Callis v. Definity Insurance Company

Citation: Callis v. Definity Insurance Company, 2024 CanLII 106212 Licence Appeal Tribunal File Number: 22-004098/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:

Tommy Callis, Applicant

and

Definity Insurance Company, Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Christina Trotta, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tommy Callis (the "applicant") was involved in an automobile accident on November 4, 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 Economical Insurance Company (the "respondent") 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?

ii. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $400.00 per week from November 11, 2021, to date and ongoing?

iii. Is the applicant entitled to $3,145.25 for physiotherapy services, proposed by Scarborough South Physio and Rehab in a treatment plan ("OCF-18") submitted November 18, 2021?

iv. Is the applicant entitled to $3,540.75 for chiropractic services, proposed by Scarborough South Physio and Rehab in an OCF-18 submitted March 13, 2022?

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

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18s or an IRB. No interest is payable. The application is dismissed.

PROCEDURAL ISSUE

4I order the respondent's submissions be struck past page 10.

5The applicant submits in his reply that the respondent's written submissions contravene the case conference report and order ("CCRO") for this matter. The applicant specifies that the submissions were filed late and exceed the ordered page limit. The applicant argues there is no remedy to eliminate or substantially mitigate the prejudice he will suffer if the respondent's submissions are fully considered because the applicant has already filed his initial written submissions. The applicant requests that the respondent's written submissions be deemed inadmissible in their entirety, or alternately, that the Tribunal not consider the additional pages which exceed the limit.

6I agree that the respondent's submissions do not comply with the Tribunal's orders. The CCRO was sent to the parties on February 21, 2023, and noted that the respondent's submissions were limited to 10 pages and due 14 calendar days prior to the scheduled hearing date. The respondent did not file or serve its submissions until October 16, 2023, which is three calendar days late. Further, its submissions were substantively 14 pages in length.

7I find it would be procedurally unfair to allow the respondent to rely on all of its submissions. While I accept the respondent's submissions were late owing to technical difficulties, I disagree this prejudiced the applicant to such an extent that striking all the respondent's submissions is a proportional remedy. After all, the applicant was able to reply by his due date and did not file a motion to request extra time.

8However, I agree the applicant's alternate request to strike the respondent's submissions past page 10 is appropriate and reasonable. The CCRO indicates the hearing adjudicator may choose not to consider submissions which exceed the page limits. I choose to do so here because I find the respondent offered no explanation as to why its submissions exceeded the page limit by 40 per cent. Further, the parties agreed to the ordered page length at the case conference, and the respondent did not seek an order for more pages prior to making submissions, nor did it attempt to remedy its non-compliance by filing a motion with its submissions to request additional pages. For practical purposes, this means I considered the entirety of the respondent's arguments up to and including its submissions that pertain to: "no evidence of a psychological impairment as a result of the accident."

ANALYSIS

Applicability of the MIG

9I find the applicant has failed to demonstrate he should be removed from the MIG.

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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." The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), where a health practitioner has determined and documented compelling medical evidence of a pre-existing medical condition that prevents maximal recovery of his accident-related injuries if he is 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.

11In this case, the applicant seeks removal from the MIG because he says he has pre-existing medical conditions per section 18(2), and because he claims he sustained an accident-related psychological impairment.

Pre-existing medical condition

12I find the applicant has not established his pre-existing medical conditions merit removal from the MIG per section 18(2) of the Schedule.

13The applicant submits his pre-existing medical conditions prevent him from achieving maximal recovery under the MIG. He says his family physician, Dr. Hagop Boyrazian, documented pre-existing injuries that include back pain, bilateral leg soreness, and anxiety. The applicant claims these injuries have been exacerbated by the accident and says the worsening of his neck and back pain is specifically acknowledged in the April 2022 section 44 Insurer's Examination ("IE") by Dr. Howard Platnick (physician). The applicant maintains he has not been able to return to his pre-accident condition and functionality despite incurring $4,052.06 in treatment that is above and beyond the MIG limit. The applicant adds he requires yet more treatment but is financially unable to incur the disputed treatment plans.

14The respondent did not make submissions on the applicant's pre-existing medical conditions.

15I accept that prior to the accident, Dr. Boyrazian determined and provided compelling evidence of the applicant's pre-existing medical conditions. The applicant points to Dr. Boyrazian's pre-accident clinical notes and records from January 2020 to October 2021 to show intermittent soreness in both legs; persistent aches in his back, knees, shoulders, and neck; and depression and anxiety.

16However, the applicant must also prove that a health practitioner has determined these medical conditions will prevent maximal recovery from his accident-related injuries if the MIG is applied. I find the applicant falls short here.

17While I agree Dr. Boyrazian and Dr. Sogoal Kachooie (physiatrist) recommended physical treatment for the applicant's accident-related injuries that exceeds the MIG limit, the applicant failed to direct me to a medical opinion expressed by either physician that determines the applicant's pre-existing medical conditions are preventing maximal recovery.

18I accept the applicant has shown me evidence of pre-existing and ongoing medical conditions that may have worsened from the time of the accident to September 2023 as reported in the records of Dr. Boyrazian, the Scarborough Health Network (inclusive of the July 2022 MRI scan), Dr. Kachooie, and Dr. Sherif Tewfik (psychiatrist). However, the applicant did not point to a medical opinion in these records or otherwise that meets the latter part of the test set out at section 18(2) of the Schedule. Similarly, I was not persuaded by the evidence of Dr. Platnick as referenced by the applicant because Dr. Platnick acknowledges only a "temporary" exacerbation of the applicant's neck and back pain following the accident and does not offer an opinion consistent with section 18(2) of the Schedule.

19Taken together, I am not persuaded this evidence shows the applicant should be removed from the MIG because of his pre-existing medical conditions.

Psychological impairment

20I find the applicant has not established a psychological impairment that warrants removal from the MIG.

21Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs "minor injuries", and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show he sustained a psychological impairment because of the accident.

22The applicant submits that the psychological diagnoses—major depressive disorder and generalized anxiety disorder—offered by Dr. Boyrazian and Dr. Tewfik do not constitute minor injuries and therefore fall outside the MIG. The applicant says his anxiety has been exacerbated by the accident and that he continues to suffer from both anxiety and depression. The applicant relies on the September 2023 report of Dr. Tewfik and the clinical notes and records of Dr. Boyrazian.

23The respondent argues that the applicant's ongoing self-reports of psychological symptoms are not enough to remove him from the MIG because he provided inconsistent accounts of his medical history and is therefore not credible. The respondent says Dr. Boyrazian did not diagnose any psychological disorders and failed to provide any analysis of the applicant's psychological condition, prescribe medication to treat his symptomology, recommend counselling, or make a referral to a mental health specialist until more than a year after the accident. The respondent goes on to explain that the applicant's reported level of function is inconsistent with a psychological impairment because the evidence shows he was active in the community, able to socialize, and was self-motivated. The respondent relies on the July 2023 report of Dr. Justine Giddens (psychiatrist).

24The applicant failed to pinpoint much of the psychological evidence he referred to in his submissions, and this significantly hindered his case. The CCRO indicates that submissions shall make specific reference to the evidence and law by tab and page number, and that the hearing adjudicator may choose not to review evidence not so referenced. The applicant's references were missing page numbers and I decline to consider his evidence accordingly. For example, the applicant recounts that:

i. Dr. Boyrazian assessed his psychological condition as showing signs of anxiety and depression with significant insomnia and fatigue;

ii. Dr. Boyrazian's records from November 16, 2021, to May 6, 2023, document continuous and ongoing complaints of generalized fatigue, poor sleep, and lack of concentration; and

iii. Dr. Boyrazian referred him to a psychiatrist.

The applicant referenced this evidence by broadly directing me to four tabs in his brief and provided no page numbers that pinpointed this evidence. For context, tabs 4 to 7 as referenced by the applicant constitute 107 pages of evidence and do not appear to include any of Dr. Boyrazian's records prior to May 2022.

25I recognize the applicant's reply more specifically cited this evidence. He notes complaints to Dr. Boyrazian that relate to his psychological condition on November 16, 2021, and on April 7, 2022. He affirms that Dr. Boyrazian documented the applicant's post-traumatic stress, anxiety, and depression on April 5, 2022, and that Dr. Boyrazian recommended a psychological evaluation on December 1, 2021 and April 5, 2022. However, the applicant provides no page numbers in his reply that pinpoint this evidence in tabs 1 and 3, which total 173 pages of his evidence brief.

26Given the lack of page numbers to pinpoint these references efficiently and accurately in a relatively large volume of evidence, I decline to consider these facts in my analysis.

27I did, however, consider the report of Dr. Tewfik as referenced in the applicant's submissions and reply as it forms its own tab and is only two pages. While I accept Dr. Tewfik offered diagnoses that included major depressive disorder and generalized anxiety disorder, I was not persuaded that the applicant is impaired by the symptomology associated with these disorders. Dr. Tewfik documents the applicant's reports of feeling down all the time, very low energy, very poor motivation, frequent forgetfulness, poor ability to focus on tasks, and recurrent negative thoughts of stress and worries. Dr. Tewfik also notes the applicant's reports of anxiety attacks characterized by feeling shaky, increased heart rate, shortness of breath and being lightheaded. However, I was not pointed to contemporaneous evidence in the applicant's medical history that corroborates these symptoms, or that provides persuasive examples of how they affect the applicant's functioning. In my view, given that almost two years elapsed between the accident and Dr. Tewfik's examination, the applicant would need to present evidence of psychological impairment during the intervening period to persuasively argue he should be removed from the MIG. The applicant failed to do so, and I therefore disagree that he has established removal from the MIG is warranted by psychological impairment.

The applicant's entitlement to an IRB

Within 104 weeks after the accident (up to November 4, 2023)

28I find the applicant has failed to demonstrate he is entitled to an IRB within 104 weeks after the accident. For context, the applicant is seeking an IRB from November 11, 2021, onwards. The written hearing was scheduled for October 27, 2023, and the parties have provided submissions that apply only to the pre-104-week test. I have therefore considered the applicant's IRB eligibility as it pertains only to the pre-104-week period.

29Section 5(1) of the Schedule lays out the eligibility criteria for an IRB within 104 weeks of the accident, which is a three-part test. In this case, the applicant must first show he was employed at least 26 weeks during the 52 weeks before the accident, or that he was receiving employment insurance (EI) benefits under the Employment Insurance Act (Canada) at the time of the accident; secondly, that he suffered a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident and within 104 weeks after the accident; and lastly, that his substantial inability is a result of the accident.

30The applicant submits that his accident-related injuries and impairments render him substantially unable to perform the essential tasks of his pre-accident employment. He points to the disability certificate ("OCF-3") completed by Dr. Boyrazian in January 2022, which indicates the applicant meets the pre-104-week IRB test. The applicant says he was working as a security guard on movie sets at the time of the accident, and that the essential working tasks of his job were physically demanding because he was required to lift 50-pound gas containers and push large items onto lifts and into trucks when packing up movie sets. The applicant maintains that he twice attempted a return to work after the accident but was unable to sustain this employment because of his injuries.

31The respondent argues that the applicant lacks credibility and that his self-reports should be interpreted with caution. More specifically, the respondent says the applicant has been entirely untruthful regarding his return to work. The respondent points to inconsistencies in how the applicant reported his medical history to assessors, as well as instances of "exaggerations" and contradictory statements (i.e., that he did not return to work after the accident). The respondent also references evidence of additional post-accident employment the applicant did not speak to in his submissions.

32I accept that the applicant spent most of his employed time working security details prior to the accident. While the respondent pointed to evidence that indicates the applicant was also delivering medical and dental supplies before the accident, there is only one employer's confirmation form ("OCF-2") in evidence, which was completed on November 22, 2021, and indicates the applicant was employed as "watchman" (i.e., a security role) up to the time of the accident.

33I diminished the weight I afforded the applicant's submissions about his essential job duties because they are inconsistent with the OCF-2, which describes these duties only as "patrol and monitor" with no mention of any physically demanding work that includes lifting and pushing large and heavy objects. Even if I were to agree that the applicant's job duties involved the physically demanding tasks he conveyed in his submissions, I would not find him substantially unable to perform them. The functional abilities assessment completed by Dr. Philip Dimakis (chiropractor) on February 22, 2022, does not support the applicant's disability as it pertains to physically demanding work because it demonstrated he was able to lift and carry up to 100 pounds as well as walk, climb stairs, kneel, stoop, sit, and stand on a constant basis. In my view, Dr. Dimakis' assessment would be a more persuasive indicator of the applicant's ability to perform his essential employment duties than the OCF-3 completed by Dr. Boyrazian in January 2022 because I was not pointed to the medical evidence that Dr. Boyrazian relied on to inform his medical opinion. In any event, Dr. Boyrazian indicated that the duration of the applicant's disability arising from these injuries should last up to 12 weeks, and the evidence shows the applicant had returned to part-time work by April 2022 before resuming his security job—where he worked a weekly average of more than 50 hours at 4 to 5 days per week—a couple of months thereafter.

34Further, I disagree that the applicant's continued employment after the accident was merely an attempt to return to work that he was unable to sustain owing to his accident-related injuries. The applicant's post-accident work experience was more substantial than what he conveyed in his submissions. While I accept the applicant's claim that he returned to work for two periods–once in June and July of 2022 and again from October to December that same year—I find the respondent's claim that the applicant later started work in casino security to be a persuasive factor that hampers his IRB claim. In March 2023, the applicant reported to Dr. Victor Lao (physician) that he had started a new security job at a casino, and confirmed a couple months later, on May 9, 2023, that he was continuing to work full-time shifts. While no evidence of the essential works tasks for this casino security role were produced, I find it reasonable to construe, on balance, that these tasks were similar to those performed in his pre-accident security role, in that he would, in all likelihood, be patrolling and monitoring the casino property. I attribute the gaps between the applicant's various post-accident engagements as a security guard to the seasonal nature of his work as indicated on the OCF-2.

35Taken together, I find this evidence does not support the applicant's claim that he suffered a substantial inability to perform the essential tasks of the employment in which he spent the most time during the 52 weeks before the accident and within 104 weeks after the accident. I therefore disagree that the applicant is entitled to an IRB during the relevant period.

The disputed OCF-18s

36Sections 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. The applicant bears the onus of proving entitlement to the proposed treatment by showing the OCF-18s at issue are reasonable and necessary on a balance of probabilities.

37As I have determined the applicant remains in the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

Interest

38Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. No interest is payable because there are no overdue benefits in this case.

ORDER

39The applicant remains in the MIG and is not entitled to the disputed OCF-18s or an IRB. No interest is payable. The application is dismissed.