Licence Appeal Tribunal File Number: 22-001768/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:
Nathaniel Rollocks
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
George Campbell, Paralegal
For the Respondent:
Joshua Edmunds, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nathaniel Rollocks (the “applicant”) was involved in an automobile accident on June 27, 2019, 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 (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:
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”)
Is the applicant entitled to the assessments proposed by HealthMax Physiotherapy Clinics, as follows:
(i) $2,622.56 for physiotherapy assessment/treatment, in a treatment plan dated January 8, 2020;
(ii) $2,454.35 for physiotherapy assessment/treatment, in a treatment plan dated August 26, 2020;
(iii) $1,610.32 for physiotherapy assessment/treatment, in a treatment plan dated April 21, 2021;
(iv) $2,460.00 for psychological assessment/treatment, in a treatment plan dated April 21, 2020;
(v) $1,558.00 for physiotherapy assessment/treatment, in a treatment plan dated February 25, 2020;
(vi) $2,454.35 for physiotherapy assessment/treatment, in a treatment plan dated August 26, 2020;
(vii) $5,934.90 for physiotherapy assessment/treatment, in a treatment plan dated January 11, 2021; and
(viii) $1,610.32 for physiotherapy assessment/treatment, in a treatment plan dated February 8, 2021?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. He is not entitled to the treatment plans, nor interest.
iii. The application is dismissed.
PROCEDURAL ISSUES
The Applicant’s Reply Submissions
4The respondent on October 31, 2023, objected to paragraphs 8 and 9 of the applicant’s reply submissions, as well as Tabs 5, 6 and 7 as it argues that this is new arguments and evidence. These tabs pertained to the authority of Arhontakis v. TD Insurance Meloche Monnex, 2023 CanLII 87386 (ON LAT), (“Arhontakis”) (Tab 5), the LinkedIn Profile of Dr. Warren Shepell, psychologist (Tab 6) and various invoices ranging from 2021 to 2022 (Tab 7). As such, it requested that these submissions and tabs be struck from the record.
5In response on November 1, 2023, the applicant argued that reference to Dr. Shepell is contained in both the applicant and the respondent’s documentary briefs, at Tabs 19 and 2 respectively. Moreover, he argues that he already included the invoices, which were again enclosed at Tab 7 of his reply submissions. Accordingly, he argues that none of this is new information, and nothing should be struck.
6I find that the applicant’s reply submissions with respect to Dr. Shepell, at the bottom of paragraph 8 refers to new evidence that would prejudice the respondent. Thus, the Tribunal will not consider the LinkedIn profile of Dr. Shepell, and the bottom portion of paragraph 8 of the applicant’s reply submissions will be struck from the record. However, the applicant did not refer to new evidence at paragraph 9 of his reply submissions, and these will not be struck from the record.
7It is well settled that the purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument. It is also well-settled that the right of reply is a limited one. As a general rule, parties are expected to make the entirety of their cases in their main submissions. New evidence as part of a reply typically is not permitted, because the respondent does not have the opportunity to respond to new evidence that is tendered as part of a reply.
8With respect to paragraph 8 of the applicant’s reply submission, I partially agree with the respondent that this contains new evidence and submissions, with reference to Dr. Shepell only.
9To provide more context, at paragraph 8 of the applicant’s reply, the applicant made submissions with respect to working on modified duties, cited the authority ofArhontakis to support his chronic pain argument, and argued that he received treatment for anxiety and depression from Dr. Shepell, a consultant hired by his employer. I agree with the respondent that the submissions with respect to Dr. Shepell and the LinkedIn Profile are new submissions and evidence, as the applicant did not make these submissions or include any evidence from Dr. Shepell in his initial hearing submissions.
10While I am alive to the applicant’s position that reference to Dr. Shepell is made in both his documentary briefs and the respondent’s, I disagree that a mere reference to a doctor is sufficient to establish that this is not a new argument and evidence.
11First, contrary to the applicant’s arguments, there is no reference to Dr. Shepell at Tab 19 of his hearing brief, as argued. Indeed, Tab 19 pertains to adjuster log notes, and once again, there is no reference or discussion of Dr. Shepell. Therefore, it appears that the applicant’s argument rests on his self-reporting to s. 44 assessor, Dr. Marc Mandel, psychologist, at Tab 2 of the respondent’s hearing brief.
12On June 24, 2021, the applicant self-reported to Dr. Mandel that “he was using Warren Shappel through his work…” However, the applicant did not make any submissions with respect to Dr. Shepell, nor did he proffer any evidence from this doctor in his initial submissions, and he has provided no explanation as to why this could not have been reasonably raised in his initial submissions.
13Now turning to the remaining arguments at paragraph 8 and Tab 5, which is the decision of Arhontakis, I find that this was a proper reply. In his initial submissions, the applicant argued that he has been diagnosed with chronic pain, and that he had returned to work on modified duties. In its submissions, the respondent argued that a chronic pain diagnosis alone was insufficient to remove the applicant from the MIG, and that instead his functional abilities need to be examined. In my interpretation, the applicant provided further submissions and cited Arhontakis to respond to the respondent’s position that he had not established his chronic pain warrants removal from the MIG. Consequently, I disagree with the respondent’s position that this is new argument and evidence, rather it is a proper response to its submissions. Therefore, I will not be striking the remaining portion of paragraph 8 nor Tab 5 from the record.
14In a similar vein, I decline to strike paragraph 9 and Tab 7 from the record. I am alive to the fact that the applicant did not make submissions to these invoices in his initial hearing submissions. However, these invoices were enclosed in his initial hearing submissions, and the respondent has not provided any submissions or evidence of any prejudice that it has suffered. Given that it is not new evidence, I do not find that the respondent would be prejudiced by its inclusion. As such, the respondent’s request to strike paragraph 9 and Tab 7 is denied.
15In short, I find that the bottom portion of paragraph 8 in reference to Dr. Shepell and Tab 6 of the applicant’s documentary brief will be struck from the record. Nevertheless, I decline to strike the remaining portion of paragraph 8, Tab 5, paragraph 9, and Tab 7 of the applicant’s reply submissions.
ANALYSIS
The Minor Injury Guideline
16Section 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.”
17An 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 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.
18In all cases, the burden of proof lies with the applicant.
19The applicant argues that he should be removed from the MIG on the three following grounds:
i. He has pre-existing conditions to his left knee, lower back, and heart that were exacerbated by the accident.
ii. He has developed features of chronic pain syndrome.
iii. He has developed psychological impairments.
20Meanwhile, the respondent argues that the applicant has not met his onus and he should not be removed from the MIG due to his psychological symptoms, chronic pain, or a pre-existing condition.
The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG
21I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.
22The applicant argues that his pre-existing conditions are evidenced in the Disability Certificate (“OCF-3”), completed by Dr. Dinna Icatar, chiropractor, dated July 29, 2019, and in the initial and updated medical records.
23In response, the respondent submits that there is no evidence of a pre-existing medical condition for which the treatment protocols of the MIG would be inadequate to treat the applicant’s injury.
24The presence of pre-existing conditions alone is insufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG. While I acknowledge that the applicant submits that he has pre-existing medical conditions, he has not referred me to specific evidence to support this position, aside from one OCF-3.
25I will start with the initial and updated medical records, which appear to be the records of the applicant’s family physician, Dr. Ian Gliklich. I have reviewed the evidence provided and it establishes that the applicant had the following pre-existing conditions: Wolff Parkinson White Syndrome, and lower back pain, which would satisfy the first part of the test under s. 18(2), which is that the applicant has a documented pre-existing condition. However, this satisfies only half of the test. The second half of the test is that there must be compelling evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if subject to the MIG.
26The applicant has not met the second part of the test pursuant to s. 18(2) of the Schedule. From the records that can be interpreted, Dr. Gliklich has not provided a medical opinion of whether the applicant’s pre-existing lower back pain and heart condition were exacerbated by the accident, or more critically, whether this would prevent maximal medical recovery if he was kept within the MIG.
27Equally, I find that the OCF-3 falls short of establishing that the applicant’s pre-existing conditions would prevent maximal medical recovery if he was kept within the MIG limits. Notably, the OCF-3 notes that the applicant has a pre-existing heart condition, called Wolff Parkinson White Syndrome. However, there is no reference to whether this will prevent him from recovering from his accident-related injuries if he was subject to the MIG, which is the requirement under the second part of the test under s. 18(2).
28In short, while the applicant has established that he has documented pre-existing conditions, he has not produced compelling evidence to meet the second part of the test under s. 18(2), therefore he is not removed from the MIG on this basis.
The applicant has not established chronic pain warranting removal from the MIG
29I find that the applicant has not established that he suffers from a chronic pain condition with functional impairments that would warrant removal from the MIG.
30The applicant submits that as a result of the accident, he sustained left knee pain, neck pain and back pain. The applicant further submits that he has been diagnosed with chronic pain by Dr. Gliklich. Therefore, he argues that he has developed features of chronic pain syndrome and should be removed from the MIG. To this end, he relies upon the clinical notes and records (“CNRs”) of Dr. Gliklich.
31The respondent argues that a diagnosis of chronic pain alone does not automatically remove the applicant from the MIG. It further takes the position that the applicant’s left knee impairment, i.e., a meniscal tear, is not accident related. Finally, it submits that the applicant does not meet any of the six criteria as described in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). To support its position, it relies upon the s. 44 reports of Dr. Michael Hanna, physician, dated November 5, 2020, his addendum report, dated April 15, 2021, and s. 44 report of Dr. Ahmad Belfon, physician, dated March 5, 2020.
32To begin, as the respondent has raised a causation issue with respect to the applicant’s left knee impairment, I will turn to this first. The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities. The applicant must show that he would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The injuries do not need to be “the cause” of the accident, but at least “a necessary cause” (see: Sabadash v. State Farm et al., 2019 ONSC 1121). While the parties have not referred me to this authority, it is the leading authority from the Divisional Court on the issue of causation and I am bound by it.
33The applicant has not established on a balance of probabilities that the accident was a necessary cause of his left knee impairment. I am not persuaded by the applicant’s position that his left knee impacted the dashboard following the accident, and that he suffered a mishap on the same knee during a basketball game, as this is not supported by the medical record.
34For example, during his first post-accident visit with Dr. Gliklich, he was prescribed Vimovo, however the entry is silent to what this is for, nor is there any reference to the accident. Subsequently, on September 9, 2019, when the applicant advised Dr. Gliklich of the accident, he complained only of neck and back pain, and no reference to any left knee injury was made.
35The first time the applicant complained of left knee pain to Dr. Gliklich was on October 7, 2019. He stated the pain was from playing basketball and made no reference to this accident. The fact that the applicant made no reference to the accident when he first reported left knee pain, instead citing another cause for his symptoms lends credence to the respondent's position that the left knee pain was not accident-related.
36Second, in his visit with Dr. Charles Thompson, orthopaedic surgeon, on January 26, 2020, the MRIs, dated December 1, 2019 and November 17, 2022, and subsequent visits with Dr. Gliklich until 2023, the applicant did not once advise that his left knee pain was related to this accident. Instead, he consistently self-reported that his left knee pain started when he collided with another player while playing basketball. Where both the applicant and medical practitioners have linked the applicant’s left knee pain to a basketball incident, I find that the applicant has not met his onus to establish this accident was a necessary cause of his left knee injury.
37Third, the onus is on the applicant to establish that the accident was a necessary cause of his left knee impairment, not on the respondent to disprove. Against the applicant’s submissions, Dr. Belfon did not opine that he wanted to “hold off on his conclusion” until he reviewed the MRI of the left knee, dated December 1, 2019. Rather, the applicant self-reported to Dr. Belfon that he had left knee pain following the accident, and that he had an MRI completed on his left knee which showed a meniscal tear. As the applicant did not advise Dr. Belfon of the basketball incident, Dr. Belfon stated that an MRI of the left knee would be helpful in corroborating the extent of this injury.
38Furthermore, I acknowledge that the applicant is correct that Dr. Hanna, in his addendum report, reviewed the MRI, dated December 1, 2019, and the records of Dr. Gliklich and concluded that the applicant had a lateral meniscal injury from this accident. However, as noted above, the onus is on the applicant and not on the respondent, and in this regard, the applicant has fallen short of meeting this. Relying on weaknesses in the respondent’s evidence alone is insufficient, especially, when both the applicant’s self-reports to Dr. Thompson and Dr. Gliklich and the doctors themselves link the knee pain to a basketball incident.
39To conclude, I find that the applicant has not met his evidentiary onus to establish that the accident was a necessary cause of his left knee injury.
40I find that the applicant has not met his onus of establishing that he should be removed from the MIG on the basis of chronic pain for the reasons which follow.
41First, while I am alive to the applicant’s argument that he was diagnosed with chronic pain by Dr. Gliklich, I could not locate such a diagnosis in the records provided. Nor is there any discussion of functional impairment or the impact the impairment is having on the applicant.
42Rather the records from Dr. Gliklich show that the applicant has been diagnosed with strain injuries to his neck and back, which are captured within the definition of a “minor injury”. This is reflected in the entries, dated September 9, 2019, and February 8, 2021.
43In my view, these sporadic visits with Dr. Gliklich do not support a finding that the applicant suffers from chronic pain as a result of the accident. Moreover, Dr. Gliklich did not refer the applicant to any pain specialists, and the applicant has been diagnosed with sprains which are injuries captured within the MIG.
44Second, the applicant has not directed me to evidence that supports his accident-related pain has negatively impacted his function or his activities of daily living. I acknowledge that he argues that he returned to work on modified duties and was barely coping, however he did not produce objective evidence to support this proposition, like an employment file or a medical opinion.
45Lastly, I accept the description of chronic pain in T.S. v. Aviva General Insurance Company, 2018 CanLII 83520 (ON LAT), as referenced by the applicant, even though I am not bound by prior decisions of the Tribunal. However, it is well accepted by this Tribunal that, to warrant removal from the MIG, chronic pain must involve a significant disruption to an applicant’s life and include a functional impairment.
46Apart from the applicant’s self-reporting to Ms. Z. Ladak, psychological associate, Dr. Hanna, and Dr. Belfon, he has not produced other evidence like a medical opinion to support that his housekeeping/home maintenance tasks, sports, recreational activities, and childcare activities have been impacted by this accident. As such, the applicant has not established that his chronic pain has caused a significant disruption to his life.
47Finally, I agree with the respondent that the applicant has not established that he meets three out of the six criteria as set out in the Guides for establishing chronic pain. While the Guides provisions about chronic pain are not incorporated into the Schedule, this Tribunal has consistently applied them as a useful interpretive tool on 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 contacts;
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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
48The applicant has not pointed me to or tendered evidence that shows he is drug-dependent or abuses prescription drugs or other substances. I acknowledge the applicant’s submissions that he has been prescribed Vimovo by Dr. Gliklich, however a prescription for medication does not establish drug dependency or abuse. Likewise, the last time the applicant sought medical attention from Dr. Gliklich for an accident-related pain complaint was February 8, 2021, which does not establish he is dependant on health care practitioners. Similarly, the applicant has not led evidence of secondary physical deconditioning. Thus, he does not meet the first three criterion outlined in the Guides.
49With respect to criterion four, the applicant has returned to work, albeit he claims it is on a modified basis and that he is barely coping, however as noted above, he has not produced objective evidence to support this. Moreover, he has not produced evidence to support that he has withdrawn socially or that he failed to restore pre-injury function sufficient to pursue work or family needs. Finally, the applicant did not make any submissions or point me to evidence that shows he experiences psychosocial sequelae. Therefore, he does not meet any of the remaining three criterion.
50As an aside, I note that the applicant in his reply submissions argued that he was diagnosed with a concussion and chronic pain by Dr. Hanna and in the CNRs of Scarborough General Hospital. However, the applicant did not proffer a copy of the CNRs from Scarborough General Hospital as evidence for this hearing. It is well-settled that submissions are not evidence. Furthermore, Dr. Hanna did not diagnose the applicant with a concussion and chronic pain, but instead the applicant was diagnosed with: post-traumatic headaches, strain/sprain injuries to the cervical, thoracic, and lumbar regions, and shoulders, and left knee sprain/strain- lateral meniscal injury.
51In brief, where there is no diagnosis of chronic pain, and the applicant does not meet any of the six criteria under the Guides, I have insufficient evidence to find that he should be removed from the MIG on the basis of chronic pain.
The applicant is not removed from the MIG on the basis of any psychological impairments
52I find that the applicant has not established on a balance of probabilities that he has psychological impairments from the accident that would warrant removal from the MIG.
53Psychological impairments are not included in the definition of minor injury at s. 3 of the Schedule. The onus is on the applicant to establish that he has a psychological impairment rather than psychological symptoms that are sequelae of a minor injury.
54The applicant’s submissions are difficult to follow. He appears to be arguing that according to an adjuster log note, dated March 18, 2021, he was removed from the MIG due to his psychological impairments. He also argues that he has been diagnosed with psychological impairments both by Dr. Gliklich and s. 25 assessor, Ms. Ladak.
55On the other hand, the respondent argues that there is no evidence that the applicant developed psychosocial issues as a direct result of the accident. It submits that there is a gap of nearly two years before the applicant’s first mention of psychological issues to Dr. Gliklich, and it takes the position that this is not related to the accident. It further relies upon the s. 44 report of Dr. Mandel, dated June 24, 2021, to support its position.
56I find that there is limited evidence before me to support that the applicant sustained a psychological impairment as a result of the accident.
57First, the applicant did not mention psychological complaints to Dr. Gliklich, until February 8, 2021 (nearly two years following the accident). I acknowledge the applicant’s reliance on the fact that he was diagnosed with depression by Dr. Gliklich, referred to a specialist, and prescribed Cymbalta. However, this is the only entry in which the applicant attributes his psychological symptoms to the accident. In the subsequent entries, dated September 11, 2021, March 1, 2021, and March 22, 2021, the applicant associates his psychological symptoms with interpersonal challenges unrelated to the accident.
58Second, while I acknowledge that as the applicant’s primary treating physician, Dr. Gliklich is familiar with the applicant’s medical history and present condition, I place more weight on the opinion of Dr. David Goldbloom, psychiatrist over Dr. Gliklich. Dr. Goldbloom is a psychiatrist and has more of a specialized knowledge over psychological impairments than Dr. Gliklich, a family physician. Significantly, while Dr. Goldbloom reviewed the s. 25 psychological report, he opined that the trigger of the applicant’s anxiety were his interpersonal challenges unrelated to the accident. As a result, Dr. Goldbloom provisionally diagnosed the applicant with an adjustment disorder with depressed disorder, and there was no reference to the accident having a role in this.
59Third, I prefer the report of Dr. Mandel over the report of Ms. Ladak. First, Dr. Mandel reviewed extensive medical documentation, meanwhile Ms. Ladak relied mostly on the applicant’s self-reporting. Second, despite the applicant’s self-reporting that his anxiety was triggered by disagreements with his son’s mother, there is no discussion of the role this trigger plays in his condition of an adjustment disorder. As noted above, Dr. Goldbloom has opined that this is the trigger for the applicant’s anxiety, and he did not attribute this psychological condition to the accident. Last, Dr. Mandel’s opinion that the applicant has no psychological impairment from the accident is corroborated by the two-year gap in reporting the symptoms to Dr. Gliklich, and Dr. Goldbloom’s opinion that that family conflict is the trigger.
60I also take note of the applicant’s reliance on an adjuster log note, dated March 18, 2021, in which he argues that he is removed from the MIG on the basis of his psychological impairments. Upon review of this entry, I note that it states on the top of the entry “NON-MIG request”, and at the bottom “Removal of MIG due to psych only.” In my interpretation, it appears that the adjuster was requesting that the applicant be removed from the MIG due to being diagnosed with depression by Dr. Gliklich, as the top of the entry notes that it is a request. Even if I am incorrect, the respondent in its submissions maintains that the applicant is in the MIG, and under s. 18(2), the onus is on the applicant to establish he should be removed from the MIG, which I find that he has not done.
61For the above-noted reasons, I find that the applicant has not met his burden of proof to establish that he as a psychological impairment as a result of the accident.
62As I have found that the applicant remains within the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans in dispute.
63The applicant argues that the respondent is liable to pay for the treatment plans, as the respondent violated ss. 38(8), 38(9), 38(11), and 44(5).
64The applicant has provided no submissions on why or how the respondent was non-compliant with ss. 38(8), and (9). Further, the applicant did not point me to evidence to support his submissions. As such, I find that the applicant has not established any failure by the respondent to comply with s. 38(8) of the Schedule.
65The applicant further argues that the respondent violated s. 44(5), as it did not conduct an insurer’s examination for each treatment plan in dispute. Furthermore, he argues that the respondent did not complete insurer’s examinations upon receipt of the updated records. While I am alive to these arguments, the insurer’s examinations available under s. 44 are optional and not mandatory for insurers and, as such, the applicant’s position on this point is untenable, and does not make the treatment plans payable.
66The applicant has not established that the treatment plans are payable due to any procedural non-compliance with the Schedule on the part of the respondent.
67Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.
ORDER
68For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. He is not entitled to the treatment plans, nor interest.
iii. The application is dismissed.
Released: August 12, 2024
Tanjoyt Deol
Adjudicator