John v. Intact Insurance, 2024 CanLII 126324

Citation: John v. Intact Insurance, 2024 ONLAT 23-000166/AABS

Licence Appeal Tribunal File Number: 23-000166/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:

Simeon John

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Joseph Sidiropoulos, Counsel

For the Respondent: Lee Wiseman, Counsel

HEARD: By way of written submissions

OVERVIEW

1Simeon John, the applicant, was involved in an automobile accident on May 20, 2020, 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, Intact Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

Lack of compliance with the Case Conference Report and Order - Applicant

2The respondent requests that the records of Revive Health Centres (“Revive”) and the applicant’s WSIB file be excluded from consideration. It advises that the applicant did not comply with the Tribunal’s production order in the case conference report and order (“CCRO”) dated August 14, 2023. The CCRO specified that the agreed upon documents were due:

i. 45 days after the case conference for the initial exchange;

ii. 75 days for any items not previously disclosed upon which they will rely; and

iii. 110 days for any additional items responsive to the items already produced.

3The respondent provides email correspondence that evidences how the applicant did not provide either the clinical notes and records (“CNRs”) of Revive or the applicant’s WSIB file until March 25, 2024. Thus, the documentation was produced long after the deadlines for document exchange set out in the CCRO.

4The respondent offers further documentation in the form of cover letters from both Revive and WSIB to show how the applicant was in possession of these records since June of 2022.

5The applicant did not file any reply submissions in answer, yet relied on the documentation in question for this hearing.

6It is clear that the applicant did not comply with the Tribunal’s orders. He provides no explanation for this lack of compliance. The delay in providing the documents to the respondent was significant considering the documents were available for over a year before the case conference. Further, not only were they provided many months late, but they were also sent only days before the Tribunal’s deadlines for hearing submissions – March 26, 2024 for the applicant and April 9, 2024 for the respondent.

7The CCRO established the Tribunal’s expectations for the exchange of documents. Beyond the CCRO, the Licence Appeal Tribunal Rules 2023 (“the Rules”) describe in Rule 9.3 how if a party fails to comply with the rules about document disclosure and production, that party may not rely on the document or thing as evidence without the permission of the Tribunal.

8The respondent opposes the inclusion of the disputed documentation on grounds it had little time to review and respond to the documents in question.

9On review of the criteria in Rule 9.3, I find that the applicant disregarded the Tribunal’s orders and its process, provided no reasons for a delay of almost six months in sharing documents it had in its possession, and left the respondent with little time to review and respond to the documentation in preparation for the hearing.

10Consequently, the CNRs from Revive and the applicant’s WSIB file will not be considered. The Rules and the Tribunal’s orders exist to ensure a fair resolution of disputes. They must be respected and followed by both parties.

ISSUES

11The issues to be decided in the hearing are:

1. 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?

2. Is the applicant entitled to chiropractic services proposed by Revive as follows:

a) $1,289.02 in a treatment plan/OCF-18 (“plan”) dated November 13, 2020 and denied December 10, 2020;

b) $1,289.02 in a plan dated February 13, 2021 and denied March 4, 2021; and

c) $1,368.25 in a plan dated September 4, 2021 and denied September 13, 2021?

3. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Network Health Assessment and Rehabilitation Centres Inc., in a plan dated June 25, 2021 and denied July 20, 2021?

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

12The respondent advised in submissions that as of April 11, 2024, it had paid $3,041.33 to the applicant in medical/rehabilitation benefits.

RESULT

13I find that:

i. The applicant remains within the MIG.

ii. The applicant is entitled to the benefits set out in the disputed plans, if already incurred, up to the remaining amount in the MIG limits as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.

ANALYSIS

Does the Minor Injury Guideline apply?

14I find that the MIG applies. Accordingly, the applicant remains subject to its $3,500.00 treatment limit.

15Section 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.”

16An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside the MIG or, under s. 18(2), that before the accident, they have a documented pre-existing injury or condition. There must also be compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

17The applicant submits that his injuries from the accident should be treated outside the MIG due to physical impairments, pre-existing injuries, chronic pain, and psychological impairment. He describes his initial injuries as pain in the head and neck, with driver anxiety and phonophobia, highlighting that his family doctor (“GP”) assessed a concussion. Also, he argues that his injuries from the accident were exacerbated by pre-existing psychological trauma and back pain that became chronic. He relies on the records of his family doctor and Trillium Hospital.

18The respondent submits that the applicant was in a minor accident and any resulting injuries are also minor. It argues that the applicant sustained a strain/sprain of the cervical and lumbar spine, and appropriate treatment within the MIG limits has been funded. The respondent also argues that there is no evidence of a pre-existing medical condition that would impact his recovery, and no diagnosis of psychological impairment or chronic pain that would justify removal from the MIG. Further, the respondent submits that the applicant’s claim of a diagnosed concussion is not credible. It relies on the reports of its s. 44 assessors, Dr. Kruger (MD) and psychologist Dr. Ratti.

Physical Impairment – Section 18(1)

19The applicant visited his general physician (“GP”) Dr. Alexander two days after the accident. He reported that he lost consciousness briefly after the impact and had headaches, dizziness, difficulty focusing, neck and upper back pain, and a feeling of numbness on the upper left side of his head. Dr. Alexander recorded the applicant’s symptoms as headache, difficulty focusing, and confusion, although he was both alert and without pain.

20Dr. Alexander attributed the applicant’s symptoms to a post-accident concussion. He briefed the applicant about the signs and symptoms of concussion and advised him to return to the clinic in one week if the headaches or confusion continued. He recommended rehabilitation for any physical pain, over-the-counter medication for headaches, and ordered imaging of the spine and skull.

21The applicant did not make a follow-up appointment to address any continuing symptoms. Nor was I directed to the results of the imaging, or any evidence that the applicant sought further diagnosis of a concussion or underwent treatment for post-concussive symptoms. As a result, the assessment of a post-accident concussion by Dr. Alexander is not a compelling one.

22I agree with the respondent that there is insufficient evidence to conclude that the applicant suffered a concussion from the accident. Nor is there evidence of any other physical injury that would fall outside the definition of s. 3 of the Schedule.

23While the applicant experienced neck and back pain and reported such at his s. 44 assessment with Dr. Kruger, these injuries were determined to be soft tissue in nature per the report dated May 13, 2021. Dr. Kruger diagnosed the applicant with strain/sprain of the spine, while noting that all imaging, range of motion and strength testing were normal. The assessment was thorough as it was conducted in person and included a document review of the applicant’s medical history.

24The evidence indicates that the applicant’s post-accident physical impairments were within the scope of a minor injury as defined by the Schedule. While his GP initially assessed a concussion, the medical records do not demonstrate a formal diagnosis and treatment of such.

25As a result, section 18(1) does not apply as a basis for removing the applicant from the MIG.

Pre-existing Medical Condition or Injury – Section 18(2)

26The applicant works in the construction trade and was treated for some pre-accident injuries and back pain at Trillium Hospital. He points to visits in 2018 for an elbow injury and ankle sprain/strain, and visits in 2012 and 2016 to treat back pain.

27The respondent argues that the applicant did not visit his GP in either 2019 or 2020, the years just prior to the accident, and there is no medical evidence to suggest that any previous injuries would prevent his maximal medical recovery (“MMR”) under the MIG. Dr. Kruger, who assessed the applicant on April 29, 2021, opined that from a musculoskeletal perspective there was no evidence of any past or present medical condition that would prevent MMR within the provisions of the MIG. Further, the assessor noted that there was also no evidence that any pre-existing back issues were exacerbated by the accident.

28Thus, section 18(2) does not apply as a basis for removing the applicant from the MIG.

Chronic pain

29The applicant makes no specific argument with regard to chronic pain as a justification for treatment outside the MIG. While the applicant pursued ongoing physical therapy after the accident, as evidenced by the proposed treatment plans from Revive and some reports of ongoing back pain to his family doctor, I am not persuaded that the symptoms are of a severity that would justify treatment outside the MIG.

30Further, the respondent argues that the applicant’s symptoms do not meet the criteria identified by the American Medical Association (“AMA”) in its AMA Guides 6th ed. (“the Guides”), a resource the Tribunal has recognized as a useful framework for understanding an individual’s functional capacity. Further, the respondent also points to the test results of Dr. Kruger during the s. 44 assessment, where the applicant’s neck and cervical pain were identified as a 4/10, with some intermittent back pain.

31So, while the applicant’s claims of post-accident pain are valid to some degree, they do not rise to a level that would justify removal from the MIG. There is no evidence of a formal diagnosis of chronic pain, or a referral to a chronic pain specialist for specific treatment.

Psychological impairment

32The applicant refers to a hospital-based psychological consult in 2010 after a work-related incident that led to an episode of personal sadness and distress. He argues that this is evidence he is more susceptible to traumatic events such as the motor vehicle accident. While I appreciate the impact of the 2010 event on the applicant, the consulting psychologist Dr. Rudky found that he was medically well, with no evidence of depression or anxiety. She concluded that no further psychiatric treatment was necessary as a result of the incident.

33With regard to the subject accident in 2020, the respondent highlights the findings of Dr. Ratti, its s. 44 psychologist. Dr. Ratti found that the applicant did not meet the criteria for any mental health diagnosis as a result of the accident. She noted that there was some sleep disturbance and a bit of anxiety around driving, but the test results indicated that any symptoms of depression or anxiety were in the minimal range. As a result, no treatment was recommended.

34Thus, while the applicant’s claims of psychological impairment arise from the symptoms he experienced after the accident, they are not of a level that would lead to a mental health diagnosis. Accordingly, treatment outside the MIG is not warranted.

Conclusion

35The applicant has not established that his injuries from the accident merit treatment outside the MIG on account of physical impairment, pre-existing injury, chronic pain, or psychological impairment.

36Consequently, the applicant remains subject to the $3,500.00 treatment limit for minor injuries under the MIG.

The Treatment Plans

37As noted above in paragraph 12, there is $458.67 remaining in the MIG treatment limits.

38The applicant remains subject to the $3,500 treatment limit. While a small amount of funding remains, there is not enough to fund any of the treatment plans. As a result, an analysis of whether the disputed treatment plans are reasonable and necessary is not required.

39Still, pursuant to s. 40(8) of the Schedule, the applicant is entitled to the remaining $458.67 toward any benefits incurred under the MIG, to date. Any such benefits are deemed reasonable and necessary.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule, including any benefits owed pursuant to s. 40(8) as outlined above.

ORDER

41For the reasons outlined above, I order that:

i. The Minor Injury Guideline applies.

ii. The applicant is not entitled to the disputed treatment plans, except for any benefits already incurred up to the remaining amount of the MIG limits to the date of the decision, in accordance with s. 40(8) of the Schedule. Interest applies to such benefits owed in accordance with s. 51 of the Schedule.