Citation: Saccoccia v. Economical Insurance Company, 2024 ONLAT 21-010260/AABS

Licence Appeal Tribunal File Number: 21-010260/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:

Fulvia Saccoccia

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Jane Conte, Counsel

For the Respondent:

Veronica Gorrell, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Fulvia Saccoccia (the “applicant”) was involved in an automobile accident on December 19, 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 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 (“MIG”)?

ii. Is the applicant entitled to $1,596.00 for physiotherapy, proposed by Med Rehab Group Inc., in a treatment plan/OCF-18 submitted on December 1, 2018, and denied on December 7, 2018?

iii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from November 13, 2018, to December 19, 2019?

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

RESULT

3I find that:

i. The applicant is removed from the MIG as she sustained a fracture in her left wrist.

ii. The applicant is entitled to the OCF-18 for physiotherapy, submitted on December 1, 2018, plus interest.

iii. The applicant is not entitled to NEB.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

5An 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 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.

6In all cases, the burden of proof lies with the applicant.

7The applicant submits that she should be removed from the MIG on the following grounds:

i. She suffered a fractured pisiform in her left wrist.

ii. She has psychological impairments.

iii. She has a pre-existing rotator cuff tear in her right shoulder which impacted her recovery for her accident-related left wrist injury.

12The respondent submits that the applicant suffered soft tissue injuries as a result of the accident, and as such, her injuries are predominantly minor and subject to the MIG limits.

The applicant is removed from the MIG as she sustained a fractured pisiform in her left wrist.

13I find that the applicant has established on a balance of probabilities that she sustained a fractured pisiform in her left wrist, which falls outside of the MIG.

14The applicant submits that as a result of the accident, she sustained a fracture in her left pisiform. To this end, she relies on the CT scan report of her left wrist, dated January 4, 2018, and the report of Dr. Robert Curridor, family physician, dated August 14, 2023.

15The respondent submits that although a left wrist fracture was initially suspected, it was later ruled out by Dr. Stephen Halman, the applicant’s treating orthopaedic surgeon. The respondent further submits that there is conflicting information regarding the diagnosis of a left wrist fracture for the applicant. It takes the position that the applicant sustained no fracture, and just had a left wrist sprain. To support its position, the respondent relies on the clinical note and record of Dr. Daniel Corazzola, dated December 20, 2017, x-rays of the left wrist and hand, dated December 20, 2017, clinical note and record of Dr. Halman, dated January 18, 2018, and imaging report of the left wrist, dated January 18, 2018.

16The crux of this dispute is whether the applicant sustained a left wrist sprain or a fractured pisiform as a result of the accident.

17I find that the applicant has established that she sustained a fracture in her pisiform in her left wrist. Although I agree with the respondent that the x-ray of the applicant’s left wrist dated December 20, 2017, did not reveal a fracture, the CT scan report of the left wrist, dated January 4, 2018, revealed an undisplaced fracture through the pisiform. I further disagree with the respondent that the CT scan report indicated that the fracture was suggestive, as it clearly stated that “there is a undisplaced fracture…”, which in my opinion is definitive and not a suggestion. Moreover, in my view if the result was suggestive, the CT scan report would have stated that there was a potential or it was unclear that the applicant sustained a undisplaced fracture, which was not the case here.

18I am not persuaded that Dr. Halman reviewed the CT scan report, dated January 4, 2018, and as such, he did not address whether the applicant sustained a fractured pisiform. I acknowledge the respondent’s position that Dr. Halman ruled out any fractures of the applicant’s left wrist; however, I disagree that it is clear that he reviewed the CT scan report of the left wrist, dated January 4, 2018. On January 18, 2018, Dr. Halman noted that previous x-rays were suggestive of a scaphoid fracture and that a follow up CT scan report failed to identify any fractures, but he did not identify the date of the CT scan report. Moreover, Dr. Halman made no reference to the undisplaced fracture in the pisiform as noted in the CT scan report, dated January 4, 2018, nor did he explain why the CT scan report might have stated that there was a fracture if there was none.

19I note that the imaging of the applicant’s left wrist, dated January 18, 2018, revealed a undisplaced fracture of the scaphoid. In any event, Dr. Halman’s opinion that there is no fracture, is contradicted by the CT scan report, dated January 4, 2018, which revealed a fracture in the applicant’s pisiform.

20As such, in my view, it is more likely that Dr. Halman was referencing the CT scan report, dated January 18, 2018, and not January 4, 2018, as he stated in his report that there was no evidence of a scaphoid fracture, but again there was no reference to the pisiform. In any event, It is unclear how Dr. Halman concluded that there was no fracture, when the CT scan report, dated January 4, 2018, and imaging, dated January 18, 2018, showed undisplaced fracture in the pisiform and scaphoid respectively.

21Regardless, the CT scan report, dated January 4, 2018, revealed an undisplaced fracture in the pisiform, and Dr. Halman’s record is unclear whether he reviewed this report. Alternatively, if Dr. Halman did review the report, he did not reference a pisiform fracture in his report, nor did he address why a undisplaced pisiform fracture in the applicant’s left wrist would not constitute as a fracture. Thus, I disagree with the respondent that Dr. Halman ruled out any fracture of the left wrist and at best, he ruled out a scaphoid fracture of the left wrist.

22Moreover, while Dr. Halman diagnosed the applicant with a left wrist sprain, it is unclear once again whether he was aware of the results of the CT scan report dated January 4, 2018.

23The respondent also raised no causation concerns in its submission with respect to the applicant’s documented fractured pisiform in her left wrist. Instead, the respondent raised a potential causation issue with respect to the applicant’s scapholunate disruption in her left wrist. As I have found that the applicant sustained a pisiform fracture in the left wrist, and no causation concerns have been raised, the applicant is removed from the MIG on this basis.

24To sum up, the parties are disputing whether the applicant sustained a fracture or a sprain in her left wrist as a result of the accident. The applicant sustained a fractured pisiform in her left wrist as indicated in the CT scan report, dated January 4, 2018. The respondent has also not referred me to evidence that rebuts or undermines the results of this CT scan report, as it is unlikely that Dr. Halman reviewed this during his consultation. Accordingly, I find that the applicant has met her evidentiary onus to demonstrate that she sustained a fractured pisiform in her left wrist as a result of the accident, and as fractures are not within the Schedule’s definition of “minor injury”, she is removed from the MIG. Having concluded that the applicant is removed from the MIG due to a non-minor injury, I do not need to decide her claims to be removed from the MIG based on a psychological impairment or that she has a pre-existing injury that precludes her maximal recovery if she were kept in the MIG.

The OCF-18 in the amount of $1,596.00 for physiotherapy treatment, submitted on December 1, 2018, is reasonable and necessary

25I find that the applicant has met her evidentiary onus to establish that the proposed OCF-18 for physiotherapy services is reasonable and necessary.

26To receive payment for a treatment and assessment plan pursuant to sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

27The applicant submits that the disputed OCF-18 is reasonable and necessary as it intends to provide pain relief and to manage her symptoms following the accident. The applicant further submits that physiotherapy treatment was recommended by Dr. Halman to improve her range of motion. To support her position, the applicant relies on the record of Dr. Halman, dated January 18, 2018.

28The respondent submits that the applicant has not submitted any medical documentation to substantiate that the OCF-18 in dispute is reasonable and necessary as a result of her accident-related injuries, and therefore it is not payable.

29The disputed OCF-18 proposed 16 hourly sessions of physiotherapy services and the goals included: pain reduction, increased strength, and for the applicant to return to her activities of normal living.

30I place significant weight on the contemporaneous medical record and find that the proposed physiotherapy services are reasonable and necessary. I disagree with the respondent that there is no medical documentation as Dr. Halman on January 18, 2018, recommended physiotherapy services for the applicant’s left wrist. On January 18, 2018, Dr. Halman opined that the applicant required physiotherapy in order to maximize her range of motion and strength in her left wrist. One of the goals of the OCF-18 is to improve strength and as such, I find that the applicant has established that the proposed OCF-18 is reasonable and necessary.

31As the respondent has not raised issues with the proposed costs associated with the proposed physiotherapy services. I have no reason to think that the costs associated with the treatment are unreasonable. Nor has the respondent raised any issue with the treatment modality.

32I further take note that the respondent provided a summary of the applicant’s file and noted that the applicant did not attend a scheduled insurer’s examination. However, the respondent did not advise whether it was seeking relief with respect to this, nor did it refer me to the test or authorities with respect to non-compliance with requests made under s. 44 or the consequences of same. As such, I will not be considering this issue for the purposes of my decision.

33I am also not persuaded by the respondent’s assertion that the applicant is not entitled to this treatment plan as she has submitted no evidence to indicate that it was incurred within 260 weeks of her accident, in accordance with s. 20(1)(a) of the Schedule. It has been determined by the Divisional Court that to require an insured person to pay for treatment as a precursor to commencing an application to the Tribunal would disadvantage the impecunious (see: Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200). As I have found the OCF-18 to be reasonable and necessary, the issue is not when the respondent will have to honour its obligations to fund treatment under the Schedule at some point in the future, but when should it have honoured its obligations in the past. Such an interpretation is in keeping with the intent of the Schedule to ensure treatment is made available to those in need, regardless of ability to pay and delaying payment does not allow the respondent to escape its obligations.

34Therefore, the applicant is entitled to the OCF-18, as it has been found to be reasonable and necessary.

The applicant did not submit a completed Disability Certificate (“OCF-3”) until October 24, 2019 and is not entitled to NEB

35I find that the applicant is not entitled to NEB from November 13, 2018, to October 23, 2019, because she did not submit a completed OCF-3 until October 24, 2019.

36The parties have raised an issue of when the completed OCF-3 was submitted to the respondent, as such, before I can address entitlement to NEB, I need to determine when the completed OCF-3 was submitted to the respondent. Section 36 of the Schedule outlines the process for claiming a NEB. Section 36(2) states that an insured person must submit a completed OCF-3 with their application for a specified benefit pursuant to section 32. Section 36(3) also sets out the entitlement period for the NEB once the completed OCF-3 is received: essentially, an insured person who fails to submit a completed OCF-3 is not entitled to a NEB for any period before the completed OCF-3 is submitted.

37The applicant submits that section 36(3) of the Schedule provides that the entitlement period for a NEB commences once the completed OCF-3 is received by the respondent. The applicant submits that a completed OCF-3 was submitted to the respondent on November 13, 2018. The applicant further submits that the respondent did not follow up for the OCF-3 and as such, she had no reason to believe it did not receive it previously. The applicant relies upon correspondence from the respondent, dated December 6, 2018, correspondence from MedRehab to the respondent, dated October 24, 2019, and email chains with MedRehab, dated December 7, 2022.

38The respondent submits that it did not receive the OCF-3, dated November 13, 2018, until October 24, 2019, and relies upon the email chain from MedRehab, dated March 2023.

39I find that the completed OCF-3 was received by the respondent on October 24, 2019, and not on November 13, 2018. I acknowledge that the applicant relies on the email chain with MedRehab where the clinic outlined their protocol with respect to sending OCF-3s on the same day they were completed with an invoice. However, I find this is insufficient to establish an OCF-3 was sent on November 13, 2018.

40First, the applicant has not produced evidence that the OCF-3 was sent on November 13, 2018, like a fax confirmation or other method of service. Instead, the applicant relies on speculative information from MedRehab about their usual protocol. This is in my view, insufficient to comply with section 36(3), as actual evidence is required, and not speculation. I further acknowledge that MedRehab advised the applicant on December 7, 2022, that their clinic had a flood in 2019, and they had little documentation left in the applicant’s file; however, the onus is on the applicant to demonstrate that the completed OCF-3 was submitted to the respondent on November 13, 2018, which I find is lacking here.

41Second, the evidence from MedRehab is from an employee that was not working on the applicant’s matter at the time the OCF-3 was allegedly submitted, and as such, her evidence holds little weight. The respondent produced an email from the MVA manager, from MedRehab, dated March 21, 2023, where she advised that she was not working at this location, and she could not say why the usual protocol was not followed. As such, I place little weight on the evidence provided by this employee, as she was not even working at this location at the time of when the OCF-3 was allegedly submitted. Moreover, it is unclear to me how the employee knows that the OCF-3 was faxed to the respondent on November 13, 2018, when she was not even working at the location at the time, and more importantly, she has been unable to find the actual documentation to confirm this.

42Thirdly, the applicant has not produced evidence that an invoice for the OCF-3 was submitted via Health Claims for Auto Insurance system (“HCAI”) or any other method of service on November 13, 2018. The applicant in her submissions requested that I draw an inference from the fax, dated October 24, 2019, as it referenced that the invoice for completion of the OCF-3 had been outstanding for quite some time, and as such, that this was not the first time the OCF-3 was submitted to the respondent. I agree with the respondent that such an inference would be inappropriate, as the applicant has not provided evidence from HCAI or other method of service to demonstrate that the invoice was sent to the respondent on November 13, 2018. I acknowledge that on October 24, 2019, MedRehab sent a correspondence which enclosed an invoice and OCF-3 dated November 13, 2018, but there is no fax confirmation or other proof of service for the OCF-3 or the invoice. Thus, I am not satisfied on a balance of probabilities that the invoice was submitted to the respondent on November 13, 2018.

43Furthermore, if the OCF-3 was submitted on November 13, 2018, as suggested by the applicant, one would expect that there would have been follow ups before October 24, 2019. However, the applicant has not directed me to evidence that supports she followed up.

44The onus is on the applicant to demonstrate that a completed OCF-3 was sent to the respondent, as such I disagree with the applicant that the respondent had an onus to follow up for the OCF-3. Instead, if the OCF-3 was submitted on November 13, 2018, as suggested by the applicant, one would expect that there would have been follow ups before October 24, 2019. Yet, the applicant did not direct me to evidence that supports she attempted to follow up with the respondent for her entitlement to NEB during this time period, which is peculiar.

45As such, the applicant has not provided evidence that the OCF-3 was submitted to the respondent before October 24, 2019, and as such, pursuant to section 36(3) of the Schedule, she is not entitled to NEB before this date.

The applicant is not entitled to NEB for the time period of October 24, 2019, to December 19, 2019

46I find that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life.

47Section 12(1) 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 at para. 50, which focuses on a comparison of the applicant’s pre-and post-accident activities.

48The applicant submits that as a result of her left wrist pain, she has difficulty with cooking and taking care of her grandchildren. To this end, she relies on the OCF-3, dated November 13, 2018, clinical notes and records of MedRehab and Dr. Ayeni Olubukunola, plastic surgeon, dated September 21, 2022, and the report of Dr. Curridor, dated August 14, 2023.

49The respondent submits that the applicant has not established entitlement to NEB for the period of October 24, 2019, to December 19, 2019, as she has not established that she meets the test for NEB as outlined in Heath. The respondent relies upon the s. 44 physician assessment report of Dr. Charanjit Sandhu, Occupational Medicine Physician, dated December 16, 2019, and record of Dr. Halman, dated January 18, 2018.

50The applicant did not identify the activities she values or provide evidence of the frequency and time commitments of her pre-accident activities, as required by Heath. In the absence of this information, it is difficult to compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued. I acknowledge that the applicant relies on her self-reporting to her treating physiotherapist at MedRehab on October 16, 2019, and November 11, 2019, where she reported difficulty with lifting a heavy pot and watching her grandchildren because of wrist pain. In my view, this vague self-reporting does not meet the stringent NEB test, as her self-described functional deficits do not rise to the level that they continuously prevent her from engaging in substantially all of her pre-accident activities.

51The applicant also does not direct me to a medical opinion from a treating physician that she suffers a complete inability to carry on a normal life. Although the OCF-3 prepared by Dr. Bibi Thomas, physiotherapist identified such an inability, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident.

52Moreover, while I acknowledge the applicant self-reported to Dr. Olubukunola, on September 21, 2022, that she was unable to abduct her left D5, however, Dr. Olubukunola did not provide an opinion of whether this was in relation to the accident, as he also noted that the applicant had a recent stroke in April. Dr. Olubukunola also did not provide an opinion of whether the applicant was substantially unable to perform her pre-accident activities of daily living as a result of accident-related impairments. The applicant also reported that her biggest concern was with respect to carpal tunnel in her right hand.

53The applicant has not produced evidence that supports that she has numbness and paresthesia over her left digits as a result of the accident. I acknowledge that the applicant made several submissions that she does have the above-noted impairments and referred to entries from Dr. Curridor and Mackenzie Richmond Hospital to support her position. However, she did not include these records in her hearing brief. I only have one report from Dr. Curridor, dated August 14, 2023, but there is no reference to numbness or paresthesia over her left digits. It is well-settled that submissions do not constitute as evidence. Thus, as the applicant has not submitted evidence to support her position, I am unable to determine whether she has paresthesia and numbness as a result of the accident.

54The onus is on the applicant to prove entitlement and not on the respondent to disprove. Contrary to the applicant’s submission, Dr. Sandhu did not confirm that the applicant was suffering from intermittent numbness and paraesthesia over her left digits, instead he stated that the applicant was self-reporting she was having these issues. However, the applicant has not produced the above noted medical records, and as such, I am unable to determine whether she has these impairments as a result of the accident.

55The applicant has also not directed me to evidence that supports her accident-related left shoulder pain prevents her from completing heavy lifting, repetitive bending or prolonged shoulder activities. I acknowledge the applicant’s position that Dr. Sandhu’s report noted she had an impaired ability to perform any heavy lifting, repetitive bending, or prolonged left shoulder activities as a result of her left shoulder; however, he also opined that this was likely due in part to her advanced age. The applicant has not directed me to evidence that rebuts or undermined this conclusion by Dr. Sandhu.

56For example, while Dr. Curridor in his report noted that the applicant sustained a soft tissue injury to her left shoulder, there is no reference to whether she has restrictions in her daily activities as a result. On January 18, 2018, Dr. Halman also noted that progression of activity was part of the recovery process for the applicant. As the applicant has not directed me to evidence that supports her left shoulder accident-related impairment resulted in an inability to do the above-referenced tasks, I find that she has not met the stringent test for NEB.

57In any event, stating that the applicant has an impaired ability, in my view is not the same as a complete inability to carry on a normal life. This finding is further supported by the applicant’s self-reporting to Dr. Sandhu that following the accident, she has returned to: reading, visiting an old age home, spending time with her grandchildren, going for lunch outings with her friends, is independent with cooking, and cleaning, albeit she has stopped going on walks with her neighbour. However, the applicant did not advise what prevented her from doing this and just stated that she stopped doing this activity. As such, the applicant has not established that she has a complete inability to carry on a normal life, and does not meet the test for NEB.

58In conclusion, I find that the applicant has not demonstrated a complete inability to carry on a normal life as a result of the accident and is not entitled to NEB.

The applicant is entitled to interest for the OCF-18 in the amount of $1,596.00 for physiotherapy treatment

54The applicant is entitled to interest on the disputed OCF-18, as it has been found reasonable and necessary. Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefit.

ORDER

55For the foregoing reasons, I find that:

i. The applicant is removed from the MIG.

ii. The applicant is entitled to the OCF-18 for physiotherapy, plus interest.

iii. The applicant is not entitled to NEB.