 2020. The findings in the report were that the applicant had a WPI score of 57% deeming her catastrophically impaired under criterion 7.

76It is the respondent’s submission that the applicant’s catastrophic assessors erred in the methodology and interpretation of the American Medical Association’s Guides to the AMA Guides to the Evaluation of Permanent Impairment 4th Edition, 1993 when giving her a WPI rating of 57% under criterion 7.

77As I have found that the applicant has failed to prove that her impairments were caused by the 2017 accident, I find that applicant is not catastrophically impaired as result of that accident, under criterion 7.

The applicant is not entitled to income replacement benefits

78The test for entitlement to post-104 week IRBs is set out in section 6(2)(b) of the Schedule, which requires the applicant to have suffered, as a result of the accident, a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training, or experience. This is referred to as the “complete inability” test.

79The complete inability test for a post-104 weeks IRB is a higher bar than the “substantial inability test” for a pre-104 weeks IRB. Since the post-104 weeks IRB test is more stringent than the pre-104 weeks IRB test, it logically follows if the applicant was not entitled to a pre-104 weeks IRB, she cannot be entitled to a post-104 weeks IRB unless there is a significant deterioration in her condition. The onus is on the applicant to prove she is entitled to a post-104 weeks IRB.

80The applicant submitted that due to her injuries from the 2017 accident primarily her left knee, she cannot continue to work and should be eligible for income replacement benefits.

81She attempted to go back to work on a trial basis to see if she can function but was unable to due to the amount of standing required and pain in her left knee.

82Given my review of the evidence, and my finding that her knee injury is not caused by the 2017 accident, she is not entitled to the income replacement benefits. The Schedule clearly states it must be as a result of the accident.

83I find the applicant is not entitled to income replacement benefits.

Issue 3: The applicant is not entitled to any of the two psychological treatment plans

84Since the applicant is not deemed catastrophically impaired as a result of the 2017 accident and has exhausted her policy limits, there is no further funding available.

Issue 4: The applicant is not entitled to the physiotherapy treatment plan

85The applicant is not entitled to further physiotherapy treatment as listed in the application.

86Since the applicant is not deemed catastrophically impaired as a result of the 2017 accident and has exhausted her policy limits, there is no further funding available.

Issue 5: The applicant is not entitled to the cost of examinations for catastrophic impairment assessments

87The applicant is not entitled to the cost of examinations for further catastrophic impairment assessments.

88Since the applicant is not deemed catastrophically impaired as a result of the 2017 accident and has exhausted her policy limits, there is no further funding available.

Issue 6: Interest

89Interest is payable under the Schedule on overdue payment of benefits. As no payments are found payable, the claim for interest is dismissed.

Issue 7: Award

90Section 10 of the Ontario Regulation 664 permits the Tribunal to award a lump sum of up to 50 per cent of the amount of which the applicant was entitled at the time of the award together with interest on all amounts owing if it finds that the respondent has unreasonably withheld or delayed such payments.

91There is no evidence that the respondent unreasonably withheld or delayed payments of benefits to the applicant. Accordingly, the claim for an award is dismissed.

ORDER

92The applicant’s claim of catastrophic impairment is dismissed.

93The applicant is not entitled to an income replacement benefit, nor to any treatment plans or costs of examinations.

94The respondent is not liable to pay an award under s. 10 of O. Reg. 664.

95No interest is payable.