Licence Appeal Tribunal File Number: 23-003684/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:
Victoria Wood
Applicant
and
Belair
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Erin Neal, Counsel
For the Respondent:
Lee Wiseman, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Victoria Wood (the “applicant”) was involved in an automobile accident on October 22, 2020, 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 Belair 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:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to chiropractic services proposed by Upper James Wellness Clinic as follows:
(i) $1,782.48 in a treatment plan (“OCF-18) dated March 11. 2021; and
(ii) $1,782.48 in an OCF-18 dated September 2, 2021?
iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to the disputed OCF-18s or interest. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The respondent seeks to exclude the pre-accident records of the applicant’s family physician
4The applicant may rely on the pre-accident records of Dr. Rick Black (family physician).
5The respondent submits that the pre-accident records of Dr. Black were not produced prior to receiving the applicant’s written submissions for this hearing. The respondent argues that the untimely disclosure of this evidence prejudiced the respondent’s ability to have its own assessors review and comment on Dr. Black’s records. The respondent explains that this evidence should not be admitted to the hearing because it was not disclosed in compliance with the case conference report and order (“CCRO”) for this matter. The respondent further relies on Rule 9.4 of the October 2017 Common Rules of Practice and Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Common Rules”) to support its request to exclude Dr. Black’s pre-accident records from the proceeding.
6The applicant’s reply asserts that the pre-accident records of Dr. Black were provided to the respondent with the applicant’s case conference summary. The applicant therefore reasons there has been no prejudice to the respondent.
7I find the applicant’s evidence falls short of proving that Dr. Black’s pre-accident records were disclosed to the respondent at the time of the case conference. While I accept the applicant signalled that Dr. Black’s pre-accident records were key documents she intended to rely on at the hearing, her case conference summary indicates that these records—dated from October 22, 2019 to January 15, 2021—were provided to the respondent on October 22, 2020. This is problematic for two reasons: (1) I find, on balance, that it is unlikely medical records were disclosed to the respondent on the same day the accident occurred; and (2) how can medical records up to January 2021 be disclosed in October 2020? In my view, this evidence supports the respondent’s position that it never received Dr. Black’s pre-accident records prior to receiving the applicant’s written submissions for this matter.
8Common Rule 9.4 provides that a party needs the consent of the Tribunal to rely on a document that was not produced in compliance with the orders of the Tribunal. I find Common Rule 9.4 applies because the applicant’s disclosure of Dr. Black’s pre-accident records did not comply with the CCRO for this matter. The CCRO orders the parties to exchange all documents not previously disclosed, upon which they intend to rely at the hearing, no later than 60 days from the case conference held on November 20, 2023. The applicant produced Dr. Black’s pre-accident records on or about June 5, 2024, when it filed its written submissions.
9I nevertheless provide consent for the applicant to rely on the pre-accident evidence of Dr. Black. While I recognize the respondent opposes the admission of this evidence—and agree that the respondent had little to no knowledge of the substance of Dr. Black’s pre-accident records prior to receiving the applicant’s written submissions—I find the applicant would be more disadvantaged than the respondent if I excluded this evidence because the onus falls on the applicant to prove her claim. Further, I am persuaded these records are presumptively relevant because the applicant is contesting the MIG on the basis of a pre-existing condition. I also considered that the respondent’s objection to Dr. Black’s pre-accident records is, in my view, untimely, given that it was aware the applicant intended to rely on this evidence at the time of the case conference.
The respondent seeks to exclude all or part of the applicant’s submissions due to non-compliance with the Tribunal’s orders
10I consent to admitting the applicant’s additional written submissions, but not in their entirety.
11The respondent submits that the applicant’s written submissions do not comply with the CCRO. Specifically, the respondent says the applicant exceeded the page limit by four pages and expanded the page margins. The respondent requests that the Tribunal not consider the applicant’s submissions, or alternately, strike pages six to nine. The respondent relies on Ali v. The Co-operators General Insurance Company, 2023 CanLII 15047 (ON LAT); and A.Y. v. Aviva, 2019 CanLII 119734 (ON LAT) to support its position. In both decisions, the Tribunal struck the pages that exceeded the limit ordered at the case conference because the offending party did not seek permission to file additional pages of submissions.
12The applicant argues in her reply that the respondent has not made any requests regarding the adjudication of the written hearing and did not file a motion at the time it received the applicant’s submissions. The applicant adds that the respondent has not addressed any prejudice arising from the applicant’s submissions, and reasons that it would be procedurally unfair to exclude her submissions beyond page five because the page count is only two pages in excess of the ordered limit once footnotes and excerpts are removed. The applicant points to 21 comments in the margins of the respondent’s submissions that would take the page count beyond five if incorporated into the body of its submissions. The applicant relies on Elkhidir v Intact Insurance Company, 2023 CanLII 1449 (ON LAT); and Caprio v. Travelers Canada, 2023 CanLII 44304 (ON LAT) to support her position. In both decisions, the Tribunal declined to strike submissions that exceeded the page limit ordered at the case conference because the non-offending party failed to show it was prejudiced by the additional submissions.
13I agree that for this matter, the applicant’s written submissions do not comply with the CCRO. They exceed the five-page limit ordered by the Tribunal. However, I also agree that the respondent’s submissions did not voice any prejudice arising from the applicant’s non-compliance.
14While I am not bound by the authorities cited by the parties, I find that both the applicant’s and the respondent’s cases present cogent reasoning.
15On one hand, I agree that the parties are required to comply with the Tribunal’s orders. Section 23(1) of the Statutory Powers Procedure Act (“SPPA”) provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. Thus, the Tribunal’s orders support procedural fairness by ensuring a clear and shared understanding of procedural expectations. In this case, I find the applicant ignored the orders of the Tribunal as they pertained to the length of her submissions. She filed submissions that were almost double the ordered page limit and led no evidence of filing a request to increase the page limit prior to the hearing. There is no indication in the CCRO that she did not consent to the five-page limit ordered by the Tribunal. The applicant’s reply offers little insight or explanation as to why she submitted the extra pages.
16On the other hand, I agree that the prejudicial effect of a party’s non-compliance with the Tribunal’s orders should weigh on a decision to admit or exclude evidence. In this case, the respondent’s arguments do not address any disadvantage it may have faced because the applicant submitted four additional pages of submissions.
17Considering all this, I am persuaded to admit some, but not all of the applicant’s submissions. I find that allowing the applicant’s submissions to proceed in their entirety would render the Tribunal’s orders meaningless, condone abuse of process, and thereby limit the Tribunal’s ability to ensure procedural fairness for the parties. As such, I order that only those aspects of the applicant’s submissions that address the issues on-the-merits be admitted. In my view, this is procedurally fair because both parties have submitted arguments and evidence on all the issues in dispute. This means I will consider up to paragraph 27 of page 3, paragraphs 42 to 45 that straddle pages 5 and 6, and paragraphs 55 to 78 on pages 6-9. Substantively, this roughly amounts to just over five pages.
18For clarity, I decline to admit the applicant’s procedural arguments on the sufficiency of the respondent’s OCF-18 denial notices. These submissions roughly comprise three- and a-half pages, starting at paragraph 28 and—excepting paragraphs 42 to 45—concluding at paragraph 54. In my view, this is procedurally fair because the applicant’s procedural arguments substantively constitute almost all the four extra pages she filed as part of her submissions. In contrast, the respondent did not address the sufficiency of its denial notices in the five pages of submissions it filed.
19I would also point out here, that I decline to consider the margin notes in the respondent’s’ submissions because this formatting is inconsistent with the CCRO for this matter.
ANALYSIS
The applicability of the MIG
20Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”
21The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from her accident-related injuries if kept in 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.
22For this matter, the applicant seeks MIG removal on the basis of a pre-existing condition and chronic pain. She also submits that her ongoing reports of pain, continuous treatment and investigations, and diagnostic findings are sufficient evidence to remove her from the MIG.
The applicant has not shown her injuries fall outside the MIG
23The evidence in this case does not establish that the applicant’s accident-related injuries fall outside the MIG. Her submissions describe accident-related injuries that include headaches, numbness, and pain in her neck and both shoulders. She attributes ongoing complaints of pain and functional impairments to these injuries.
24The respondent’s MIG-related submissions do not directly address whether the applicant sustained physical injuries that are inconsistent with the MIG.
25I find the applicant’s description of her impairments is harmonious with the January 2021 disability certificate (“OCF-3”) completed by Jaspreet Kaur (physiotherapist), which identifies injuries consistent with a minor injury as defined by the Schedule (i.e., sprains and strains to the applicant’s spine, shoulder, and elbow as well as headaches). The applicant’s submissions point to corresponding complaints of injuries in Dr. Black’s medical records of October 2020, March 2021, and October 2021 that, similarly, do not support removal from the MIG.
26However, these records also indicate complaints of hand and arm numbness that the applicant attributes to cervical radiculopathy (i.e., nerve compression or pinching). I did not place much weight here because I disagree that the medical evidence distinguishes her numbness from mere sequalae of her accident-related sprains and strains. The applicant points to an undated requisition for a nerve conduction study made by Dr. Black that, according to the applicant, offers a clinical diagnosis of cervical radiculopathy. In my view, it is not clear whether Dr. Black is offering this diagnosis or whether he is attributing radiculopathy to a previous electromyography (“EMG”) study. The applicant did not point me to a supporting entry in Dr. Black’s clinical notes and records that confirms he diagnosed radiculopathy. In fact, the entry made on March 1, 2021, which discusses the possibility of an EMG referral, does not confirm this diagnosis, and instead indicates a discussion was had as to whether the applicant’s numbness was an outcome of muscle tension or nerve root impingement. From this, I conclude that Dr. Black’s referral was querying radiculopathy as opposed to diagnosing it.
27In any event, the applicant’s submissions indicate that the EMG study, conducted in September 2021, revealed the possibility of a rotator cuff tear or strain. The applicant’s submissions stop short of confirming the EMG found evidence of radiculopathy, and she did not point to this report in her evidence brief.
28While the December 2021 diagnostic scan of the applicant’s shoulders confirmed bi-lateral tendonitis and a low-grade, partial thickness tear of a right shoulder tendon, I find these injuries too are consistent with the Schedule’s definition of a minor injury because partial tears are not sufficient to warrant MIG removal. In June 2023, Dr. Amir Naeeni, who the applicant identifies as her family physician from late 2022 onwards, performed a physical examination that determined the applicant’s median, ulnar, and radial nerves (i.e., nerves of the forearm, wrist, and hand) were intact despite ongoing complaints of finger numbness and radiating arm pain. Dr. Naeeni does not query radiculopathy in this entry, and I find the results of his examination diminish the applicant’s MIG claim because they do not support radiculopathy. A follow-up x-ray of the applicant’s shoulder in September 2023, which left an impression of acromioclavicular (“AC”) joint strain, further persuaded me that her injuries fall within the scope of strain and sprain type impairments that fall within the MIG.
29The applicant did not point to evidence of injuries that fall outside the MIG in her treatment records, so I find this evidence was of little assistance to her MIG position.
30Taken together, I am persuaded this evidence shows, on balance, that the MIG continues to apply to the applicant’s claim.
Pre-existing condition
31I find the applicant is not eligible for MIG removal owing to a pre-existing medical condition.
32The applicant submits that Dr. Black’s pre-accident records provide compelling evidence of a pre-existing condition that includes chronic neck issues and a sore neck and shoulder related to a 2011 accident, hand paresthesia (i.e., abnormal sensation), headaches, and slight kyphosis in her cervical spine (i.e., excessive forward rounding of the upper back). The applicant also claims a left ankle sprain from a 2018 workplace accident.
33The respondent argues that the applicant’s pre-existing medical conditions are not in close proximity to the accident, and that the applicant’s Ontario Health Insurance Plan (“OHIP”) records show no physician visits between March 11, 2020, and September 8, 2020.
34While I find that Dr. Black’s records meet the first part of the pre-existing condition test, in that they provide compelling evidence of a pre-existing medical condition that was documented by a health practitioner before the accident, I find the applicant has not established the second part of the test at section 18(2) of the Schedule. This is because the applicant’s submissions do not point me to a medical opinion by a health practitioner that determines maximal recovery of her accident-related injuries under the MIG is prevented by the pre-existing medical conditions documented by Dr. Black prior to the accident.
35I therefore find the applicant is not eligible to be removed from the MIG on this basis.
Chronic pain
36I find the applicant has not demonstrated she sustained accident-related chronic pain with functional impairment.
37To demonstrate she should be removed from the MIG, the applicant must show she sustained chronic pain with functional impairment that is more than sequalae from her accident-related injuries. The Tribunal has held that chronic pain syndrome—or pain that is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain—qualifies as chronic pain [see, for e.g., 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT); 16-000438 v The Personal Insurance Company, 2017 CanLII 595151 (ON LAT); and Pham v. Coseco Insurance, 2021 CanLII 43546 (ON LAT)].
38The applicant submits that she continues to suffer accident-related symptoms four years removed from the accident. She specifically points to a March 2024 section 44 Insurer’s Examination (“IE”) by Dr. Charanjit Sandhu (physician) to show she continues to experience headaches, constant pain in her neck, shoulders, right wrist, and mid and low back that is causing functional impairments in her right hand and right shoulder. The applicant relies on Zeledon v Aviva Insurance Company, 2022 CanLII 124642 ON LAT (“Zeledon”) to show a formal diagnosis of chronic pain is not required to warrant removal from the MIG.
39The respondent argues that the mere presence of ongoing pain is insufficient, in and of itself, to justify MIG removal. Speaking specifically to the applicant’s pain, the respondent submits it is not severe enough to qualify as chronic pain as evidenced by the applicant’s own reports that she can independently perform her activities of daily living and light housekeeping tasks. The respondent relies on R.J. v. Pembridge, 2020 CanLII 80289 ON LAT (“R.J.”) to show that objective clinical data corroborating the intensity of the reported pain, or indicating treatment measures are insufficient to control the pain, is required to prove chronic pain.
40I accept that the applicant continues to experience pain from accident-related injuries. Complaints of pain are evident throughout the records of Drs. Black and Naeeni, and Dr. Sandhu commented that the applicant’s presentation was consistent with residual symptoms of myofascial sprains and headaches. However, it does not automatically follow that this constitutes chronic pain that justifies removal from the MIG. I disagree that the applicant’s pain constitutes a severe and debilitating condition that is distinct from ongoing or recurring pain because I was pointed to little evidence of functional impairment.
41The applicant’s chronic pain submissions do not reference evidence of impairment arising from accident-related chronic pain in the records of Drs. Black and Naeeni. Rather, she relies heavily on the section 44 IE report of Dr. Sandhu to prove functional impairment, and specifically his observations that the applicant had weakness in her right finger extensors and restrictions in the range of motion of her right shoulder. However, I find that when Dr. Sandhu considers the severity of these impairments, he concludes that the applicant does not have any accident-related pathology or impairment of sufficient scope to warrant ongoing facility-based treatment. In my view, Dr. Sandhu’s opinion does not support a severe and debilitating condition when considered in concert with: (1) a lack of corroborating impairment evidence from the applicant’s primary care providers; (2) a pharmacy summary that shows only three 14-day prescriptions for Naproxen between October 2020 and June 2023; and (3) the applicant’s disclosure to Dr. Sandhu that she continues to independently perform all her daily living activities—with the exception of requiring occasional assistance with hair grooming—and light housekeeping with reduced pacing and more frequent breaks.
42In summary, I find the applicant has not met her burden to demonstrate that she has chronic pain with functional impairment where there is limited objective evidence that she sustained anything more than a minor injury, where she continues to lead a largely independent life, where her pain appears to be manageable without regularly taking medication, and where the bulk of the medical evidence points to little functional impairment. I therefore decline to remove the applicant from the MIG owing to chronic pain.
Entitlement to the disputed OCF-18s
43I find the applicant is not entitled to the disputed OCF-18s.
44To receive payment for an OCF-18 under 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.
45The applicant submits that the disputed OCF-18s are reasonable and necessary because sections 15 and 18 of the Schedule require payment of incurred expenses, and because the medical records show she continued to regularly attend treatment after the accident. The applicant adds that both OCF-18s aim to increase her range of motion, strength, and ability to participate in activities of daily living, which is supported by Dr. Sandhu’s recommendations.
46The respondent argues that insufficient medical documentation has been provided by the applicant to show the disputed OCF-18s are reasonable and necessary. The respondent relies on Dr. Sandhu’s opinion that the OCF-18s are not reasonable and necessary.
47Given that the applicant remains in the MIG, and that the respondent identifies that $3,439.17 of the $3,500.00 MIG limit has been exhausted as of November 10, 2023, I find it unnecessary to address the reasonableness and necessity of the disputed OCF-18s as the MIG has essentially been exhausted.
Interest
48Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Interest does not apply in this case because there are no overdue benefits.
Award
49The respondent is not liable to pay an award.
50The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
51The applicant submits that the respondent’s conduct demonstrates it unreasonably denied the disputed OCF-18s because it failed to continually adjust the file by failing to review incoming medical records that should have triggered a review of its earlier decisions. The applicant goes on to say the respondent blindly relied on Dr. Sandhu’s reports and ignored both the medical evidence and opinions of the applicant’s family physicians and other treating providers.
52The respondent argues that it approved medical and rehabilitation benefits up to the MIG limits, and therefore has not unreasonably withheld or delayed payment of benefits.
53As there are no benefits owing in this case, it follows that the respondent has not unreasonably withheld or delayed any payments and is therefore not liable to pay an award.
ORDER
54The applicant remains in the MIG and is not entitled to the disputed OCF-18s or interest. The respondent is not liable to pay an award.
55The application is dismissed.
Released: April 2, 2025
Michael Beauchesne
Adjudicator