Clarke v. Economical Insurance Company, 2024 CanLII 15892

Licence Appeal Tribunal

Citation: Clarke v. Economical Insurance Company, 2024 CanLII 15892

Licence Appeal Tribunal File Number: 22-013030/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:

Horace Clarke

Applicant

and

Economical Insurance Company

Respondent

DECISION

PANEL:

Kate Grieves Tami Cogan

APPEARANCES:

For the Applicant:

Horace Clarke, Applicant Olubunmi Akinsanmi, Counsel

For the Respondent:

Kamal Sidhu, Claims Representative

Kevin So, Counsel

HEARD: by Videoconference

January 29, 30, 31, 2024

OVERVIEW

1Horace Clarke (“the Applicant”) was involved in an automobile accident on May 13, 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the Applicant entitled to a non-earner benefit of $185.00 per week from June 13, 2021, to June 13, 2023?

iii. Is the Applicant entitled to a medical benefit in the amount of $204.00 for medical services, proposed by Mississauga Active Physiotherapy Services, in a treatment plan (“plan”) submitted on August 17, 2021?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,924.60 for medical services, proposed by Mississauga Active Physiotherapy Services, in a plan submitted on September 28, 2021?

v. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by Mississauga Active Physiotherapy Services, in a plan submitted on December 6, 2021?

vi. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by Princeton Hills Medical, in a plan submitted on November 20, 2022?

vii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant sustained a predominantly minor injury as a result of the accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

4The Applicant is not entitled to non-earner benefits.

5The Applicant is not entitled to the treatment and assessment plans because the $3,500.00 funding limits for treatment within the MIG have been exhausted.

6No interest is payable, and the respondent is not liable to pay an award under s. 10 of Regulation 664.

7The application is dismissed.

ANALYSIS

8The MIG establishes a treatment 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.” Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

9The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition or that he has a pre-existing health condition that would preclude him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

10The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the Applicant’s entitlement to them is contingent on a finding that his injuries are not included in the minor injury definition. If so, the Applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.

Issue 1: The Minor Injury Guideline (“MIG”)

11We find the Applicant sustained predominantly minor injuries as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

12The Applicant submits that his injuries fall outside the definition of a minor injury, as he suffers from; psychological impairments; chronic pain with functional impairments; and, had a pre-existing condition that prevents maximum recovery from injuries sustained in the accident if treatment is subject to the MIG limit.

13The Respondent submits that he has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG, or that he will not achieve maximum recovery from injuries caused by the accident due to a pre-existing condition. We agree with the Respondent.

Psychological Impairment

14We find the Applicant has not suffered a psychological impairment as a result of the accident and is subject to the MIG limit.

15Psychological impairments are not included in the minor injury definition. A finding that the Applicant sustained psychological impairment as a result of the accident would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

16The Applicant submits that since the accident he has developed driving anxiety requiring treatment. He testified that he is unable to drive on the highway. Driving above 40 km/hr results in dizziness and his head hurting. Furthermore, the Applicant relies on the testimony of Dr. Steiner, psychologist, and his report dated April 28, 2023. The applicant submits that we should place more weight on the s. 25 psychological assessment over the insurer’s examination because they administered more psychological testing. The s. 25 and s. 44 assessors used different assessment tools. We cannot presume that the s. 25 assessor is more reliable simply based on the volume of assessment tools.

17There was little compelling evidence demonstrating that the Applicant sustained psychological impairment as a result of the subject accident. Dr. Buckridan, the Applicant’s family physician, testified that while the Applicant did complain of anxiety. He believed the Applicant’s anxiety would resolve on its own over time and he did not refer the Applicant for further investigation or treatment and did not prescribe any medication.

18We place little weight on the report of Dr. Steiner. The bulk of the assessment was conducted by Natalia Zhukova (a psychometrist) under the supervision of Dr. Steiner. Ms. Zhukova is not qualified to make diagnoses. Dr. Steiner testified that it was he who did the videoconference introductory session that lasted approximately 15 minutes. The assessment tests were mailed to the Applicant who completed them in advance without observation and returned the completed tests by mail. Ms. Zhukova interviewed and assessed the Applicant. Ms. Zhukova drafted the report for Dr. Steiner’s review and approval. We found the report and Dr. Steiner’s evidence unpersuasive as he did not interview or assess the Applicant. The opinion in the report relies on Ms. Zhukova’s observations and interpretations to formulate an opinion. Ms. Zhukova is not qualified to make such a diagnosis. Accordingly, we give the report little weight.

19We prefer the insurer’s examination report of Dr. Rubenstein dated April 26, 2022, because Dr. Rubenstein, psychologist, completed the assessment of the Applicant in person. In his report, Dr. Rubenstein opines that the Applicant does not have a psychological impairment as a result of the accident. This also is consistent with Dr. Buckridan’s opinion.

20We are persuaded by the evidence of Dr. Rubenstein and Dr. Buckridan, who both agree the Applicant does not have a psychological impairment because of the accident. We note that despite some driving anxiety the Applicant continues to drive his car. We find that there is insufficient evidence to conclude that the Applicant’s anxiety rises to the level of a psychological impairment that would warrant removal from the MIG.

Chronic Pain

21We find that the Applicant has not demonstrated that he suffers from chronic pain with functional limitations resulting from injuries related to the accident.

22The Applicant submits that he was diagnosed with chronic pain by Dr. Buckridan after the accident and was referred to a pain clinic and participated in treatment. However, Dr. Buckridan qualified his diagnosis as pain that persists beyond three months.

23Chronic pain with functional limitations is not included in the minor injury definition and a finding that the Applicant sustained chronic pain with functional limitations as a result of the accident would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG.

24The Applicant had been diagnosed with end-stage osteoarthritis before the accident, for which he was prescribed medication. Dr. Buckridan testified that it was impossible to tell whether it was the Applicant’s accident-related injuries or end-stage osteoarthritis that was the cause of his pain. The Applicant's only prescription medication for pain was Tylenol, which he was prescribed both pre-and post-accident for his osteoarthritis. A chronic pain assessment conducted at Rivlin Medical Group on July 18, 2022, recommended that the Applicant have blood work for rheumatological causes of his pain, which suggests the doctor did not think the accident was the cause. There is little medical evidence to support that the Applicant has ongoing injuries related to the accident, but rather that his pain and limitations are a direct result of the end-stage osteoarthritis.

25This determination is consistent with the report and testimony of Dr. Stewart, family medicine specialist. He assessed the Applicant on March 25, 2022, and noted that the Applicant’s ranges of motion were consistent with severe to end stage osteoarthritis, consistent with the diagnostic imaging conducted at Trillium Health Partners on May 14, 2021. Dr. Stewart testified that most soft tissue injuries were expected to resolve within six to eight weeks, but given his arthritis and age, expected a full recovery within 12 weeks. Based on his assessment, considering the mechanism of the accident, the severe end-stage osteoarthritis, the family doctor records, the hospital diagnosis of whiplash, Dr. Stewart testified that with a level of medical certainty, the Applicant’s pre-existing conditions were the cause of his impairments and not the injuries from the motor vehicle accident.

26We further agree with the respondent that the Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

27We have not heard evidence of the Applicant being prescribed, or taking, any medication for his pain other than acetaminophen, which he also took pre-accident for his osteoarthritis. We agree that for select personal care tasks such as buttoning his shirt, or tying a tie the Applicant receives occasional assistance from family members, but we have not heard evidence that suggested a lack of independence for all other personal care. For heavier chores around the house, his family members provide assistance, however, that does not reach a level of excessive dependence as he continues to participate. The Applicant and his daughter testified that even before the accident these activities were shared among family members. The Applicant testified that he continues with most of his pre-accident activities, and we do not find this demonstrates avoidance or withdrawal. We heard evidence from Dr. Buckridan that the Applicant reported driving anxiety, and his daughter testified that the Applicant has been sad, however, however these were not to a degree that required counselling or medication. If there has been a loss of function compared to before the accident, the Applicant has not proven that it has been caused by accident-related injuries. The Applicant has not met his burden of proof that he should be removed from the MIG for chronic pain with functional limitations, nor has he demonstrated that he meets the criteria for chronic pain syndrome outlined by the AMA Guides.

Pre-existing Condition

28We find that the Applicant has failed to prove, on a balance of probabilities, that he had a pre-existing condition that would prevent achieving maximal recovery from the accident-related minor injuries, if treated within the MIG.

29In order to be removed from the MIG limits based on a pre-existing condition, pursuant to s. 18(2) of the Schedule, the Applicant must provide compelling evidence, documented before the accident, from his health practitioner that he had a pre-existing medical condition that will prevent his achieving maximal recovery from his minor injuries if subject to the MIG limit.

30We find that although the Applicant may have had pre-existing conditions, there is little evidence to support that any pre-existing condition prevented the Applicant from achieving maximum medical recovery from his accident-related injuries. Dr. Stewart testified that the accident may have caused some exacerbation of his injuries, but it would not prevent him from making a full recovery. The Applicant has not provided a competing opinion to that of Dr. Stewart. Dr. Buckridan testified but did not provide an opinion as to whether the pre-existing condition(s) were exacerbated by the accident, or if it would prevent full recovery.

31The Applicant testified that he had bilateral hip and knee replacements many years prior but made a full recovery and denied any problem with his legs. During his testimony, despite medical records to the contrary, he denied having arthritis in his ankles, low back, upper back, neck, and hands. He denied taking any medication prior to the accident, apart from medication for an unrelated condition. His daughter testified that she was unaware of her father having arthritis, and that he has recovered from his surgeries. The Applicant has not met his burden to prove that he had a pre-existing condition that prevents him from achieving maximal medical recovery within the MIG.

Issue 2: Non-Earner Benefit (“NEB”)

32We find that the Applicant has not established that he is entitled to a non-earner benefit.

33Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

34The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”). To summarize paragraph 50 of the decision, the following are factors to consider when analyzing the test for an NEB:

i. A comparison between the Applicant’s activities and life circumstances before and after the accident.

ii. Assessing the Applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

iii. In proving “substantially all” requires looking at all the Applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the Applicant.

iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

vi. If pain is a primary factor that prevents the Applicant from engaging in their pre-accident activities, the question is not whether the Applicant can physically do the acts, but are they practically prevented from engaging in those activities?

35The Applicant claims entitlement to an NEB on the basis that he is unable to engage in his pre-accident activities. However, the evidence does not establish that he suffers from a complete inability to carry on a normal life.

36The Applicant testified that prior to the accident his daily routine included walks for 10-20 minutes on the trail behind his house. He exercised each day and attended a social club once each week for five hours and that he drove there; he shared the household chores with his wife and daughter; he did the gardening and yard work; he was independent with his personal care; he would drive on the highway; and took trips to Jamaica to see family, and day trips on the bus.

37A reduced ability to complete pre-accident tasks is insufficient to meet the test for NEBs. The Applicant’s self-reported limitations identify a reduced ability to complete some of his pre-accident tasks. Yet, the test for entitlement to NEBs is stricter and requires the Applicant to demonstrate a complete inability to continuously engage in substantially all of his pre-accident activities. We heard that he still takes walks and exercises, he still drives and attends the social club. He submits that for one year post accident he was unable to attend the social club. We note that this time period spans the COVID pandemic when social restrictions were in place. We did not hear evidence as to whether it was the Applicant’s inability to attend or if other barriers were present. He continues to share in chores, albeit to a lesser degree and receives assistance from his children. We note that the Applicant was unable to travel to Jamaica in 2021 due to the COVID Pandemic, however the Applicant also testified that he had not traveled to Jamaica in many years, suggesting this was not a regular pre-accident activity. He does not take day trips by bus any longer, but we did not hear how often he participated in this activity before the accident. The Applicant submitted his limitations are caused by pain; however, we did not hear evidence that the pain is caused by injuries sustained in the accident, and we are unable to determine that these limitations are as a result of his accident-related injuries. Although he is unable to engage in all of this pre-accident activities, we find that he is capable of engaging in most of his pre-accident activities.

38The Applicant has not demonstrated a complete inability to carry on a normal life as a result of the accident. We find the Applicant has not met his burden of proof and is not entitled to a non-earner benefit.

Issues 3, 4, 5 and 6: Treatment and Assessment Plans

39The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the Applicant’s entitlement to them is contingent on a finding that his injuries are not included in the minor injury definition.

40We have found that the Applicant’s injuries are predominately minor, and treatment is subject to the MIG limits. For this reason, the Applicant is not entitled to the treatment and assessment plans in dispute.

Interest

41As there are no overdue payment of benefits, the Applicant is not entitled to interest pursuant to section 51 of the Schedule.

CONCLUSION AND ORDER

42We order the following:

i. The Applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The Applicant is not entitled to non-earner benefits.

iii. The Applicant is not entitled to the treatment and assessment plans in dispute, as the MIG limit has been exhausted.

iv. The Applicant is not entitled to interest.

v. The application is dismissed.