Citation: Washington v. The Personal, 2024 ONLAT 21-015360/AABS

Licence Appeal Tribunal File Number: 21-015360/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:

Homahan Washington

Applicant

and

The Personal

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Jeremy Magence, Counsel

For the Respondent:

Richard A. Tapp, Counsel

HEARD: By way of written submissions

OVERVIEW

1Homahan Washington (“the Applicant”) was involved in an automobile accident on April 2, 2019, and sought benefits from The Personal (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the minor injury definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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 Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,582.22 for chiropractic services proposed by Pro Life Wellness in a treatment plan dated December 3, 2019?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment proposed by Dr. S. Akram-Pall, in a treatment plan dated March 28, 2020?

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

RESULT

4I find that the Applicant sustained a minor injury as a result of the subject accident. He is not entitled to the treatment plans in dispute because the treatment plans propose goods and services outside the MIG and he remains subject to the MIG and the $3,500.00 funding limit for a minor injury. No interest is payable.

BACKGROUND

5The Applicant was driving a vehicle on a major highway when his vehicle was struck on the driver’s side by a merging vehicle, causing his vehicle to strike the guardrail. The Applicant was transported to the hospital by ambulance due to complaints of neck pain. X-rays taken at the hospital revealed no fractures and the Applicant was diagnosed with whiplash and discharged with pain medication and a recommendation to return if his symptoms worsen.

6The Applicant submits that he suffers from psychological injuries and a chronic pain condition and that these injuries are not included in the minor injury definition. From the Applicant’s perspective, he should not be subject to the MIG and the $3,500.00 funding limit because of these injuries.

ANALYSIS

The clinical notes and records (“CNRs”) of Dr. A. Lamotharan, family physician

7I must first address the CNRs of the Applicant’s family physician, Dr. Lamotharan. The Applicant never produced a transcription of Dr. Lamotharan’s hand-written and largely illegible clinical notes and records, despite being ordered to do so by the Tribunal. The Respondent submits that they are unpersuasive and should be afforded no weight as a result. The Respondent notes that it agreed to pay for the cost of the transcription and that the Applicant has failed to explain why the transcribed records were not produced.

8The Applicant never addressed the issue of Dr. Lamotharan’s CNRs in reply submissions, other than to dispute the Respondent’s interpretation of them. Instead, the Applicant submits that the Respondent’s submissions do not comply with the Tribunal order because the footnotes are smaller than 12 font and single-spaced. He submits that had the Respondent would’ve exceeded the page limit had it complied with the Order.

9I agree with the Respondent and afford Dr. Lamotharan’s CNRs no weight. There is a clear disagreement between the Applicant and the Respondent regarding the contents of Dr. Lamotharan’s CNRs and I am unable to settle the dispute over their contents without the transcription. Further compounding the severity of the breach is the fact that the Tribunal Order stipulates that the Respondent agreed to pay for the transcription, thus there is no financial barrier for the Applicant to produce the records. I will not consider the hand-written CNRs under these circumstances.

10I find that the Respondent’s submissions, including the footnotes, to be an unsubstantial breach of the Tribunal order. Indeed, the Respondent exceeded the page limit by two-and-a-half paragraphs and its footnotes appear to be a font that is smaller than 12 point and single-spaced. However, the final page of the Respondent’s submissions contains almost no substance and disregarding that last page has no impact on the outcome of the hearing. Likewise, the font and spacing of the Respondent’s footnotes appear to mimic the font and spacing of footnotes in previous Tribunal decisions and this issue has not impacted the Tribunal’s ability to conduct a fair and efficient hearing.

Minor Injury Guideline (“MIG”)

11The 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 the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

12The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. However, for the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

The Applicant does not suffer from an accident-related psychological impairment that is not included in the minor injury definition

13I find no compelling evidence to conclude that the Applicant sustained a psychological injury as a result of the accident.

14The Applicant submits that he was diagnosed with an Adjustment Disorder, Neurotic Disorder, and Specific (Isolated) Phobia as a result of the accident and that these impairments fall outside the minor injury definition. From the Respondent’s perspective, the lack of psychological complaints in the Applicant’s evidence confirms that he was properly placed within the MIG. I agree with the Respondent.

15As discussed at the outset of this decision, I am unable to consider the contents of Dr. Lamotharan’s CNRs because they are illegible and were not transcribed, as ordered by the Tribunal.

16I find the psychological pre-screen report by Dr. S. Akram-Pall, psychologist, unpersuasive and give it little weight. The pre-screen report fails to outline why the pre-screen telephone interview was commissioned. It is as if the psychologist called up the Applicant without any reason or prior relationship and administered an 80-item screening tool and interview without any prior evidence of possible psychological injury. There is no information in the Applicant’s treatment records with Pro Life Wellness to indicate that he suffers from symptoms of a psychological injury which would warrant a psychological pre-screen interview and psychological testing. Further, the contents of the screening inventory and the results of it are not included in the pre-screen report, further diminishing the overall persuasiveness of the document.

17I give no weight to the OCF-3 by Dr. Lamotharan, dated October 11, 2021. While this document refers to the subject accident, it clearly relates to a subsequent accident. The document notes that the Applicant’s symptoms arose in December 2020, which corresponds with a subsequent accident on December 8, 2020. As a result, I give no weight to Dr. Lamotharan’s diagnosis of post-traumatic stress disorder as it relates to the subject accident.

18The Respondent is not required to commission an IE with each denial of benefits. I recognize that the Respondent has not provided a medical opinion on the Applicant’s psychological health. However, I find that this is not fatal to the Respondent’s case given that the Applicant has not provided compelling information to conclude that he sustained a psychological injury as a result of the subject accident. The burden of proving an accident-related psychological injury rests with the applicant, not for the respondent to disprove it. To me, the minor psychological complaints in the Applicant’s medical record are sequalae of his minor injury.

19Having failed to provide persuasive evidence of an accident-related psychological injury, I find that the Applicant has not sustained a psychological injury as a result of the accident.

The Applicant does not suffer from an accident-related chronic pain condition

20I find no compelling evidence demonstrating that the Applicant suffers from an ongoing functional impairment due to accident-related pain. Similarly, and while acknowledging that the Schedule does not expressly incorporate them, I find no evidence that the Applicant meets the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment “AMA Guides”). As a result, I conclude that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

21I reiterate that I am unable to consider the contents of Dr. Lamotharan’s CNRs because they are illegible and were not transcribed, as ordered by the Tribunal.

22I find the CNRs from Pro Life Wellness do not demonstrate that the Applicant suffers from a chronic pain condition as a result of the subject accident. The CNRs note that the Applicant sustained a whiplash associated disorder and complained of pain and stiffness in his neck, back, shoulders, and knees. However, there is no evidence in these records to indicate that the Applicant is impaired by pain and he reported that his pain was getting better by June 18, 2019. I acknowledge that the MIG discharge report, completed by physiotherapist Berry of Pro Life Wellness, dated August 20, 2019, notes that an additional treatment plan is to be submitted. However, I find this uncompelling evidence of a chronic pain condition because the document fails to note that the Applicant has functional impairments, despite prompts for the information. The document has prompts regarding the extent to which the Applicant is able to complete his tasks of employment, yet the section is blank. The document also seeks to determine if the Applicant has difficulties performing his household chores due to the accident, and it indicates that he does not.

23The assessment report by Dr. Nolan, chiropractor at Pro Life Wellness, dated January 27, 2023, holds no weight in determining whether the Applicant suffers from a chronic pain condition. In the report, Dr. Nolan attributes the Applicant’s current presentation to the December 8, 2020 accident that the Applicant was involved in. I am unable to attribute the Applicant’s current presentation to the subject accident in light of this report.

24Dr. S. Baker, physiatrist, assessed the Applicant and concluded that he sustained a minor injury as defined in the Schedule. Dr. Baker found that the Applicant’s clinical presentation was consistent with post-traumatic headaches and sprain and strain injuries to the neck, left shoulder, and low back and concluded these injuries fall within the minor injury definition. Dr. Baker noted the Applicant’s complaints of pain in the neck, shoulder, and back but also noted that he remained independent with all his personal care tasks and returned to work on a fulltime basis with full duties. Dr. Baker observed some reduced range of motion in the Applicant’s neck and shoulder but noted that there was overall no evidence of an ongoing functional impairment.

25The Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined in the AMA Guides. The Applicant is not using or abusing prescription or other drugs. In fact, CNRs from Pro Life Wellness state that the Applicant only takes over-the-counter pain medication as needed. There is no evidence to suggest that the Applicant has withdrawn from social milieu, including work. Rather, the Applicant returned to work on a fulltime basis with full duties. This also suggests that the Applicant has restored his pre-accident function and is not deconditioned due to disuse. Further, the Applicant is not excessively dependent on healthcare providers or his family. Lastly, as noted previously, the evidence indicating that the Applicant suffers from a psychological injury holds no weight. In any event, potentially meeting one of the six criteria is insufficient to find that the Applicant suffers from a chronic pain condition which is not sequalae of his accident-related soft tissue injuries.

26I conclude that the Applicant has presented no evidence demonstrating that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule. As a result, I find that his injuries are rightfully captured under the minor injury definition.

The Applicant is not entitled to the treatment and assessment plans

27The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The Applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.

Interest

28Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

CONCLUSION and ORDER

29The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

30The Applicant is not entitled to the treatment and assessment plans in dispute, nor interest.

31The application is dismissed.