Licence Appeal Tribunal File Number: 22-009388/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:
Tyrell Thomas
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Teresa Walsh
APPEARANCES:
For the Applicant:
Waqas Amjad, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Tyrell Thomas, the applicant, was involved in an automobile accident on February 24, 2021. The applicant sought benefits from the respondent, Allstate Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the benefits in dispute. The applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3As listed in the case conference report and order released May 4, 2023 (the “CCRO”), the issues in dispute are:
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 Minor Injury Guideline (“MIG”) limit? Note: The parties agree that the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,157.79 for physiotherapy services, proposed by Gibson Wellness Centre Inc. in a treatment plan submitted November 9, 2021 and denied November 10, 2021?
iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Complete Rehab Centre in a treatment plan dated June 15, 2021 and denied July 12, 2021?
iv. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 24, 2021 to February 24, 2023?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
4As requested in its submissions for this hearing, is the respondent entitled to $2,000.00 in costs from the applicant?
RESULT
5The applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans for physiotherapy services and a psychological assessment.
6The applicant is not entitled to a non-earner benefit for the period in dispute.
7As no benefits were unreasonably withheld or delayed, no award nor interest is payable.
8The respondent is not entitled to any costs.
9The application is dismissed.
ANALYSIS
Applicant’s injuries do not fall outside the MIG
10I find the applicant has not met his burden in establishing that his accident-related injuries fall outside the definition of a minor injury as set out in s. 3(1) of the Schedule.
11Section 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 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.”
12An 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
13In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
14In submitting that his physical accident-related injuries fall outside the MIG, the applicant relies on a Disability Certificate dated March 12, 2021 and a treatment plan for physiotherapy services dated November 9, 2021. Both documents were prepared by chiropractor Haralabos Grigoropoulos of Gibson Wellness Centre Inc. and describe the applicant’s injuries from the accident as follows:
i. whiplash associated disorder with complaint of neck pain with musculoskeletal signs;
ii. sprain and strain of thoracic spine;
iii. sprain and strain of lumbar spine; and
iv. sprain and strain of other and unspecified parts of shoulder girdle.
15All of the applicant’s physical accident-related injuries described above fit within the definition of a minor injury as set out in s. 3(1) of the Schedule.
16Further, the applicant has produced no medical treating records establishing that he sustained non-MIG related injuries in the accident. The applicant’s submissions make no mention, nor is there any evidence, of a documented, pre-existing injury or condition with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if the applicant remails within the MIG.
17The applicant submits that he unsuccessfully attempted to obtain his former family physician’s records, but he provides no correspondence or other evidence in support of his reported attempts. The applicant also submits that the clinical notes and records he requested from Gibson Wellness Centre Inc. were not provided, but there is no information before me indicating that the applicant followed up on his initial request for these notes and records.
18No explanation is offered by the applicant for failing to comply with the respondent’s multiple requests under s. 33 of the Schedule, seeking medical records and other information relevant to the applicant’s claim for treatment beyond the MIG. Further, the applicant offers no explanation for failing to provide a decoded OHIP Summary, hospital records, family physician or specialist treating records, or a prescription summary, as required by the CCRO.
19In support of his submission that he suffers from psychological accident-related conditions, the applicant relies on a treatment plan proposing a psychological assessment dated June 15, 2021 and a psychological assessment dated July 14, 2021. Both the treatment plan and the psychological assessment were prepared by clinical psychologist Dr. Betty Kershner of Complete Rehab Centre.
20In the psychological assessment, conducted virtually, Dr. Kershner describes the applicant’s complaints, including sadness, decreased appetite, frustration, withdrawal, anger, irritability, decreased memory, poor sleep, flashbacks of the accident and driving anxiety.
21Based on various psycho-diagnostic testing carried out by Dr. Kershner or under her supervision, Dr. Kershner diagnosed the applicant with the following psychiatric conditions as result of the accident: Adjustment Disorder with Mixed Anxiety and Depressed Mood; Specific Phobia, Situational Type (Motor Vehicles); and Somatic Symptom Disorder, with Predominant Pain, Persistent.
22I give little weight to Dr. Kershner’s assessment findings and diagnoses, because:
i. all of the pre- and post-accident history she obtained regarding the applicant and included in the assessment was self-reported by him;
ii. all of the psycho-diagnostic testing carried out by or under Dr. Kershner’s supervision and providing the foundation for her diagnoses was based on self-reporting by the applicant; and
iii. there are no references in the assessment to objective evidence of any kind, including no medical records from pre- and post-accident treating health professionals, to support the applicant’s self-reported information.
23In sum, I find the applicant is not entitled to treatment outside the MIG because he has failed to establish that:
i. he sustained any non-minor physical injuries in the accident;
ii. he suffers from a documented, pre-existing injury or condition from which recovery from any accident-related minor injury will be precluded if treatment is maintained within the MIG; and/or
iii. he suffers from chronic pain with a functional impairment, or a psychological injury, warranting treatment outside the MIG.
No need to address reasonableness/necessity of disputed treatment plans
24Sections 14 and 15 of the Schedule provide that the insurer shall pay medical and rehabilitation 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 and rehabilitation benefits sought in a treatment plan are a reasonable and necessary expense.
25The applicant bears the onus of establishing entitlement to a proposed treatment plan by proving it is reasonable and necessary on a balance of probabilities.
26The two disputed treatment plans here fall outside the MIG framework, whereas I have found the applicant’s injuries fall within the MIG. As the $3,500.00 maximum for medical benefits available under the MIG has been exhausted, I need not determine if the disputed treatment plans are reasonable and necessary.
Applicant is not entitled to a non-earner benefit
27I find the applicant has not satisfied his onus to prove that he is entitled to a non-earner benefit (“NEB”).
28The test for entitlement to a NEB requires the applicant to show that he sustained an impairment as a result of the accident and that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident and does not qualify for an income-replacement benefit. 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, he sustains an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
29“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.” In analyzing whether an applicant suffers from a complete inability to carry on a normal life, the starting point is to compare the applicant’s activities and life circumstances before the accident to their activities and life circumstances after the accident.
30The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of their pre-accident activities to compare how much less they are able to dedicate to the same activities post-accident. This evidence is necessary to show that the applicant is prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.
31The applicant relies on the Disability Certificate and the psychological assessment, both referred to above, to support his claim for a NEB.
32The only information in the Disability Certificate supporting the NEB claim is a statement that the applicant “experiences physical pain that can affect his ability to complete daily tasks.” There is no indication of the type, frequency and time commitments of the applicant’s pre-accident daily tasks or life circumstances. There is no comparison between the applicant’s daily task capabilities and commitments before the accident and the extent to which he engages in any of these tasks post-accident.
33The psychological assessment prepared by Dr. Kershner includes a description of activities the applicant reportedly engaged in pre-accident, all of which he states he has stopped post-accident. These pre-accident activities include soccer, basketball, running, helping with “many chores around the house” and socializing with friends. There is no information in the assessment about the actual frequency and time spent by the applicant on these pre-accident activities. Further, there is no objective evidence included in the assessment to establish that the applicant engaged in these reported pre-accident activities, and if so, how often.
34In support of his NEB claim (and his claim for treatment outside the MIG), the applicant submits that the respondent failed “to provide a complete medical opinion with respect to the issues in dispute.” I do not agree with this submission. An insurer is not obligated to conduct its own examination(s) of the insured. The burden of proof is on the applicant to prove entitlement, and not on the respondent to disprove it.
35Based on the limited information supplied by the applicant, and without any objective evidence of the type, frequency and time commitments of his pre- and post-accident activities and life circumstances, I find that the applicant has failed to meet his evidentiary onus. I find the applicant has not provided sufficient evidence that he suffers from a complete inability to carry on a normal life as a result of the accident for the period in dispute and therefore is not entitled to a NEB for this period.
Award
36The applicant sought an award under s. 10 of Reg. 664. Under s. 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 were unreasonably withheld or delayed by the respondent, the applicant is not entitled to an award.
Interest
37As there are no benefits owing, no interest is payable.
Costs
38The respondent’s request for costs is denied.
39Rule 19 of the Tribunal’s Common Rules of Practice and Procedure permits costs to be awarded if a party to a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
40The threshold for costs is high and they are awarded only in the appropriate circumstances.
41In seeking costs of $2,000.00 from the applicant, the respondent argues that the applicant failed to comply with basic s. 33 requests and to produce documents as required by the CCRO. The respondent further argues that the applicant failed to explain his non-compliance, hand-selected only evidence that appears favourable to his claims and falsely accused the respondent of misconduct regarding production of the adjusters’ log notes.
42The applicant did not deliver a reply to respond to the respondent’s request for costs.
43While I agree with the respondent that the applicant failed to:
i. comply with s. 33 requests or the CCRO;
ii. provide any meaningful explanation for his non-compliance; and
iii. appears to have been mistaken when he suggested the respondent failed to produce adjusters’ log notes as required by the CCRO, the respondent did not point me to any evidence that it was prevented from defending the case before it.
44The applicant’s failures described above undermined his own case. Given the lack of objective supporting documents for his claims, he could not establish that his accident-related injuries entitled him to treatment outside the MIG or that he was entitled to a NEB. I find that the dismissal of the application adequately addresses the applicant’s conduct related to the claims advanced in this hearing.
45Accordingly, I deny the respondent’s request for costs.
ORDER
46The application is dismissed. I find that:
i. the applicant’s injuries are predominately minor and therefore subject to treatment within the MIG limits;
ii. as the MIG limits have been exhausted, the applicant is not entitled to either of the two disputed treatment plans;
iii. the applicant is not entitled to a NEB;
iv. as no benefits were unreasonably withheld or delayed, no award nor interest is payable; and
v. no costs are awarded to the respondent.
Released: October 18, 2024
Teresa Walsh
Adjudicator