Citation: Williams v. Economical Insurance Company, 2025 ONLAT 23-001560/AABS

Licence Appeal Tribunal File Number: 23-001560/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:

Patricia Williams

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Sulakshana Kumar, Paralegal

For the Respondent:

Colin MacDonald, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Patricia Williams, the applicant, was involved in an automobile accident on October 12, 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 the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. 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”)?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 10, 2019, to November 10, 2021?
3. Is the applicant entitled to $1,350.00 for chiropractic services, proposed by Life Chiropractic and Wellness Centre in a treatment plan submitted April 1, 2021?
4. Is the applicant entitled to $2,530.00 for a psychological assessment, proposed by Complete Rehab Centre in a treatment plan submitted March 3, 2023?
5. Is the applicant entitled to $1,700.00 for physiotherapy services, proposed by Life Chiropractic and Wellness Centre in a treatment plan submitted March 2, 2023?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s accident-related impairments do not warrant removal from the MIG; ii. The applicant is not entitled to the treatment plans in dispute, or interest; iii. The applicant is not entitled to a non-earner benefit for the period in dispute; and iv. The respondent is not entitled to costs.

ANALYSIS

Minor Injury Guideline

4Section 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.”

5An 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. In all cases, the burden of proof lies with the applicant.

6The applicant submits that she should be removed from the MIG on the grounds of chronic pain, pre-existing conditions and psychological impairment.

The applicant has not established chronic pain warranting removal from the MIG

7The applicant submits that she has sustained chronic pain as a result of the accident. She relies on the clinical notes and records (“CNRs”) of her family physician Dr. Michael Mak and her chiropractic clinic, to argue that in the years post-accident she continued to report neck and lower back pain. The applicant also submits a s. 25 chronic pain assessment report dated February 25, 2021. In this report Dr. Grigory Karmy diagnosed the applicant with chronic mechanical neck, lower back, and right wrist pain, chronic pain syndrome, sleep disorder and a possible mood disorder.

8The respondent argues that the mere presence of pain symptoms over a period of time does not establish chronic pain warranting removal from the MIG. Rather, the applicant must also demonstrate functional impairment as a result of the pain symptoms. It submits that the applicant has not established that her pain symptoms are functionally disabling. The respondent further argues that Dr. Karmy’s report does not address causation with respect to the applicant’s back pain, particularly the July 14, 2021, X-ray of the lumbar spine revealing mild scoliosis and degenerative changes and the April 14, 2022 diagnostic imaging which confirmed osteoporosis in the applicant’s lumbar spine. It relies on the s. 44 orthopaedic assessment of Dr. Weisleder, who found that the applicant had sustained only minor strain and sprain type injuries as a result of the accident.

9I find that the applicant has not met her onus to prove pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.

10The applicant relies in part on the CNRs of Dr. Mak, however, I do not find that they establish chronic back pain as a result of the accident. The applicant’s first report to her family physician of accident-related back pain was eight months post-accident on June 29, 2020. In the following years, despite attending her doctor’s office regularly for a variety of unrelated medical reasons, the applicant only reported back pain symptoms intermittently. The applicant twice reported back pain to her family doctor in 2021, and once in 2022. On June 3, 2022, the applicant reported that she had felt back pain “intermittently” over the past few months. The applicant did not report pain symptoms again until a year later on June 14, 2023, when she reported that her back pain had been worsening over the past while, mainly with doing chores.

11The CNRs of Dr. Mak further reveal that the applicant was not prescribed any prescription pain medication either initially, or in the years post-accident, nor was she referred to pain specialists. While diagnostic imaging was ordered, it revealed degenerative changes and osteoarthritis, neither of which have been linked to the accident. The applicant further does not direct me to any chronic pain diagnosis by her treating physician. Rather, Dr. Mak consistently diagnosed only “back strain” and encouraged daily stretches.

12The applicant relies in large part on the s. 25 chronic pain assessment report of Dr. Karmy. However, I agree with the respondent that Dr. Karmy did not have the opportunity to review the 2021 and 2022 diagnostic imaging, which revealed degenerative changes and osteoarthritis in the lumbar spine. The respondent asserts that given the results of the diagnostic imaging, Dr. Karmy would likely not have concluded that the applicant’s pain symptoms were caused by the accident.

13The applicant similarly relies in large part on the s. 25 chronic pain assessment report to establish functional restrictions due to chronic pain. She refers to Dr. Karmy’s references to her self-reports of being unable to perform housekeeping and home maintenance tasks, play with her grandchildren or return to leisure activities such as gardening. However, I note that the applicant did not report such functional restrictions to her treating chiropractic clinic. The CNRs of Life Chiropractic and Wellness Centre include neck and back pain disability questionnaires. With respect to her neck pain, the applicant reported that she could do most of her usual work and that she was able to engage in all of her recreational activities, with some pain in her neck. With respect to her back pain, the applicant did not report being unable to complete her usual tasks. Rather, the applicant reported avoiding only “heavy jobs” around the house.

14I further am not persuaded by the applicant’s argument that Dr. Karmy’s s. 25 assessment must be accepted, as there is no “opposing assessment” for chronic pain. The applicant cites the Tribunal decision Raja-Mohamad v The Personal Insurance Company, 2022 CanLII 33191 (ON LAT) in arguing that where there is no competing medical opinion, the Tribunal is not to scrutinize diagnoses made by medical professionals. However, I find that the decision cited by the applicant is distinguishable from the present matter. In Raja-Mohamad, the insurer did not conduct any s. 44 assessments to rebut the claimant’s reports. In the present matter, the respondent conducted orthopedic, psychological and occupational therapy assessments. Although the s. 44 occupational assessment was conducted with respect to the non-earner benefit, it considered in detail the applicant’s functional abilities. The orthopedic assessment considered the applicant’s back, neck and shoulder strain. As such, in the present matter, competing assessments were provided by the respondent.

15As such, I do not find that the medical evidence establishes sufficient functional impairment due to chronic pain to warrant removal from the MIG.

The applicant is not removed from the MIG due to her pre-existing condition

16The applicant submits that her pre-accident lower back pain was significantly aggravated as a result of the accident. As such, she argues that she should be removed from the MIG on the basis of a pre-existing condition. The applicant relies on Dr. Karmy’s s. 25 report, who noted that the applicant’s pre-accident lower back pain had been aggravated by the subject accident, and as such, she could not recover within the MIG. In contrast, the respondent’s s. 44 assessor Dr. Weisleder found that despite her pre-accident residual back pain, the applicant did not have a pre-existing condition that prevented her recovery within the MIG.

17I find that the applicant has not established that she should be removed from the MIG due to a pre-existing condition. From my review of the medical record, the applicant only reported mild, residual back pain prior to the accident. The only references to pre-accident back pain in Dr. Mak’s CNRs were in May and June 2017, when the applicant reported lifting something heavy at home, and hurting her lower back. She reported that she had been in an accident years before. However, for the year prior to the subject accident, the applicant did not appear to have any lower back pain complaints.

18Although the applicant submits that the accident significantly aggravated her residual back pain, the applicant did not report back pain symptoms in her initial visit post-accident in October 2019. Rather, the first complaint of back pain was eight months later in June 2020. In the following years, in some visits to the doctor the applicant did not link her back pain to the accident. In her June 29, 2021 visit, the applicant reported her back pain was worsening “over the past month” with no trigger. Back pain was not reported again until June 3, 2022, where the applicant reported back pain “intermittently over the past two months”. I do not find that the medical record establishes that the applicant’s mild, residual back pain was significantly aggravated by the accident.

19As such, I do not find that the applicant has established that her pre-accident condition establishes a basis for removal from the MIG pursuant to s. 18(2) of the Schedule.

The applicant has not established a psychological impairment warranting removal from the MIG

20I further find that the applicant has not established an accident-related psychological impairment. The applicant points to her reports of psychological symptoms to the respondent’s s. 44 psychological assessor. In her s. 44 psychological report, Dr. Sharleen McDowall noted the applicant’s reports of some symptoms of depression and anxiety.

21However, I agree with the respondent that despite these reported symptoms, Dr. McDowall found that they were in the subclinical range and did not warrant a DSM-5 diagnosis or a removal from the MIG. In coming to her conclusion, Dr. McDowall conducted a clinical interview and psychological testing including the Beck Depression Inventory-II and Beck Anxiety Inventory. Moreover, I note that Dr. McDowall’s findings of no psychological impairment are corroborated by the medical record.

22The CNRs of Dr. Mak do not reveal any accident-related psychological diagnosis or referral for psychological treatment. Although the applicant intermittently reported insomnia and had been prescribed Zopiclone post-accident, she similarly had reported insomnia and had been prescribed Zopiclone pre-accident. From my review of the medical record, despite attending at her family physician’s regularly in the years post-accident, the applicant did not report any other psychological symptoms to Dr. Mak.

23As such, I find that the applicant has not established an accident-related psychological impairment warranting removal from the MIG.

24As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.

Non-Earner Benefits

25I find that the applicant has not established entitlement to non-earner benefits (“NEBs”).

26Section 12(1) of the Schedule 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 a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

27To establish her claim to NEBs, the applicant relies on an October 14, 2020, Disability Certificate (“OCF-3”) prepared by her chiropractor Dr. Sukhvinder Bhullar. Dr. Bhullar found that the applicant did suffer from a complete inability to carry on a normal life. She further cites Dr. Karmy’s chronic pain report, where he noted the applicant’s self-reports of being unable to perform most of her housekeeping activities, take care of her grandchildren, or engage in her hobbies. The applicant also argues that the CNRs of her family physician Dr. Mak establish her serious injuries as a result of her accident and her complete inability to carry on a normal life. Finally, the applicant argues that the respondent’s assessor Dr. Weisleder did not provide any opinion with respect to NEB entitlement, and as such, NEBs must be found payable.

28The respondent submits that it conducted three s. 44 assessments on the issue of NEBs – an orthopedic assessment, a psychological assessment and an in-home occupational therapy assessment. All of its assessors concluded that the applicant did not suffer from a complete inability to carry on a normal life.

29I find that the applicant has not established that she is continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

30Although the applicant relies in large part on her reports to Dr. Karmy of being unable to perform most of her housekeeping activities, take care of her grandchildren or engage in her hobbies, as previously noted, these reports differed from those provided to her chiropractic clinic. The applicant reported to her treating clinic that with respect to her neck pain, she could do most of her usual work and that she was able to engage in all of her recreational activities, with some pain in her neck. With respect to her back pain, the applicant did not report being unable to complete her usual tasks. Rather, the applicant reported avoiding only “heavy jobs” around the house. I do not find that these reports support a complete inability to carry on a normal life. Further, although the applicant relies on the OCF-3 from Dr. Bhullar, I note that in this certificate the anticipated duration of the disability was only noted to be 5-8 weeks.

31The applicant has not directed me to any other evidence to support a complete inability to carry on a normal life. From my review of Dr. Mak’s CNRs, they do not reveal reports of significant functional restrictions or reports of an inability to complete daily tasks. As such, I find that the applicant has not established entitlement to NEBs.

Costs

32Although costs were not identified as an issue in dispute in the Case Conference Report and Order dated October 13, 2023, both parties have provided submissions on costs.

33The respondent submits that it is entitled to costs as a result of the applicant’s frivolous and vexatious behaviour. It argues that the applicant had previously filed a different application (“first application”) with the Tribunal containing exactly the same issues as were heard at the present hearing. However, the applicant did not attend the first case conference that was scheduled in that matter and then unilaterally withdrew the first application in a subsequent case conference. Nine months later the applicant filed the present application, with identical issues in dispute.

34The respondent argues that the unilateral withdrawal and reapplication is frivolous and vexatious. It argues that the purpose of the withdrawal of the first application was either to delay the hearing of the matter due to lack of preparedness or was an effort to drive up costs for the respondent and motivate a settlement. It requests $1,000.00 for the attendance at the case conference and $1,000.00 for the hearing.

35The applicant submits that the issue of costs should not be addressed in this hearing, since the respondent has filed a separate costs application, with file no. 23-012680/AABS (“costs application”). A case conference was held with respect to the costs application, and the respondent was to have filed submissions by June 7, 2024, which it failed to do. The applicant argues that the costs application should be dismissed for want of prosecution, and that the respondent is improperly raising the issue of costs in the present hearing after failing to follow through with its costs application.

36The applicant further relies on two Tribunal decisions, H. A-R v Aviva Insurance, 2017 CanLII 76929 (ON LAT) and Gomes v Aviva General Insurance, 2020 CanLII 103483 (ON LAT). In these decisions, the Tribunal found that a last-minute withdrawal of an application and the re-filing of a new application did not warrant costs.

37The respondent’s request for costs is denied. From the evidence, it appears that both parties have initiated applications, which they subsequently withdrew. The applicant filed her first application for essentially identical issues on June 29, 2021, and withdrew it at the second case conference on May 27, 2022, then re-filed the current application. The respondent filed its own costs application on October 23, 2023, which it withdrew on June 6, 2024, before filing its written hearing submissions. Although the respondent did not re-file a costs application, it is re-introducing the issue of costs as part of the current hearing. Given that both parties have engaged in the same behaviour, I do not find that either party has been prejudiced by the filing, withdrawal and reintroduction of issues in dispute.

38Moreover, I agree with the decisions cited by the applicant, that the withdrawal of an application alone will rarely be a sufficient basis for costs. The Tribunal has previously held that access to justice is a central mandate of the Tribunal, and as such, costs will not be awarded merely because a withdrawal causes another party inconvenience. I agree with this reasoning and note that the respondent has not established behaviour that is unreasonable, frivolous, vexatious or in bad faith. I find that costs are not warranted.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

ORDER

40I find that:

i. The applicant’s accident-related impairments do not warrant removal from the MIG; ii. The applicant is not entitled to the treatment plans in dispute, or interest; iii. The applicant is not entitled to NEBs; and iv. The respondent is not entitled to costs.

41The application is dismissed.