Licence Appeal Tribunal File Number: 23-008579/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:
Kingsley Williams
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Paralegal
For the Respondent:
Michael Courneyea, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Kingsley Williams, the applicant, was involved in an automobile accident on March 25, 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 the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2After the parties’ exchanged their written hearing submissions, the respondent withdrew the preliminary issue as listed in the Case Conference Report and Order (“CCRO”) released on January 19, 2024.
ISSUES
3The 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 that $128.12 remain under the MIG limits as of the case conference.
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 22, 2021 to April 20, 2023?
Is the applicant entitled to $3,157.39 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 (“treatment plan”) dated August 13, 2021 and denied August 18, 2021?
Is the applicant entitled to $2,825.37 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated November 30, 2021 and denied December 9, 2021?
Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Alma Rehab Inc. in a treatment plan dated March 16, 2022 and denied March 18, 2022?
Is the applicant entitled to $2,493.35 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated March 16, 2022 and denied August 30, 2022?
Is the applicant entitled to $887.60 for assistive devices, proposed by Ontario Independent Assessment Centre Inc. in a treatment plan dated August 20, 2021 and denied September 7, 2021?
Is the applicant entitled to $2,397.75 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre Inc. in a treatment plan dated June 15, 2023 and denied June 16 2023?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
The applicant is not entitled to a NEB.
The applicant is not entitled to the treatment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
5The application is dismissed.
ANALYSIS
Minor Injury Guidelines
6I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and is subject to its $3,500.00 limit on treatment.
7Section 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.”
8An 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), they have a documented pre-existing injury or condition with compelling medical evidence stating that the condition precludes recovery from their 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. In all cases, the burden of proof lies with the applicant.
9The applicant submits that he should be removed from the MIG on three grounds: (a) he has a pre-existing medical condition; (b) he suffers from chronic pain as a result of the accident; and (c) he suffers from a psychological impairment as a result of the accident.
10In response, the respondent submits that the applicant has provided limited medical information regarding his pre-existing medical condition, and that he has not provided compelling evidence that he cannot achieve maximal medical recovery if he is treated within the MIG. The respondent also states that the applicant has provided limited medical information regarding this post-accident injuries, and that there is no basis to conclude that he suffers from chronic pain and a psychological condition as a result of the accident.
(a) Pre-existing Condition
11The applicant states that he was previously involved in an accident in 2016, and that he sustained a cervical spine fracture and that he had internal bleeding, requiring surgical intervention (posterior fixation of the neck). He also has a history of mental health issues. The applicant relies on the clinical notes and records of his family physician, Dr. Christopher Chiang, which indicate pre-existing health issues including chronic neck pain, psychiatric conditions, including depression and agitation prior to the subject accident, and referrals for psychiatric treatment due to depression, agitation, and bereavement on June 7, 2020 and August 10, 2021.
12The respondent submits that the applicant has not provided any medical documentation for the period between the 2016 accident and the subject accident to establish that he has a pre-existing medical condition that was documented by a health practitioner before the accident, and the applicant has not provided compelling evidence from a health practitioner that he cannot achieve maximal medical recovery if he was treated within the MIG. Although the applicant claims that he consulted Dr. Chiang prior to the subject accident, there are no clinical notes and records detailing specific visits and complaints.
13I find that the applicant has not established on a balance of probabilities that he should be removed from the MIG due to a pre-existing medical condition. Section 18(2) of the Schedule requires compelling evidence of a pre-existing condition documented by a health practitioner before the accident, and which prevents the achievement of maximal recovery under the MIG. While the applicant reports that he sustained a cervical spine fracture requiring surgical intervention following his 2016 accident, the applicant has not directed me to compelling medical evidence indicating that this medical condition prevents him from achieving maximal medical recovery of his accident-related injuries under the MIG. Although Dr. Khal Efala, orthopaedic surgeon, concluded that the applicant cannot be treated within the MIG due to his pre-existing condition in his chronic pain assessment report dated October 25, 2023, I place less weight on his opinion as he relies heavily on the applicant’s self-report, and there is a lack of objective medical evidence to support his findings.
14Further, as indicated in an insurer examination general practitioner assessment report dated August 6, 2021 completed by Dr. Michael Hanna, general practitioner, the applicant reported that prior to the accident, he was independent with all aspects of his personal care and housekeeping tasks, and he engaged in recreational activities like watching movies, and that following the accident, there were no changes to his personal care or housekeeping functions, and he continued to watch movies. Further, Dr. Hanna noted that while the applicant has pre-existing neck and back pain that may have been exacerbated in the subject accident, this is not expected to prevent the applicant from achieving maximal recovery from his accident-related injuries. Dr. Hanna opined that the applicant sustained temporary soft tissue impairments to his neck and back as a result of the accident, which typically resolve within 8 to 12 weeks.
15Also, while I acknowledge the applicant’s submissions that the respondent only requested Dr. Chiang’s clinical notes and records from a year prior to the accident to the date of the case conference and that these records were provided, it remains that the applicant has not tendered sufficient evidence to support his removal from the MIG based on a pre-existing medical condition.
16Considering the above, I find that the applicant has not provided compelling evidence that a pre-existing condition is preventing his maximal recovery under the MIG as required by s. 18(2) of the Schedule.
(b) Chronic Pain
17The applicant submits that he suffers from chronic pain as a result of the accident which warrants his removal from the MIG. He states that the MIG does not apply as he requires an extended period of rehabilitation to return to his pre-accident level of pain, function, and mobility. The applicant relies on Dr. Efala’s report. Dr. Efala diagnosed the applicant with post-traumatic cervical spine dysfunction with musculo-ligamentous injury, chronic pain of the neck, exacerbation of pre-existing neck pain, status post posterior cervical spine fixation, post traumatic lumbar spine dysfunction with musculo-ligamentous injury, and chronic pain of the back. Dr. Efala concluded that the applicant could not be treated within the MIG as he would likely require an extended period of rehabilitation to return to his pre-accident level of pain, function, and mobility. He further opined that the applicant’s back and neck complaints were related to the subject accident and that the applicant had reached maximal medical improvement.
18The respondent submits that there is no indication that the applicant’s chronic pain is related to the subject accident. The respondent states that Dr. Efala’s conclusion are unsubstantiated, noting that he did not review the clinical notes and records of any of the applicant’s treating doctors. Further, there is no contemporaneous medical evidence to substantiate the applicant’s alleged accident-related injuries and complaints. The respondent argues that there is no basis for Dr. Efala’s conclusion that the applicant suffers from chronic pain as a result of the accident.
19The respondent relies on Dr. Hanna’s report dated August 6, 2021. On examination, the applicant demonstrated a normal range of motion across all joints tested, he presented with tenderness to the cervical, thoracic, and lumbar regions, and his neurological examination was unremarkable. Dr. Hanna opined that from a physical perspective, the applicant sustained no more than sprain/strain type injury to his cervical, thoracic, and lumbar regions. There was no evidence of radiculopathy, myelopathy, or neuropathy. Dr. Hanna further concluded in his report dated August 12, 2022 that the applicant’s accident-related injuries are considered a “minor injury” as defined by the MIG, and that further facility-based treatment is not indicated for his accident-related injuries.
20I find that the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain as a result of the subject accident. Although the applicant has directed me to Dr. Efala’s report, for the reasons outlined above, I place less weight on Dr. Efala’s findings. While the applicant reported to Dr. Hanna that he consulted his family physician following the subject accident, the consultation notes have not been included in the evidentiary record, and according to the applicant, he did not undergo any diagnostic testing. Further, based on Dr. Hanna’s physical examination of the applicant conducted a few months following the accident, the applicant sustained myofascial sprain/strain of cervical, thoracic, and lumbar regions, superimposed on pre-existing reported injuries of the neck and back. Finally, the applicant has not directed me to contemporaneous medical records to support ongoing pain complaints related to the subject accident.
21Considering the above, the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
(c) Psychological Impairment
22The applicant submits that he suffers from a psychological impairment as a result of the accident which warrants his removal from the MIG, and he relies on the clinical notes and records of Dr. Chiang. In a treatment referral form dated April 9, 2021, Dr. Chiang indicated that the applicant had the following diagnoses: anxiety, depression, bereavement, MVA, neck fracture (ORIF), chronic pain, psychological trauma, and whiplash (with neurological signs). In a letter dated May 31, 2021, Dr. Chiang stated that the applicant suffers from depression, anxiety, extreme agitation, personality disorder, likely recurrent explosive disorder, MVA, severe neck fracture, resultant chronic pain, neck and arms, loss of range of motion in all spheres, and severe restriction of use of upper limbs and neck. In a psychiatry referral letter dated November 18, 2021, Dr. Chiang noted that the applicant suffered from a mood disorder, anxiety, depression, and PTSD.
23The applicant also directs the Tribunal to a consultation report dated May 17, 2021, completed by Sharlene Gumbs, social worker, indicating that the applicant was experiencing psychological and pain symptoms following the accident. Dr. Roger Singh, chiropractor, recommended that the applicant undergo a psychological assessment.
24In response, while the respondent acknowledges notations of a psychological condition by Dr. Chiang in his clinical notes and records, it submits that there is no indication in Dr. Chiang’s records that the applicant’s psychological impairment is due to the 2016 accident, the subject accident, or some other unrelated issue.
25I find that the applicant has not demonstrated on a balance of probabilities that he sustained a psychological impairment as a result of the accident. Although the applicant has directed the Tribunal to various notations of a psychological impairment, it remains that I have not been directed to any contemporaneous records indicating that the applicant’s impairment is because of the subject accident. Further, based on the medical evidence tendered, the applicant suffered from a psychological condition prior to the accident, and there is no indication that the applicant’s pre-existing psychological condition was exacerbated by the subject accident.
26Considering the above, the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
Non-earner Benefit
27I find that the applicant is not entitled to an NEB in the amount of $185.00 per week for the period of April 22, 2021 to April 20, 2023 as he has not demonstrated, on a balance of probabilities, that he suffers from a complete inability to carry on a normal life as a result of his accident-related injuries.
28Section 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 from a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
29Section 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 Mutual Insurance Company, 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.
30At the time of the accident, the applicant was unemployed and receiving financial support from the Ontario Disability Support Program. He was later incarcerated, due to an unrelated matter, and according to the adjuster’s log notes dated May 11, 2022, January 17, 2023, and December 11, 2022, he was at the very least incarcerated during the period of May 11, 2022 to February 22, 2024.
31The applicant submits that he is entitled to a NEB from April 22, 2021 to April 20, 2023. The applicant states that he did not receive a formal response from the respondent indicating the reasons for its denial of entitlement to a NEB following the provision of medical records and the chronic pain assessment report dated October 25, 2023. However, the applicant does not identify the date on which these records were provided to the respondent. The applicant further submits that according to the Disability Certificate (OCF-3) dated April 6, 2021 completed by Dr. Singh and Dr. Efala’s report, he is unable to engage in substantially all of the activities in which he ordinarily engaged in before the accident.
32In his report, Dr. Efala indicated that before the accident, the applicant was independent with self-care tasks and housekeeping chores, and recreationally, he was active with family and friends and enjoyed walking, sports, attending religious activities, socializing, and exercising. The applicant reported to Dr. Efala that since the accident, he has difficulty with prolonged standing, prolonged sitting, reaching, lifting, repetitive bending, crouching, heavy carrying, climbing, and heavy pushing and pulling. He also has difficulty with hygiene, grooming, climbing stairs or steps, and dressing and undressing. He further has difficulty with heavier household tasks including grocery shopping, meal preparation, cleaning, and laundry. The applicant has been unable to return to his pre-accident leisure, sports, and recreational activities.
33The respondent states that based on its insurer examination reports and the general lack of medical evidence demonstrating that the applicant suffers from any post-accident functional limitations, it submits that the applicant is not entitled to a NEB as he has not produced any evidence that he suffers from a complete inability to carry on a normal life as a result of the subject accident.
34According to an insurer examination occupational therapy assessment report dated July 22, 2021 completed by Angela Bertolo, occupational therapist, the applicant reported that he was independent with his personal care and housekeeping tasks, and that there was largely no change between his pre-accident and post-accident capabilities. On examination, the applicant demonstrated functional cervical and lumbar spine movements and bilateral upper and lower extremity range of motion and strength. He was observed to reach upper levels with both extremity and to reach lower levels by stooping, crouching/squatting, and kneeling. There were no apparent balance deficits observed. Ms. Bertolo concluded that the applicant demonstrated the functional ability to engage in his pre-accident normal activities of daily living.
35Further, in his insurer examination general practitioner assessment report dated August 6, 2021, Dr. Hanna concluded that the applicant did not suffer from a complete inability to carry on a normal life as a result of the subject accident. The applicant reported that he could complete his pre-accident personal care, and his housekeeping activities, and that he continued to engage in his pre-accident recreational activity of watching movies. The applicant reported that prior to the accident, he was independent with personal care tasks (including bathing, grooming, dressing, undressing, and toileting) and mobility tasks (including walking, transferring, climbing stairs, driving, riding in a car, using public transportation, sitting, standing, and reaching), he was independent with all housekeeping chores (including vacuuming, sweeping, bed making, garbage removal, and laundry) and outdoor home maintenance tasks (including gardening, grass cutting, and snow shoveling) despite exacerbation of his pre-existing pain to his neck, shoulders, and back. He also reported that he spent his days “smoking weed and watching movies with friends.” As for his post-accident activities, the applicant advised that he maintained his pre-accident function with personal care, mobility tasks, and household chores, and that he continues to spend his days “smoking weed and watching movies with friends.”
36I find that the applicant has not established on a balance of probabilities that he suffers from a complete inability to carry on a normal life as a result of his accident-related injuries. While Dr. Efala noted a change in the applicant’s pre-accident and post-accident function, I do not find Dr. Efala’s notation persuasive as he relies heavily on the applicant’s self-reporting and there is no indication that he relied on objective functional testing. Further, while his physical examination revealed that the applicant appeared to be in pain and distress, there is insufficient evidence to support that the applicant’s presentation is as a result of the subject accident.
37I prefer Dr. Hanna’s finding that the applicant does not suffer from a complete inability to carry on a normal life. According to Dr. Hanna’s report dated August 6, 2021, on examination, the applicant’s active range of motion testing of his cervical spine was normal, there was no pain reported, and the axial compression test was negative. Although there was some tenderness to his thoracic spine and lumbosacral spine, he had normal thoracic kyphosis and normal lumbar lordosis, and there was no swelling, erythema, atrophy, or deformity. There was no muscle spasm.
38I also find Ms. Bertolo’s findings persuasive. Based on her objective functional testing, the applicant’s accident-related injuries do not limit his ability to engage in his pre-accident normal activities of daily living.
39Accordingly, I find that the applicant has not demonstrated that he suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, he is not entitled to an NEB.
40Having determined that the applicant is within the MIG, the applicant is not entitled to the treatment plans in dispute as they propose treatment outside of the MIG and the $3,500.00 limit for minor injury.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
42Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant remains in the MIG and is not entitled to a NEB and the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
43For the reasons outlined above, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
The applicant is not entitled to a NEB.
The applicant is not entitled to the treatment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
44The application is dismissed.
Released: March 27, 2025
Ludmilla Jarda
Adjudicator