Citation: Lawrence v. Economical Insurance, 2025 ONLAT 23-011248/AABS

Licence Appeal Tribunal File Number: 23-011248/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:

Leston Lawrence

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Michael Adamek, Counsel

For the Respondent: Marcus Rozsa, Counsel

HEARD: By way of written submissions

OVERVIEW

1Leston Lawrence, the applicant, was involved in an automobile accident on December 1, 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 the respondent, Economical Insurance, 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 s. 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 $4,566.93 for physiotherapy services, proposed by Physiocare Physio Centre in a treatment plan dated March 24, 2022?

iii. Is the applicant entitled to $1,731.25 for an occupational therapy safe discharge service, proposed by Functionability in a treatment plan dated November 6, 2023?

iv. Is the applicant entitled to $1,736.16 for an occupational therapy in-home assessment, proposed by Functionability in a treatment plan dated November 6, 2023?

v. Is the applicant entitled to attendant care benefits in the amount of $1,571.93 per month from January 30, 2024, to date and ongoing?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

3The applicant sustained a minor injury as defined in s. 3 of the Schedule and is accordingly subject to the MIG.

4The applicant is not entitled to the treatment plans in dispute, attendant care benefits, interest, or an award.

ANALYSIS

Application of the Minor Injury Guideline

5I find that the applicant has not met his burden of proving, on a balance of probabilities, that he should be removed from the MIG.

6Section 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.”

7An insured 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. In all cases, the burden of proof lies with the applicant.

8The applicant submits that he sustained injuries to his right shoulder in the accident that required surgical intervention, including a chondral defect on the humeral head, and that those injuries do not fall within the MIG. The respondent submits that the applicant’s right shoulder injuries were not caused by the accident.

9The applicable test in determining causation is the “but for” test: whether the applicant would have had the impairments but for the subject accident. The burden is on the applicant to prove, on a balance of probabilities, that the subject accident was a “necessary cause” of his impairments (Sabadash v. State Farm et al., 2019 ONSC 1121).

10The applicant relies on a letter from Dr. Peter Lapner, his treating orthopaedic surgeon, from January 12, 2024. Dr. Lapner was asked to opine on the connection between the accident and the applicant’s right shoulder injury, and he indicated that surgery was necessary due to a lesion sustained as a result of a car crash. He noted the following:

Mr. Lawrence suffered an injury to his right shoulder. The injury was very distinctive in that the chondral defect that he sustained on his humeral head is a rare lesion that requires a significant amount of force, applied in a particular direction, to produce. This lesion was very much in keeping with the shoulder being struck with high force against something hard such as would occur in a car crash. […] The likely cause as described above was the car crash. Given that a) there was no other history of injury and b) I have very rarely seen this type of pathology associated with a more conventional mechanism of injury, I feel strongly that it is highly unlikely that that [sic] there is an alternative explanation for the pathology.

11The respondent submits that the applicant did not complain of right shoulder pain until December 5, 2022, when he indicated to Dr. Peter Baranick, family physician, that he had been experiencing right shoulder pain for one month. Dr. Baranick’s note from that date also indicates that this pain was work-related. The applicant has not pointed to any clinical note prior to December 5, 2022, that mentions right shoulder pain. The applicant visited Orleans Urgent Care Clinic, Dr. Baranick at Appletree Medical Group, and Physiocare. The notes from those clinics prior to December 5, 2022, mention left shoulder pain, neck pain, and back pain, but not the applicant’s right shoulder. Upon referral from Dr. Baranick, he visited Dr. Emad Habib, family physician, on March 4, 2022. Dr. Habib’s note does not mention the applicant’s right shoulder. In addition, the applicant wrote in an OCF-1 dated December 9, 2020, that he sustained injuries to his left shoulder, neck, and low back in the accident. He did not mention his right shoulder. An OCF-3 from November 26, 2021, completed by physiotherapist Mehul Patel, similarly does not mention right shoulder pain.

12The applicant also underwent a s. 44 assessment with Dr. Pankaj Eric Bansal, general practitioner, on May 6, 2022. He reported experiencing neck pain, particularly on the left side, and low back pain. He did not mention right shoulder pain to Dr. Bansal, and his shoulder active range of movement was full bilaterally on assessment without mention of pain or discomfort. Dr. Bansal diagnosed the applicant with soft tissue type injuries to his neck and back.

13Dr. Lapner’s opinion with respect to causation appears to be based on the applicant’s self-reporting, and is not corroborated by the contemporaneous medical records before me. Dr. Lapner noted on September 29, 2023, that there was no past medical history on file, and his letter of January 12, 2024, does not mention a review of medical documentation. The applicant did not report his right shoulder pain to any practitioner until two years after the accident, and the note from December 5, 2022, indicates that the onset was only one month prior. Dr. Lapner did not explain why the applicant would not have experienced issues with his right shoulder for two years, especially given the severity of the injury. Further, the applicant has not provided any insight or clarification with respect to whether his right shoulder injury was work-related, as indicated by Dr. Baranick. A workplace injury was not mentioned by Dr. Lapner, and he did not explain why the motor vehicle accident would have been the only cause of the injury if the applicant injured his shoulder at work. I am therefore not persuaded by Dr. Lapner’s opinion with respect to causation.

14The applicant underwent another s. 44 assessment on April 4, 2024, with Dr. David Simon, orthopaedic surgeon. Dr. Simon reviewed the medical documentation prior to December 2022, including the records of Dr. Baranick and Physiocare. He indicated that the type of shoulder injury the applicant sustained is pathognomonic for an episode of shoulder instability, for example frank dislocation of the shoulder. However, he noted that there was nothing in the records that suggested an episode of acute shoulder instability or dislocation arising from the accident. I prefer Dr. Simon’s opinion to Dr. Lapner’s, as he took into account the medical documentation and the applicant’s complaints prior to the December 5, 2022, visit with Dr. Baranick.

15For the reasons above, I find that the applicant has not proven, on a balance of probabilities, that his right shoulder injuries were caused by the accident.

16I note that the applicant does not make an argument that he should be removed from the MIG for any reason other than his right shoulder injuries. He appears to have sustained a whiplash associated disorder and sprains and strains as a result of the accident. He does not argue that he suffers from a psychological impairment or chronic pain with functional impairment. I accordingly find that the applicant has not met his burden to prove, on a balance of probabilities, that he sustained an accident-related injury that would remove him from the MIG.

17The parties agreed at the case conference on March 12, 2024, that the MIG limits have been exhausted. As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

Attendant Care

18As I have determined that the applicant has not demonstrated that he should be removed from the MIG, pursuant to s. 14(2) of the Schedule, an analysis of whether he is entitled to attendant care benefits is not required.

Interest

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, interest is not applicable.

Award

20The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As no benefits are payable, the respondent is not liable to pay an award.

ORDER

21The applicant sustained a minor injury as defined in s. 3 of the Schedule and is accordingly subject to the MIG.

22The applicant is not entitled to the treatment plans in dispute, attendant care benefits, interest, or an award.