V.E. v. TD Insurance Meloche Monnex, 2020 CanLII 40357

Licence Appeal Tribunal

Citation: V.E. v. TD Insurance Meloche Monnex, 2020 ONLAT 19-003443

Released Date: 06/01/2020

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:

[V.E]

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Kim Mohammed-Sieudhan, Representative

For the Respondent:

Michael Silver, Counsel

Heard by way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, [V.E] (“applicant”), was involved in an automobile accident on October 19, 2017 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent, TD Insurance Meloche Monnex (“respondent”), and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² The respondent has already approved treatment up to the monetary limits of the MIG. The respondent also submits that, even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary. The applicant has applied to the Tribunal for dispute resolution.

PRELIMINARY ISSUES

Initial s. 44 reports

3The applicant states he was not provided the initial s. 44 reports from Dr. Oshidari and Dr. Nikkhou, only the addendum reports, and asks that the initial reports of Dr. Oshidari, Dr. Nikkhou and the Physical Medicine Addendum report be excluded from the respondent’s submissions. The respondent states that the initial s. 44 reports were provided by way of explanation of benefits letter dated June 4, 2019. In reply, the applicant argues that, although this letter makes reference to the s. 44 report of Drs. Oshidari and Nikkhou, the letter produced does not include copies of the actual reports, so the respondent has not proven on a balance of probabilities that these reports were actually sent to the applicant or his legal representative.

4I find that on a balance of probabilities the respondent provided the initial reports to the applicant in its letter dated June 4, 2019, even though copies of the reports are not attached to the copy of the letter before me. I decline to exclude them. The June 4, 2019 letter from the respondent to the applicant states “Enclosed is your copy of the report of the examination under section 44 dated May 31, 2019…by Dr. Oshidari and Dr. Nikkhou.” The “enclosure” note at the end of the letter also refers to “additional info”. This letter was copied to applicant’s legal representative. Further, the applicant could have requested further copies at the case conference. There is no evidence that the applicant did so. Further, the applicant received these reports as part of the respondent’s submissions for the written hearing.

Clinical Notes and Records (“CNRs”) of Respondent’s Assessors

5The applicant states that the respondent has acted improperly in failing to provide the CNRs of the respondent’s s. 44 (“IE”) assessors as ordered by the Tribunal, and asks that the reports of Dr. Oshidari, Dr. Nikkhou and the Physical Medicine Addendum report be excluded from the respondent’s submissions. The respondent states that it agreed to provide them at the case conference upon receipt of the applicant’s authorization, but no authorization to provide them was received. In reply, the applicant admits that the Tribunal’s case conference Order requires the respondent to provide, by November 22, 2019, the applicant with the “CNRs of the IE assessors subject to applicant’s authorization.” The applicant, however, argues that the respondent did not provide the applicant with an authorization for signature, did not request that the applicant provide a signed authorization, and did not request authorization at the case conference. The applicant also argues that the CNRs of the IE assessors are relevant because they would have disclosed whether or not the s. 44 reports have been altered and may influence the weight the Tribunal may attribute to the IE assessors.

6I find that the respondent has not acted improperly. The respondent’s obligation to provide these medical documents was “subject to the applicant’s authorization” in accordance with the Tribunal’s case conference Order which was made on consent of the parties.

7The Order does not obligate the respondent to provide an authorization for signature to the applicant or make further requests for an authorization. The Order is clear that the respondent’s obligation to provide these medical documents was “subject to” the applicant’s authorization, as agreed by both parties. The applicant was the party seeking these documents and could have provided an authorization as required by the Order, which would have then made the respondent’s obligation to provide these documents unconditional. In his submissions, the applicant does not dispute that he failed to provide an authorization but rather argues the respondent should have provided one. Given that the authorization is a short and commonly used document, providing one is not an onerous task for the applicant. If the applicant thought it was too onerous, he could have brought a motion to vary the Order or to compel the respondent to prepare an authorization. He did not do so, and so is bound by the Order made with his consent. At any rate, the applicant is unlikely to be prejudiced by proceeding with the hearing in the absence of these CNRs given that the s. 44 reports are available to the applicant and he comments on them in his submissions. The applicant’s concern that the report may have been altered is just pure speculation.

Applicant’s Affidavit

8The respondent asks that I disregard the applicant’s affidavit sworn December 16, 2019, filed with his submissions. The applicant states he has submitted his affidavit “in support of the incorrect statements made by Dr. Oshidari and Dr. Nikkhou in their multidisciplinary addendum reports.” The respondent objects to this affidavit because the Tribunal’s September 23, 2019 case conference Order provides that “the parties agreed that no affidavits will be submitted as evidence at the hearing,” the applicant has never requested a variation of the Order, and the respondent is not agreeable to any variation of the Order. Further, the respondent objects to the content of the affidavit, which contains argument rather than statements of evidence. The respondent submits that the affidavit ought to be disregarded.

9I agree. Firstly, the applicant agreed at the case conference that no affidavits will be submitted as evidence at the hearing. The applicant’s submission of his affidavit is in clear breach of that consent Order. Secondly, the applicant could have brought a motion to vary the Order between September 23, 2019, when he consented to the Order, and December 16, 2019, when his submissions were due, but did not do so. Thirdly, a cursory review of the affidavit shows that it contains a number of arguments about the reports of Dr. Oshidari and Nikkhou, rather than evidence. The applicant’s arguments about the reports should be in his submissions, not in an affidavit. The affidavit is, therefore, excluded.

ISSUES

10The issues to be decided in this hearing are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,285.00 for chiropractic treatment recommended by Progressive Rehab Centre, in a treatment plan (OCF-18) submitted on July 10, 2018 and denied on July 18, 2018?

iii. Is the applicant entitled to the cost of an examination, in the amount of $2,460.00 for a chronic pain assessment, recommended by Dr. Benmoftah, in a treatment plan (OCF-18) submitted on January 26, 2019, and denied on January 31, 2019?

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

RESULT

11The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been approved by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed. No costs to the respondent.

LAW

The Minor Injury Guideline

12The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

13To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

i. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

ii. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

14The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

15As the applicant can only be successful on the issues in dispute if he can prove that his injuries caused by the accident are not minor, I will determine that issue first.

ANALYSIS

16I find that the applicant’s physical injuries are minor injuries. On October 21, 2017, the applicant saw Dr. Mughal, family physician, for back, neck and shoulder pain. Dr. Mughal noted “back, shoulder sprain”, and prescribed daily exercise and medication. The Disability Certificate, OCF-3, by Dr. Rujeedawa, chiropractor, dated November 16, 2017 notes injuries including headache, dizziness and giddiness, sprain and strain of cervical spine, thoracic spine, lumbar spine and pelvis and shoulder girdle and ribs and sternum. These fall within the definition of “minor injury”. None of the applicant’s other medical reports and records indicate any physical injuries other than soft tissue injuries. However, the applicant argues that other conditions remove him from the MIG.

Does the applicant have psychological impairment as a result of the accident?

17I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment as a result of the accident justifying treatment beyond the MIG.

18The applicant submits that the records of Dr. Kat Kova and the diagnosis from his sleep specialist, Dr. Papneja, take him out of the MIG.

19Kat Kova is not a doctor according to the letterhead of KMA Therapy on which Kat Kova reports on the applicant’s psychotherapy. Kat Kova’s credentials shown on the KMA Therapy letterhead are “MSc., RP(Q)” and, as such, Kat Kova is not qualified to diagnose psychological impairments. There is no diagnosis of psychological impairment resulting from the accident.

20Dr. Papneja, a family physician, conducted an assessment of the applicant’s sleep. Dr. Papneja’s report dated March 6, 2019 diagnoses the applicant with chronic insomnia disorder “which seems to have been triggered by car accident.”

21I find the argument that the applicant’s insomnia resulted from the accident unpersuasive. Dr. Papneja gives no detail as to how the insomnia which he diagnosed approximately a year and one half after the accident resulted from the accident and appears to have based this conclusion on the applicant’s self-reporting of difficulty falling asleep since the accident.

22Dr. Mughal, who saw the applicant two days after the accident, did not note any psychological issues, insomnia or other sleep disturbance. When Dr. Kapur saw the applicant some three weeks after the accident, he did not record that the applicant was having insomnia or other sleep disturbance as a result of the accident. Dr. Kapur did not record insomnia or other sleep disturbance in the notes from applicant’s visits on July 9, 2018, August 2, 2018, October 23, 2018, December 13, 2018 or December 22, 2018. The first record of insomnia in Dr. Kapur’s notes is on March 7, 2019, when it is recorded that the applicant “Has insomnia-had a sleep test done yesterday.” Dr. Kapur does not indicate that the insomnia is caused by the accident.

23Neither Dr. Kapur or Dr. Papneja sufficiently establish that the applicant’s insomnia is as a result of the accident.

Does the applicant have chronic pain as a result of the accident?

24I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG.

25The applicant submits that his medical records, including the chronic pain diagnosis of Dr. Osama Benmoftah, an orthopaedic surgeon, made on March 26, 2019 take him out of the MIG.

26Although there is some reference to back, neck and shoulder pain in the notes of the applicant’s family physician, there is no evidence of further investigation of chronic pain until the applicant saw Dr. Benmoftah in March 2019, almost one and a half years after the accident. The only medical record Dr. Benmoftah states that he reviewed is the disability certificate dated November 16, 2017 by the applicant’s chiropractor. Having not reviewed the records from the applicant’s family physicians, he was unaware that these records show the applicant did not complain of chest pain until November 10, 2017 and that the applicant’s family physician did not arrange for investigation of chronic pain.

27The applicant’s reporting of pain is not continuous. The applicant has continued to work full-time, perhaps with some modifications, and appears to be able to drive a motor vehicle. The applicant did not bring forward any evidence from his employer to establish any significant functional limitations in working or any corroborating evidence about his alleged inability to perform some personal and household tasks. Dr. Benmoftah simply appears to have accepted the applicant’s self-reporting regarding work and personal and household care. Dr. Benmoftah does not give any explanation how the applicant’s condition could have resulted from the accident.

28Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Medical Benefit: Are the treatment plans reasonable and necessary?

29Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the chiropractic treatment plan and cost of examination in dispute are reasonable and necessary.

Interest

30As no benefits are payable, no interest is payable.

Costs Requested by Respondent

31The respondent requests costs but fails to set out specific reasons why costs should be awarded. I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Safety, Licencing Appeals & Standards Tribunal Ontario Common Rules of Practice & Procedure, October 2, 2017. No costs are awarded to the respondent.

ORDER

32For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed. No costs to the respondent.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.