Hughes v Intact Insurance Company

Tribunals Ontario

Tribunaux décisionnels Ontario

Licence Appeal Tribunal

Tribunal d'appel en matière de permis

Citation: Hughes v. Intact Insurance Company, 2022 ONLAT 20-004212/AABS - M

Licence Appeal Tribunal File Number: 20-004212/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of

the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Brian Hughes

Applicant

and

Intact Insurance Company

Respondent

MOTION AND HEARING ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Louis DelSignore Jr, Counsel

Shannon Mulholland, Counsel

By way of written submissions

For the Respondent:

Motion and hearing heard:

REASONS FOR DECISION AND ORDER

BACKGROUND

[1]

The applicant was injured in an automobile accident on June 16, 2019 and

sought benefits pursuant to the Statutory Accident Benefits Schedule Effective

September 1, 2010 (including amendments effective June 1, 2016)^1.

[2]

[3]

[4]

The applicant was denied certain benefits and submitted an application to the

Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

A case conference took place on September 16, 2020, and a written hearing was

scheduled for March 1, 2021. The written hearing was adjourned on consent.

After the Case Conference², the original written hearing date³was vacated and

rescheduled for April 19, 2021, with evidence due on February 15, 2021. The

applicant’s written submissions were due March 16, 2021, and the respondent’s

due March 30, 2021, with the applicant’s reply due April 9, 2021.

[5]

[6]

The applicant sought to admit evidence into the hearing record after the

production deadlines. The applicant was advised to file a Motion.

On June 1, 2021, the applicant filed a Notice of Motion requesting a report be

added into evidence. On June 3, 2021, the applicant filed a second Notice of

Motion to allow a letter into evidence.

[7]

Based on this, Adjudicator Lindsay Lake issued an Order⁴, which set the

procedural schedule for the applicant’s Motions and ordered that the decision on

these Motions will form part of the final decision of the written hearing in this

matter. Adjudicator Lake also added the following issue to the issues in dispute:

Is the respondent entitled to recover its costs regarding the applicant’s June 1,

2021 and June 3, 2021 Notices of Motion because the applicant acted

unreasonably, frivolously, vexatiously or in bad faith?

MOTION

[8]

On June 1, 2021, the applicant filed a Notice of Motion requesting that the

¹O. Reg. 34/10 as amended.

²Of September 16, 2020.

³Of March 1, 2021.

⁴Dated June 2, 2021.

Page 2 of 21

Tribunal:

i. Grant an order allowing Dr. Giles’ November 9, 2020 Neurologist Report into

evidence for the written hearing.

[9]

On June 3, 2021, the applicant filed a Notice of Motion requesting that the

Tribunal:

ii. Grant an order allowing a letter form Dr. Gino Pannozzo, general

practitioner, dated May 12, 2021, into evidence for the written hearing.

RESULTS OF MOTION

[10] The applicant may not rely on the report of Dr. Giles nor the letter of Dr.

Pannozzo.

[11]

LAW

The respondent is not entitled to costs of the motions.

[12]

Rule 3.1 of the Tribunal’s Rules (the ‘Rules’)⁵states that the Rules will be

liberally interpreted and applied, and may be waived, varied or applied on the

Tribunal’s own initiative or by a party’s request to facilitate a fair, open and

accessible process and allow effective participation by all parties, ensure

efficient, proportional and timely resolution of the merits of proceedings before

the Tribunal, and ensure consistency with governing legislation and regulations.

[13]

[14]

[15]

Rule 9.1 states that the Tribunal may, at any stage of a proceeding, order any

party to provide further particulars or disclosure as the Tribunal considers

necessary for a full and satisfactory understanding of the issues in the

proceeding.

Rule 9.4 states that if a party does not comply with any Rules, direction or orders

regarding disclosure, inspection of documents/things, or witness lists, that party

may not rely on the document/thing as evidence, or call the witnesses to give

evidence, without consent of the Tribunal.

Rule 19.1 states that where a party believes another party in a proceeding has

acted unreasonably, frivolously, vexatiously or in bad faith, that party may

request that the Tribunal order costs.

⁵Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of

Practice and Procedure, Version I (October 2, 2017) as amended.

Page 3 of 21

[16]

Rule 19.2 states that a request for costs may be made to the Tribunal in writing

or orally at a case conference or hearing, at any time before the decision or order

is released.

ISSUE FOR THE MOTIONS

Positions and Arguments

[17]

The applicant’s two motions requested that Dr. Katheryn Giles’s Neurologist

Report⁶and Dr. Gino Pannozzo⁷’s letter should be allowed into evidence for the

written hearing, despite the applicant not complying with the Case Conference

Order⁸deadlines for evidence disclosure.

[18]

[19]

The applicant submitted that the reports are relevant and should be considered,

as they are evidence that are vital in determining the applicant’s entitlement to

benefits.

In terms of the delay in providing the reports, the applicant submitted that they

were provided to the respondent as soon as possible. The applicant also made

reference to COVID-19 making circumstances more difficult but did not

particularize the circumstances or events.

[20]

The applicant submitted the report of Dr. Pannozzo was key in determining if the

applicant’s injuries fell within the Minor Injury Guideline (‘MIG’). The applicant

argued that the report provides insight into the applicant’s psychological injuries,

chronic pain, sleep issues and post-concussive syndrome.

[21]

[22]

According to the applicant, Dr. Pannozzo’s report particularizes the applicant’s

injuries, and is vital to determining one of the main substantive issues before the

Tribunal and ought to be allowed into evidence.

The applicant also submitted that allowing Dr. Pannozzo’s report into evidence

would not be prejudicial to the respondent. He argued that probative value of Dr.

Pannozzo’s report should be weighed against the prejudice to the respondent, as

seen in Howe v. The Commonwell Mutual Insurance Group.⁹Based on this, the

applicant submitted there is no prejudice to the respondent, and it had the

chance to have the applicant assessed via an Insurer’s Examination and did so.

[23]

In the alternative, should the Tribunal find there is prejudice to the respondent,

⁶Dated November 9, 2020.

⁷Dated May 12, 2021.

⁸Dated September 17, 2020.

⁹Howe v. The Commonwell Mutual Insurance Group, 2021 120970 (ON LAT) at paragraph 20.

Page 4 of 21

the applicant argued that any prejudice could be cured by allowing the

respondent to respond to the report, in accordance with Howe¹⁰.

[24]

[25]

The applicant argued that based on the Rules, the Tribunal has the discretion to

allow the report into evidence, and to not do so would not be proportional in the

circumstances. Furthermore, as Rule 3.1 allows for liberal interpretation to

ensure an “efficient, proportional and timely resolution”. The applicant submitted

that this position is supported by section 2 of the Statutory Powers Procedure

Act¹¹(SPPA).

Though the applicant admits that the report was submitted late, based on Rule

9.1, he argued that the Tribunal can make Orders for disclosure, even if the

standard timelines are not respected. Though the applicant acknowledges this is

not ideal, he submitted his request is not unusual, and this type of request is

regularly granted as the prejudice is easily cured¹².

[26]

[27]

The respondent submitted that the applicant failed to respect the Tribunal’s

Order. The respondent submitted that allowing the Dr. Pannozzo and Dr. Giles’

documentation evidence would be unfair to the respondent.

The respondent relied on 18-002569 v Aviva Insurance Canada¹³, which found

that directions from the Tribunal should be followed, and if they are not followed

without sufficient or persuasive reasons, there ought to be consequences. It also

relied on the Order from the Case Conference, which the applicant failed to

comply with.

[28]

[29]

In this case, the respondent argued that the applicant failed to comply with the

Case Conference Order¹⁴, and the applicant failed to provide an explanation for

the delay in the reports, beyond saying they were not available, it should not be

allowed to rely on the reports.

The respondent also stated that though the applicant made vague references to

the current COVID-19 pandemic, he failed to link how the pandemic delayed the

production of the evidence. The respondent submitted the Tribunal ought not to

accept COVID-19 as a blanket reason for a party failing to meet the Tribunal’s

deadlines and should follow the decision of AJ v Aviva General Insurance¹⁵.

¹⁰Ibid.

¹¹Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

¹²Ibid at paragraph 20.

¹³18-00269 v Aviva Insurance Canada, 2019 22214 (ON LAT) (18-002569).

¹⁴Dated September 17, 2020.

¹⁵AJ v Aviva General Insurance, 2020 72500 (ON LAT).

Page 5 of 21

[30]

[31]

[32]

[33]

Furthermore, the respondent submitted that simply failing to show prejudice as a

result of late service does not permit the applicant to allow the requested

documents into evidence and supported this argument by relying on the decision

of 18-002569 v. Aviva Insurance Canada¹⁶.

The respondent argued that the applicant was aware or ought to have been

aware that Dr. Giles’ report was outstanding and had ample time to address this

before the written submissions for the substantive were due. As the applicant

failed to do so, the report should not be admitted into evidence.

The respondent also noted that Dr. Giles’ report¹⁷was written more than five

months before the written hearing was scheduled, but the report was not

produced within the timelines set by the Tribunal. Instead, the applicant raised

the issue in an email to the Tribunal and the respondent on May 21, 2021.

The respondent submitted that it would be seriously prejudiced if Dr. Giles’ report

were allowed into evidence, as the respondent was prevented from responding to

the case it must defend itself . The respondent also argued that it would suffer

prejudice should it be allowed into evidence, as the respondent was not given the

opportunity to review the report or author a responding report nor can it do so via

this motion.

[34]

Based on this, it submitted that dismissing both the applicant’s motions would

result in the most just, efficient, and timely resolution of this matter.

Analysis

[35]

[36]

After considering the submissions and evidence of the parties, based on a

balance of probabilities, I find that the applicant has not persuaded me that either

the report of Dr. Giles or the letter of report of Dr. Pannozzo should be allowed

into evidence. Therefore, the applicant’s motions are denied.

I agreed with the respondent’s position regarding these motions and their clear

similarities to the matter in the 18-002569¹⁸case and agree that the applicant’s

arguments cannot be accepted since the respondent has demonstrated the

prejudice it experienced as a result of the applicant’s actions. I find that the

respondent has shown the prejudice suffered, in that it was deprived the

opportunity to obtain a responding report or reports.

¹⁶18-002569 v Aviva Insurance Canada, 2019 22214 (ON LAT).

¹⁷Dated November 9, 2020.

¹⁸18-00269 v Aviva Insurance Canada, 2019 22214 (ON LAT).

Page 6 of 21

[37]

[38]

I also understood the applicant’s arguments regarding Rules 3.1 and 9.1 but

noted that the applicant did not provide any submissions regarding Rule 9.4.

Without this information, I am not comfortable granting the liberal interpretation of

the Rules requested by the applicant, as the applicant failed to comply with Rule

9.4.

The applicant provided little or no information as to why he provided Dr. Giles

report and Dr. Pannozzo’s letter several weeks outside of the disclosure period,

what steps he took to minimize the prejudice to the respondent, why he didn’t

inform the respondent that these reports were coming, why he did not contact the

Tribunal within a timely manner, and that the evidence would be served outside

of the production dates or any other relevant information.

COSTS

Positions and Arguments

[39]

The respondent sought costs of the hearing pursuant to Rule 19 and section 17.1

of the SPPA on the basis that the applicant’s behaviour during the course of the

proceeding was unreasonable, vexatious and in bad faith.

[40]

Rule 19.5 of the Common Rules set out the factor to be considered by the

Tribunal in awarding costs:

a) The seriousness of the misconduct;

b) Whether the conduct was in breach of an order or direction issued by the

Tribunal;

c) Whether or not a party’s behaviour interfered with the Tribunal’s ability to

carry out a fair, efficient, and effective process;

d) Prejudice to other parties;

e) The potential impact an order for costs would have on individuals

accessing the Tribunal system.

[41]

The respondent requests costs for the two motions. The respondent argued that

the applicant has shown a lack of respect for the Tribunal and the Tribunal should

not use its discretion to allow the report of Dr. Giles’s or Dr. Pannozzo’s into

evidence, which would be highly prejudicial. The respondent submits that the

applicant’s misconduct was serious, resulted in numerous delays and resulted in

prejudice to the respondent. The applicant failed to respect the Tribunal’s

Page 7 of 21

process and should be penalized for wasting resources, as seen in J.K. v. Aviva

Insurance Company of Canada¹⁹.

[42]

[43]

In terms of the considerations mentioned above²⁰, the respondent submitted that

Dr. Pannozzo’s and Dr. Giles’s evidence is highly prejudicial, as the respondent

was not afforded an opportunity to respondent to it, nor did Dr. Pannozzo’s

evidence accompany questions put to Dr. Pannozzo by the applicant’s counsel.

The applicant submitted that the evidence he wished to rely on was not received

in a way where they could have been served earlier. Furthermore, he reminded

the respondent that the two reports totaled 4 pages of information. The applicant

submitted that his actions cannot be construed as unreasonable behaviour or

bad faith.

[44]

[45]

[46]

The applicant rejected the respondent’s position regarding costs and submitted

that he provided the evidence as soon as possible, and at the earliest

opportunity.

The applicant submitted that costs are not compensatory, but rather are meant to

maintain civility and order during proceedings²¹. The test for costs remains a high

bar, which the respondent has failed to meet.

Furthermore, the applicant submitted that ordering costs for this matter would

have a potential impact on individuals trying to access the Tribunal’s services, as

it would have the potential to stifle applicants trying to provide the most relevant,

contemporaneous evidence to the Tribunal.

Analysis

[47]

[48]

[49]

After considering the respondent’s request for costs, I have declined to award

such. Requests for costs have a high standard, and costs should only be

ordered where there is no other reasonable means of addressing misconduct.

Although the applicant’s conduct contributed to a delayed and inefficient process

that resulted in some prejudice to the other party, the Tribunal was able to

balance the prejudice to the parties.

In this case, the Tribunal was able to address the applicant’s conduct by

excluding the evidence the applicant wished to rely on, thereby addressing the

¹⁹J.K. v. Aviva Insurance Company of Canada, 2020 34446 (ON LAT).

²⁰Rule 19.5.

²¹K.G. v Aviva Insurance Company of Canada, 2020 72513 (ON LAT).

Page 8 of 21

misconduct of the applicant.

[50]

I agreed with the applicant’s position that though the applicant’s actions regarding

producing the report were tardy, they do not rise to the level to be characterized

as frivolous, vexatious, unreasonable or in bad faith.

HEARING ON THE SUBSTANTIVE ISSUES

[51] On consent, the following issues are to be decided by the Tribunal:

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 limit and in

the Minor Injury Guideline (MIG)?

ii.

iii.

iv.

Is the applicant entitled to a medical benefit in the amount of $1,995.50 for

occupational therapy services recommended by Dianna Black in a treatment

plan (‘OCF-18’) submitted on November 18, 2019?

Is the applicant entitled to a medical benefit in the amount of $1,397.00 for

physiotherapy services recommended by Jacqueline Render in an OCF-18

submitted on October 15, 2019?

Is the applicant entitled to interest on any overdue payment of benefits?

LAW

[52]

Section 3(1) of the Schedule states that a minor injury consists of one or more a

sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or

subluxation and includes any clinically associated sequelae to such an injury.

Section 3(1) of the Schedule also establishes the treatment framework regarding

minor injuries within the minor injury guideline.

[53]

[54]

Section 18(1) of the Schedule states that when an insured person sustains an

impairment that is predominantly a minor injury, the total cost of his/her/their

medical and rehabilitation benefits payable shall not exceed $3,500.00.

Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not

apply if an applicant provides compelling medical evidence documented by a

health practitioner before the accident that he has a pre-existing medical

condition that will prevent him from achieving maximal recovery from the minor

injury if he is subject to the MIG funding limit.

[55]

Section 51(1) of the Schedule states that interest is due on a benefit that is

Page 9 of 21

overdue if the insurer does not pay the benefit within the time stated by the

Schedule.

[56]

Section 15(1) of the SPPA states that a tribunal may admit as evidence at a

hearing any oral testimony and any document or thing relevant to the subject-

matter of the proceeding and may act on such evidence, but the tribunal may

exclude anything unduly repetitious.

SUBMISSIONS AND EVIDENCE

Submissions regarding the applicant’s partner’s injuries

[57]

In its substantive written submissions, the respondent raised a preliminary issue,

requesting that the applicant’s partner’s injuries and the handling of her accident

benefits file be excluded from consideration at this hearing, despite not being

before me. It made submissions regarding the lack of relevance of these

documents.

[58]

[59]

However, the respondent did not file a Motion to address this prior to the hearing.

Section 15(1) of the SPPA gives me the power to determine what is and is not

relevant to the substantive issues, which I will address in this decision.

The parties agreed that the applicant was in an accident that occurred near

Porter, Indiana. This was a 4-vehicle collision and the applicant’s partner was

also injured. The applicant submitted that his partner also sustained injuries as a

result of the accident.

[60]

[61]

As a result of the accident, the vehicle’s airbags deployed. Since the applicant

did not want to incur American medical bills related to his accident, he did not

attend the hospital immediately after the accident.

Since the applicant’s vehicle was written off due to extensive damage, the

applicant drove home to Canada in a rental vehicle, taking rural roads. When the

applicant returned to Canada on June 18, 2019, he visited his family doctor the

next day, Dr. Pannozzo.

[62]

[63]

The respondent submitted that the applicant’s partner’s information is irrelevant,

as individuals can be involved in the same accident but suffer different and

varying injuries, depending on the circumstances and mechanics of the accident.

Analysis

When considering relevance of submissions, section 15(1) of the SPPA states

Page 10 of 21

that a tribunal may admit as evidence at a hearing, whether or not given or

proven under oath/affirmation or admissible as evidence in court any oral

testimony and any document or other thing relevant to the subject matter of the

proceeding, and may act on such evidence, but the tribunal may exclude

anything unduly repetitious.

[64]

[65]

In this case, the applicant has not provided persuasive submissions or evidence

showing the relevance of the applicant’s partner’s injuries in relation to the

applicant’s own injuries.

I agree with the respondent’s submissions, namely that the applicant’s partner’s

injuries have little to no bearing on the applicant’s injuries, as it is common for

two people in the same accident to suffer very different injuries as a result of their

particular situation.

Does the applicant have any pre-existing conditions?

[66]

The applicant submitted that he ought to be excluded from the MIG on the basis

of having a pre-existing condition that will prevent maximal medical recovery from

the minor injury if he is subjected to the $3,500.00 limit under the MIG.

[67]

[68]

The standard for excluding an impairment on the basis of pre-existing conditions

is well-defined and strict. A pre-existing condition will not automatically exclude a

person’s impairment from the MIG: it must be shown to prevent maximal recovery

within the cap imposed by the MIG.

The applicant submitted that he suffers from a documented, pre-existing

condition before the accident that would prevent maximum medical recovery if

limited by the MIG. He submitted that he suffered from a left bicep tear that has

been exacerbated by the accident and will not fully recover if not provided more

treatment beyond that offered by the MIG.

[69]

[70]

The applicant relied on records from Dr. John McCuaig²², physician, indicating

that the applicant suffered an acute long head bicep rupture, a cuff

impingement/tendinopathy, and cervical myofascial pain syndrome before the

accident.

The applicant argued that at the time of the accident, he was actively

participating in physiotherapy to address his shoulder. He continued by stating

that after the accident, his pain was exacerbated by the accident.

²²Dated January 7, 2019.

Page 11 of 21

[71]

[72]

The applicant relied on a disability certificate (an ‘OCF-3’) completed²³by Dr.

John Peever, chiropractor. Dr. Peever observed the following of the applicant’s

post-collision injuries: concussion, torn left bicep, cervical, thoracic and lumbar

strain and headaches and dizziness.

The applicant also relied on the treatment plan (the ‘OCF-18’) of Dr. Peever²⁴

which states that the applicant’s injuries are not minor in nature due to his pre-

existing condition, torn left biceps tendon. Dr. Peever comments that the injury

has caused the applicant’s pain to flare and that the applicant suffers from

concussion – slurred speech/concentration off.

[73]

[74]

The OCF-18 stated that the applicant’s injuries were preventing him in

completing household tasks, community-based activities, work, drive, participate

in leisure activities and maintain healthy relationships²⁵.

The applicant also submitted that as a result of his injuries, he has not returned to

his pre-collision avocational activities, as he is unable to golf, play soccer, had to

take time off from his employment after the accident and was unable to drive.

The applicant also submitted that this has resulted in him gaining weight. Based

on this, he argued that he requires treatment beyond the MIG to return to his pre-

accident lifestyle and activities.

[75]

The respondent disagreed with this position. It submitted that the applicant

should not be removed from the MIG on the basis of his pre-existing left bicep

tear and/or tendonitis. The respondent argued that the applicant has not

submitted any diagnostic evidence to demonstrate a rupture/tear as a result of

the accident.

[76]

[77]

The respondent also noted that the applicant had failed to provide any medical

evidence to demonstrate that a health practitioner substantiated his claim that his

left shoulder injury or tendonitis would prevent him from reaching maximal

medical recovery if subjected to the MIG’s limits.

In terms of the OCF-3 and OCF-18 relied upon by the applicant, the respondent

reminded the Tribunal that these documents alone are not enough to remove an

applicant from the MIG, as seen in I.R. v. TD Insurance Meloche Mennox²⁶and

P.S. v. Wawanesa Mutual Insurance Company²⁷. In these cases, both

²³On June 25, 2019.

²⁴Dated June 24, 2019.

²⁵Additional comments section of the OCF-18 of Dianna Black, Occupational Therapist on November 18,

2019.

²⁶I.R. v. TD Insurance Meloche Mennox, 2020 87968 (ON LAT).

²⁷P.S. v. Wawanesa Mutual Insurance Company, 2020 87934 (ON LAT).

Page 12 of 21

adjudicators found that treatment plans have limited weight when demonstrating

an applicant should be removed from the MIG and that compelling medical

evidence was also required. As the applicant has not provided any evidence-

based opinion from a medical professional related to how his left bicep tear

and/or tendonitis would prevent him from reaching maximal medical recovery if

confined to the MIG, he has not met his evidentiary burden.

[78]

[79]

The respondent noted that the applicant’s shoulder was subject to an

ultrasound²⁸and was found to be normal, with no notes of the alleged injury. The

applicant also attended an appointment at AIM Clinic²⁹, where he reported that

he would be golfing over the weekend and did not identify his shoulder as a

barrier to doing so.

Furthermore, the applicant attended a section 44 assessment³⁰with Dr.

Mohamed Khan, physician. Dr. Khan observed that both the applicant’s arms

had a full range of motion, despite the applicant’s shoulder injury before the

accident. Dr. Khan found that the applicant did not have a significant pre-existing

injury or condition that would exclude the applicant’s treatment from the MIG.

Analysis

[80]

After considering the submissions and evidence of the parties and based on a

balance of probabilities, I am not persuaded that the applicant’s pre-existing

injury warrants removal from the MIG, as he has not demonstrated that this injury

requires treatment beyond the MIG limits to obtain maximum medical recovery.

[81]

As noted by the respondent, the applicant has not provided any medical

imagining to support his position that his pre-existing left shoulder injury was

exacerbated by the accident, and the ultrasound of the applicant’s left shoulder

was normal. Though I am aware of Dr. Peever’s OCF-3 and OCF-18, I am left

wondering on what basis he made his findings of the applicant’s shoulder injury,

given he did not conduct any diagnostic imaging.

[82]

Furthermore, beyond the OCF-18 of Dr. Peever, I have not been presented with

compelling medical evidence supporting the applicant’s position, that his pre-

existing injury requires treatment beyond the MIG limit. The only practitioner who

found that the applicant’s injuries required further treatment was Dr. Peever, the

doctor who authored the OCF-18 in dispute. Therefore, I find that the applicant

²⁸On August 23, 2019.

²⁹On July 5, 2019.

³⁰On February 5, 2020.

Page 13 of 21

has not met his evidentiary burden.

Does the applicant suffer from chronic pain?

[83]

The applicant submits that he suffers from chronic pain as a result of the

accident, which removes him from the MIG, because the prescribed definition of

“minor injury” does not include chronic pain conditions.

[84]

The applicant argued that he suffers from chronic pain in his left shoulder as a

result of the accident. He relied on the same evidence submitted for his pre-

existing injury, discussed above. The applicant also argued that he suffers from

chronic, painful headaches. However, I will address those complaints in the

subsequent section of this decision.

[85]

[86]

The respondent refuted this position; the respondent argued that the applicant

had not been diagnosed with chronic pain by a medical professional.

Furthermore, the respondent noted that even if the applicant had received this

diagnosis, this in it itself does not remove an injury person from the MIG and

relied on N.J. v TD General Insurance Company³¹, which supported this position.

Instead, the respondent submitted that the applicant carries the burden of

showing his/her/their chronic pain is continuous or chronic pain syndrome and of

a severity that it causes suffering/distress with function impairment(s) or

disability³².

[87]

When evaluating chronic pain, the Tribunal has often turned to the AMA Guides³³

to establish chronic pain. The Tribunal has determined that at least three of the

six criteria must be met to establish a diagnosis of chronic pain syndrome³⁴,

which are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of

or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and or fear-avoidance of

physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social

³¹N.J. v TD General Insurance Company, 2020 57413 (ON LAT).

³²Ibid.

³³American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.

³⁴17-007825 v Aviva Insurance Canada, 2018 98282 (ON LAT)

Page 14 of 21

contacts;

5. 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;

6. Development of psychosocial sequelae after the initial incident, including

anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

[88]

In this case, the respondent submitted that the applicant has not shown that he

meets any of the six criteria listed above, since his evidence contains no proof

that he is over-using prescriptions, has excessive dependence on medical

providers or others, has secondary physical deconditioning, social withdrawal,

failure to pursue work, family or recreational needs, or development of

psychosocial sequelae.

Analysis

[89]

[90]

[91]

[92]

After considering the submissions of the parties, and based on a balance of

probabilities, I find that the applicant has not met his evidentiary burden to

demonstrate that he suffers from chronic pain.

I agreed with the respondent’s position, namely that the applicant had failed to

demonstrate with medical evidence that he suffers from chronic pain requiring

removal from the MIG.

I also find that the evidence presented by the applicant is not sufficient to remove

him from the MIG on this basis, as he failed to provide persuasive medical

evidence to support this position.

Instead, I was more persuaded by the respondent’s position and case law,

including the AMA Guides. Though I am not bound by the AMA Guides with

respect to chronic pain, and its criteria are not found within the Schedule I find

them to be a useful tool for evaluating chronic pain.

[93]

[94]

In this case, the applicant did not demonstrate that he was able to fulfil three of

the six criteria of the AMA Guides. In terms of these six criteria, the applicant’s

submissions were lacking. Though the applicant made submissions regarding his

reduced avocational activities, his submissions were brief and did not include any

direct evidence to support the reduction nor was this corroborated by a medical

professional.

The applicant does not have a diagnosis of chronic pain from a medical

practitioner, nor has he demonstrated that he fits within the criteria of the AMA

Page 15 of 21

Guides for a diagnosis of chronic pain. In short, the applicant has not met his

onus. Therefore, I will not remove him from the MIG on this basis.

Does the applicant have a concussion or post-concussive issues?

Causation

[95]

The respondent argued that the applicant’s concussion and chronic headaches

were not caused by the accident. It argued that based on the “but for” test, the

applicant must demonstrate that his injuries would not have occurred “but for” the

accident³⁵.

[96]

The respondent alleged that the applicant attended an initial assessment at Body

Tech³⁶after attending the AIM Clinic. The clinical notes and records from this

visit indicate that the applicant did not note any head trauma or symptoms

associated with concussions such as vomiting or confusion.

[97]

[98]

The applicant reported that since the accident he had chronic headaches,

dizziness, back pain, general body pain, noise trigger symptoms, forgetfulness,

issues with focus and irritable³⁷.

To support this position, the applicant relied on the clinical notes from his family

doctor, Dr. Pannozzo, where three days after the accident, the applicant reported

pain in his head, neck, ribs and back³⁸. Dr. Pannozzo noted that the applicant

had a restricted range of motion in his neck, and his upper and lower back were

tender. Based on this, Dr. Pannozzo opined that the applicant had whiplash and

cervical strain. Dr. Pannozzo also referred the applicant for imaging studies and

to physical therapy.

[99]

The applicant then attended the AIM Health Group³⁹, where he complained of

headaches, pain in his left shoulder, chest, right side, wrists, back, quadriceps

and calves⁴⁰to chiropractor Dr. Peever. After examining the applicant, Dr.

Peever opined that the applicant had a concussion caused by his air bag and his

left bicep injury.

[100]

The OCF-18 of Ms. Black⁴¹stated that the applicant reported frequent

³⁵See Sabadash v. State Farm et al., 2019 ONSC 1121 at para 31.

³⁶On October 4, 2019.

³⁷Based on the clinical notes and records of Body Tech Physiotherapy, dated October 4, 2019.

³⁸From Dr. Pannozzo’s clinical notes and records of June 19, 2019.

³⁹On June 21, 2019.

⁴⁰Based on the AIM Clinic clinical notes and records of June 21, 2019.

⁴¹Additional comments section of the OCF-18 of Dianna Black, Occupational Therapist on November 18,

2019.

Page 16 of 21

headaches, decreased memory, difficulties with multi-tasking, word finding,

sleeping, fatigue, mood fluctuations and motivation as a result of the accident.

[101]

[102]

The applicant returned to Dr. Pannozzo⁴²reporting poor coordination in his

hands, specifically with zippers, balance issues, blurred vision and headaches.

Dr. Pannozzo also referred the applicant to a neurologist to investigate his

headaches. The applicant did not present evidence that he attended a

neurologist.

The applicant submitted that both a chiropractor and/or a physiotherapist are

trained to recognize the signs and symptoms of a concussion and post-

concussive syndrome. The applicant directed the Tribunal to 18-000655 v.

Echelon General Insurance Company⁴³, where the applicant tried to escape the

MIG as a result of a concussion. In that matter, Adjudicator Sewrattan found that

the applicant did have a concussion, despite the respondent’s neurologist not

observing “a clear sign” of post-concussive syndrome. The applicant submitted

that as he has three independent medical professionals indicating he suffers from

concussion like symptoms and headaches, he must be removed from the MIG.

[103]

[104]

The applicant also submitted that his diagnostic imaging being unremarkable,

meaning not being unusual, is not the “be all end all” in determining an injured

person has a concussion, as seen in 17-001473 v Unica Insurance Inc.⁴⁴.

The respondent disagreed with the applicant’s position and argued that his

reports of headaches are not as a result of a concussion or post-concussion

syndrome that would remove him from the MIG. Instead, it submitted that the

applicant’s headaches are a sequela of his soft tissue injuries as a result of the

accident.

[105]

[106]

The clinical notes and records also noted that on the day of assessment, the

applicant’s dizziness was “here and there, not chronic, lightheaded and “off”, did

not suffer from vertigo, nausea but did report neck pain, hearing changes,

headaches, issues with talking and word finding, and chronic fogginess”⁴⁵. The

notes also state that the applicant did not attend concussion treatment.

The respondent also noted that the clinical notes and records from the applicant’s

visits that the applicant underwent laser eye surgery a week before his

assessment and felt like his vision wasn’t as clear as he used to be. Based on

⁴²On June 11, 2020.

⁴³18-000655 v. Echelon General Insurance Company, 2018 132557 (ON LAT).

⁴⁴17-001473 v Unica Insurance Inc., 2017 69462 (ON LAT).

⁴⁵Based on the clinical notes and records of Body Techy Physio, dated October 4,2019.

Page 17 of 21

this, it submitted that the applicant’s vision issues were pre-existing and not

caused by the accident.

[107]

[108]

The applicant then attended a neuro-visual assessment⁴⁶at KW Neuro related to

his headaches⁴⁷. The applicant was seen based on a referral from Body Tech.

Based on the applicant’s Neuro-Vision evaluation of Dr. Kimberly Dolman,

optometrist, Dr. Dolman determined that the applicant showed deficits in his

ocular motility, binocularity, peripheral awareness, perceptual skills and primitive

reflexes⁴⁸.

[109]

However, none of the assessors at KW Neuro diagnosed the applicant with a

concussion as a result of the accident and found the applicant’s deficits were

related to the most common post-concussion like symptoms, such as headaches,

blurry vision and balance issues⁴⁹. Instead, he was diagnosed with astigmatism

and presbyopia and recommended vision therapy, glasses for driving to avoid

eye strain causing headaches, and near glasses to improve balance.

[110]

[111]

Based on this evaluation, the respondent submitted that the diagnoses of the

applicant’s astigmatism and presbyopia are not related to the accident but can

cause similar symptoms to a concussion and chronic painful headaches, such as

headaches, eye strain, vision issues and fatigue.

The respondent also noted that the applicant participated in a section 44

assessment⁵⁰with Dr. Larry Allen, ophthalmologist for an ophthalmology

assessment. During this assessment, the applicant noted his vision issues,

including noting he used his glasses for reading and computer work and that his

peripheral vision was not good⁵¹. Dr. Allen did not identify any vision related

sequela as a result of the applicant’s accident nor any reasons to remove him

from the MIG.

[112]

The respondent also relied on its section 44 assessment, conducted by Dr.

Mohamed Khaled, physician⁵². Dr. Khaled found that the applicant had the

following injuries as a result of the accident: mechanical, low back pain and grade

⁴⁶And assessed by Dr. Kim Dolman, Optometrist, Reena Fleming, Vision Therapist and Karen Gerber,

Vision Therapist.

⁴⁷Where the applicant attended on September 3 and 9, 2020.

⁴⁸Based on the Neuro-Vision Evaluation dated October 2, 2020.

⁴⁹Ibid.

⁵⁰On January 20, 2021.

⁵¹Based on the Independent Ophthalmology Assessment of Dr. Allen, dated February 3, 2021.

⁵²On February 5, 2020.

Page 18 of 21

2 whiplash of the neck with associated headaches⁵³. Dr. Khaled opined that the

applicant suffered uncomplicated, soft tissue injuries with no evidence of

neurological sequela, and therefore his injuries were subject to the MIG⁵⁴.

[113]

[114]

[115]

The respondent also disagreed with the applicant’s submissions regarding 17-

001473 v Unica Insurance Inc⁵⁵. It submitted that this decision was not relevant,

as in that matter, the applicant was diagnosed by a qualified medical expert, a

family physician. In the current matter, the applicant has no such diagnosis.

The respondent submitted that because the applicant failed to mention to Dr.

Allen and Dr. Khaled that he had undergone laser eye surgery in 2019, his

credibility is negatively impacted; as a result, less weight should be put on the

applicant’s reported symptoms.

The respondent directed the Tribunal to the case of E.L. v Unica Insurance Inc.⁵⁶,

where the applicant submitted that as a result of the accident, he had a

concussion based on his father’s reporting. However, since the medical

evidence noted no concussion diagnosis from a medical professional, this was

not found to be sufficient to compel Adjudicator Moten to find that the applicant

suffered a concussion as a result of the accident. Furthermore, Adjudicator

Moten found that the applicant’s vision issues were pre-existing and were not a

result of the alleged concussion.

[116]

The respondent also noted that the applicant himself has suggested his

headaches as related to the stresses of his job, as noted by Dr. Pannozzo⁵⁷. The

applicant had also acknowledged during the Body Tech Physiotherapy

Assessment that he was dealing with increased stress due to work and the

applicant’s child⁵⁸.

[117]

[118]

Finally, the respondent also addressed the applicant’s poor coordination and

noted that this issue was pre-existing before the accident.

Based on all of the above, the respondent submitted that the applicant’s

headaches and concussion like symptoms are due to his pre-existing vision

issues and the side effects from his laser eye surgery.

⁵³Based on the Independent Medical Physician Assessment of Dr. Khaled dated February 26, 2020.

⁵⁴Ibid.

⁵⁵17-001473 v Unica Insurance Inc., 2017 69462 (ON LAT).

⁵⁶E.L. v Unica Insurance Inc., 2019 130407 (ON LAT) at paragraph 24.

⁵⁷Based on the clinical notes and records of October 23, 2019.

⁵⁸Of October 4, 2019.

Page 19 of 21

[119]

The applicant made no submissions related to causation.

Analysis

[120]

[121]

[122]

After considering the submissions and evidence of the parties, based on a

balance of probabilities, I find that the applicant has not demonstrated that the

cause of his alleged concussion and chronic headaches were caused by the

accident.

When considering the applicant’s claims of concussion and chronic, painful

headaches, the most insightful medical information would be a diagnosis with an

explanation from a neurologist. In this case, this information is not available

because the applicant did not have a neurological examination.

In this case, the applicant did not provide medical evidence from a qualified,

medical practitioner and provide a diagnosis of a concussion. Though Dr. Peever

did provide such, his findings were lacking; he did not provide any information

regarding the methodology he used in determining this diagnosis and furthermore

a diagnosis of concussion is beyond his scope of practice. Neither Dr. Dolman,

Ms. Flemming nor Ms. Gerber diagnosed the applicant with a concussion but

note he has post-concussion symptoms.

[123]

Also, Dr. Peever is a chiropractor; though he is qualified to observe and note

symptoms of a concussion, he is not qualified to diagnose one, as it goes beyond

the scope of his practice. Since the applicant has not provided me with

persuasive medical evidence that he was diagnosed with a concussion by a

qualified medical professional as a result of the accident, I find that his

symptomology can be attributed to his pre-existing eye conditions.

[124]

[125]

In terms of the applicant’s chronic headaches, I find that these were caused by

the applicant’s pre-existing vision issues. I base myself on the fact that this was

not refuted by the applicant. This was also based on the medical documentation

and evidence provided by the respondent. All of the applicant’s symptomology

can be ascribed to his pre-existing eye conditions.

I noted that the applicant’s vision issues, such as blurriness, balance problems,

and eye strain causing headaches may have been exacerbated by the accident.

However, since I found the applicant to have pre-existing vision problems, I also

found that the accident did not cause the applicant’s diagnosable eye problems,

namely astigmatism and presbyopia.

Page 20 of 21

[126]

[127]

Furthermore, these eye issues are attributable to the applicant’s alleged post-

concussive symptoms, namely his headaches and balance issues, as addressed

by Dr. Dolman, Ms. Fleming, and Ms. Gerber in the Neuro-Vision Evaluation at

KW Neuro.

As I have found that the applicant’s post-concussion or concussion like

symptoms were not caused by the accident, I find that his injuries fall within the

MIG; it is unnecessary for me to assess whether the claimed treatment plans are

reasonable and necessary, as the MIG limits have been exhausted.

Interest

[128]

Since no benefits in dispute are overdue, no interest is owing.

CONCLUSION AND ORDER

[129]

The applicant’s motions are denied.

[130]

[131]

[132]

[133]

The respondent’s request for costs is denied.

The applicant’s injuries are found to be in the Minor Injury Guideline.

The applicant is not entitled to payment for the treatment plans in dispute.

The applicant is not entitled to interest.

Released: June 17, 2022

__________________________

Stephanie Kepman

Adjudicator

Page 21 of 21