Licence Appeal Tribunal File Number: 22-006085/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:
Jonathan Wilson
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Margaret Sims
APPEARANCES:
For the Applicant:
Shen Subramaniam, Counsel
Vince Angelillo, Counsel
For the Respondent:
Shari Hatfield, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jonathan Wilson, the applicant, was involved in an automobile accident on August 9, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 (“MIG”) limit? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.
Is the applicant entitled to $2,190.00 for a chronic pain assessment by a general practitioner from Alexmuir Wellness Centre proposed by Branko Milen, chiropractor, in a treatment plan (OCF-18) dated December 21, 2020, denied by the respondent on January 25, 2021?
Is the applicant entitled to $2,125.00 for a psychological assessment from Alexmuir Wellness Centre proposed by Dr. Leon Steiner, psychologist, in a treatment plan (OCF-18) dated January 12, 2021?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s medical and rehabilitation benefits are subject to the MIG limit of $3,500.00 for injuries sustained as a result of the accident.
4I find that the applicant is not entitled to the treatment plans in dispute nor any interest in respect of these treatment plans because I am not satisfied that the treatment plans are in respect of injuries sustained in the accident on August 9, 2015 and not the subsequent accident on February 12, 2020.
5I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.
ANALYSIS
Minor Injury
6I find that the applicant’s medical and rehabilitation benefits are subject to the MIG limit of $3,500.00 because the injuries he sustained in the accident were predominantly minor as defined in s. 3 of the Schedule. He has not demonstrated on a balance of probabilities that his accident-related impairments fall outside of the MIG.
7The applicant bears the onus of proving on a balance of probabilities that his accident-related impairments fall outside of the MIG. To do so, the applicant will need to demonstrate that their accident-related injuries fall outside of the definition of “minor injury”.
8Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to the MIG limit of $3,500.00 if the insured person sustains injuries that are predominantly minor as defined in s. 3 of the Schedule.
9Section 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.”
10While psychological symptoms arising from soft tissue injuries are included in the MIG, psychological impairments may fall outside the MIG if the applicant’s psychological complaints are not merely sequelae arising from the applicant’s soft tissue injuries but are a psychological impairment resulting from the accident.
11While the presence of ongoing pain on its own is insufficient to justify removal from the MIG, chronic pain may be a basis for removal from the MIG if a resulting functional impairment is also proven.
Minor Injuries Sustained in the Accident
12The applicant submits that he should not be subject to the MIG limits because he suffers from chronic pain and psychological impairments.
13The applicant relies upon a pre-screening assessment conducted on December 29, 2020 by Dr. Leon Steiner, psychologist, as evidence that the applicant is suffering from chronic pain and psychological impairments.
14In the pre-screening assessment, Dr. Steiner includes the applicant’s self-reporting that he is experiencing pain primarily in his neck, shoulders and back post-accident, he has difficulty sleeping, has low energy and has experienced a change in his social life post-accident. Dr. Steiner concludes his pre-screening assessment, as follows.
Diagnostic Impression:
Adjustment Disorder (F432)
Mixed Anxiety and Depression (F412)
Clearly, Mr. Wilson is experiencing some psychological distress at this juncture in his life. Overall, his psychological symptoms, frustration, and coping style are affecting his ability to engage in his everyday activities. An assessment is warranted to further investigate these psychological factors.
15The applicant further submits that the respondent did not adduce any medical evidence supporting the non-existence of a chronic pain and/or psychological condition.
16The respondent submits that at most, the applicant suffered sprain or strain-type injuries as a result of the motor vehicle accident of August 9, 2015 which fall within the definition of minor injury in the Schedule and is subject to treatment within the $3,500.00 MIG limit.
17The respondent submits that the applicant has failed to submit any evidence of injuries that would fall outside the minor injury definition in the Schedule and notes that the only medical evidence submitted by the applicant is the undated pre-screening assessment of Dr. Leonard Steiner. In this regard, the respondent notes:
i. the August 10, 2015 diagnoses by Dr. Rob Morano of City View Chiropractic of WAD II, thoracic sprain/strain, lumbar sprain/strain;
ii. the August 10, 2015 diagnoses by the applicant’s family doctor Dr. Eric Lahnsteiner of cervical and thoracic strain and recommendations included taking Aleve and a few days off work as a mechanic;
iii. the August 14, 2015 visit to Dr. Eric Lahnsteiner at which the family doctor diagnosed cervical spine, thoracic spine, and lumbar spine strain, and recommended massage/physio and that the Applicant be off work from August 10-19, 2015 followed by 2 weeks of light duties;
iv. no records beyond August 28, 2015 from City View Chiropractic have been provided to the respondent;
v. there are no further visits to the family doctor for accident-related injuries prior to a subsequent accident on February 13, 2020.
18The respondent further submits that the applicant was in a subsequent motor vehicle accident on February 13, 2020 (the “subsequent accident”) and that the benefits claimed are related to injuries sustained in the subsequent accident which occurred in 2020 and not the August 9, 2015 accident which is the subject of this hearing. In this regard, the respondent references the notes of Dr. Eric Lahnsteiner which indicate the applicant reported being in an MVA on February 12, 2020 when he was stopped at lights and rear-ended by large SUV and the doctor’s diagnosis of cervical strain and lumbar strain.
19The respondent submits that the treatment plans at issue are all for the period after the subsequent accident of February 12, 2020 and that the treatment plans relate to injuries sustained in the subsequent accident.
20The respondent further submits that, despite the productions ordered in the Case Conference Report and Order of March 8, 2023 (the “CCRO”):
i. no records after August 28, 2015 from City View Chiropractic have been produced,
ii. no medical records after February 13, 2020 from Dr. Lahnsteiner or any other family doctor or walk in clinic have been produced.
21Further, the respondent submits that the Tribunal should draw an adverse inference against the applicant as the applicant has not yet produced the following documentation ordered produced in the CCRO:
a) City View Chiropractic session notes for: September 4, 9, 11, 16, 18, 23, 2015, October 1, 2015 and January 15, 2016 to date;
b) Legible clinical notes and records from Dr. Lahnsteiner from August 2013 to date;
c) Clinical notes and records from Applicant’s family physician since Dr. Lahnsteiner stopped practicing;
d) Records from any walk-in clinics from February 2020 to date;
e) Prescription summaries from August 2013 to date;
f) Decoded OHIP Summary from September 6, 2018, December 12, 2019 and May 28, 2022 to date;
g) Records of any other specialists that the Applicant saw as a result of the August 9, 2015 accident;
h) Regarding the subsequent automobile accident of February 2020:
i. The police report;
ii. Information regarding the owner of the vehicle;
iii. Insurance details for the vehicle the Applicant was an occupant of on this date of loss;
iv. Complete AB file inclusive of treatment plans, assessments, correspondence, benefit statements/payment summary, CNRs and
v. Complete property damage file for the February 2020 date of loss
22The applicant did not file reply submissions.
23I find that the applicant sustained “minor injuries” as defined in section 3(1) of the Schedule in the accident. In particular, I find that the applicant sustained cervical, thoracic and lumbar strain, based on the records of the physical examination by Dr. Rob Morano and Dr. Eric Lahnsteiner, which are injuries covered by the definition of “minor injury”.
24I find that, in this case where there was a subsequent motor vehicle accident, it is appropriate to draw an adverse inference against the applicant as a result of his failure to produce the documents ordered produced in the CCRO.
25Even without drawing the adverse inference, I find that the applicant has not met his burden of establishing that he has sustained an accident-related psychological impairment or disability that fall outside of the definition of minor injury as a result of the accident.
26Even without drawing the adverse inference, I find that the applicant has not met his burden of establishing that he suffers from chronic pain such that he has sustained an accident-related injuries that fall outside of the definition of minor injury. Further, no evidence, explanation or submission was given by the applicant to address the common sense assumption that his self-reports of pain set out in the pre-screening assessment were the result of the subsequent accident and not the accident.
27I have found that the applicant’s injuries from the accident are within the MIG. As the MIG limits have not been exhausted, in accordance with section 40(8) of the Schedule an applicant’s treatment plans in respect of injuries sustained in the accident are deemed reasonable and necessary and the applicant would be entitled to their benefit claims up to the MIG limits.
28However, to be entitled to a treatment plan under the MIG with respect to the accident, the applicant does bear the burden of demonstrating on a balance of probabilities that the benefit claimed is for injuries sustained as a result of the accident. Section 40(1)(a) of the Schedule provides that the MIG applies if “the person sustains, as a result of an accident, a minor injury to which the Minor Injury Guidelines applies”.
29I find that the applicant has not met his burden in establishing that the treatment plans are as a result of the accident. The accident was on August 9, 2015. The applicant was involved in a subsequent motor vehicle accident on February 12, 2020 and the two treatment plans at issue, dated December 21, 2020 and January 12, 2021, are for treatment after that subsequent accident. The applicant has not met the burden of establishing that the treatment is in respect of the accident and not the subsequent accident.
Award
30I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.
31Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
32I find that the applicant is not entitled to an award as I do not find that the respondent unreasonably withheld or delayed the payment of benefits.
ORDER
33The applicant sustained minor injuries as a result of the accident and is subject to the MIG limit on treatment for injuries as a result of the accident.
34I find that the applicant is not entitled to the treatment plans in dispute nor interest in regard to the treatment plans.
35The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
Released: July 19, 2024
Margaret Sims
Adjudicator