Khan v. Sonnet Insurance Company, 2022 CanLII 53745

Citation: Khan v. Sonnet Insurance Company, 2022 ONLAT 20-007065/AABS

Licence Appeal Tribunal File Number: 20-007065/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:

Nadia Khan

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

Earl Murtha, Counsel

HEARD:

By way of written submissions

BACKGROUND

1Nadia Khan, ("the applicant"), was involved in an automobile accident on August 26, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule")¹. She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") after her claims for benefits were denied by Sonnet Insurance Company, ("the respondent").

2The applicant was a passenger of a vehicle that was struck by another vehicle that made a U-turn. The airbags did not deploy, and she did not lose consciousness. Two days after the accident, she went to Markham Stouffville Hospital for left-sided ribs pain, left-sided chest pain, and back pain.² It was noted in the records that she experienced increased pain with movement.³ She was subsequently discharged, and Naproxen was prescribed.⁴ Diagnostic imaging of her ribs and chest revealed no acute abnormality.

3The respondent denied the applicant's claims, including treatment for: chiropractic services, orthotics, a bio-psychosocial assessment, and a psychological assessment because it determined that all of 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 ("the MIG").⁵

4The applicant submits that her injuries fall outside of the MIG because of her chronic pain and psychological impairments.

5If the applicant's position is correct, then I must address if the chiropractic services, orthotics, a bio-psychosocial assessment, and a psychological assessment, are reasonable and necessary pursuant to the Schedule.

6If the respondent's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to the benefits claimed, nor interest.

ISSUES

7The following are the issues to be determined, as per the Case Conference Order, dated November 9, 2020:

i. Is the applicant entitled to medical benefits of $1,656.81 for chiropractic services?

ii. Is the applicant entitled to medical benefits of $150.00 for orthotics?

iii. Is the applicant entitled to $1,796.00 for a bio-psychosocial assessment?

iv. Is the applicant entitled to $1,995.33 for a psychological assessment?

v. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefit?

8Both parties submitted that there was also an issue of whether the applicant was in the MIG. As such, I have added the following issue to this hearing:

i. Are the applicant's injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

RESULT

9I find that the applicant sustained predominately minor injuries because of this accident, and that she is subject to the MIG and the $3,500.00 funding limit.

10The applicant has reached the $3,500.00 funding limit on medical benefits for a minor injury. Thus, an analysis on the disputed treatment and assessment plans is not required.

11The applicant is not entitled to interest on any overdue payments of benefits, nor is she entitled to an award. She is also not entitled to any costs in relation to this proceeding.

PRELIMINARY ISSUE: BREACH OF THE CASE CONFERENCE ORDER ("TRIBUNAL'S ORDER")

12The applicant produced certain evidence and made her submissions after the deadline imposed by the Tribunal. However, I will permit the evidence and submissions because the respondent has failed to establish any prejudice brought as a result of the applicant's breach of the Tribunal's Order.

13The respondent submits that the applicant is in breach of the Tribunal's Order, as she failed to submit her written submissions and evidence by May 28, 2021. The respondent further submits that the applicant failed to comply with the Tribunal's Order by producing new evidence after the deadline for productions passed. The deadline for exchange of documents was April 23, 2021. The respondent submits that the following are new evidence that was submitted on June 7, 2021: Clinical notes and records of Dr. Doobay (dated August 27, 2020, and May 26, 2020); OHIP Summary 2015 – 2019; OHIP Summary 2020; Clinical notes and records from Markham Stouffville Hospital; and the Clinical notes and records from Toronto Medical Centre.

14The respondent submits that the applicant has not requested consent to submit evidence beyond the deadline set in the Tribunal's Order. Further, the respondent submits that leave should not be granted by the Tribunal to allow the evidence and submissions to be admitted for the purposes of this hearing. The respondent relies on Rule 9.4 of the Tribunal's Common Rules of Practice and Procedure ("the Rules"). Rule 9.4 sets out that a party that fails to comply with any Rules or Orders regarding disclosure or inspection of documents or things, or lists of witnesses, that party may not rely on the document or thing as evidence, or call a witness to give evidence, without the consent of the Tribunal.

15In reply, the applicant submits that on October 20, 2020, and October 28, 2020, she served all the records on the respondent except for the records dated May 26, 2021, of Dr. Doobay. The applicant did not provide any evidence to support this position. The applicant provided no explanation for her being late with serving and filing her written submissions.

16I acknowledge that the applicant submits she served all the productions, except for the records of Dr. Doobay, dated May 26, 2021, prior to the case conference. However, the Tribunal's Order was clear that the deadline for productions was April 23, 2021. She should have re-served all the evidence prior to this deadline. Also, the applicant obtained the records of Dr. Doobay, dated May 26, 2021, after the production deadline and failed to comply with the deadline for her submissions.

17Despite the clear breach of the Tribunal's Order, I am permitting the admission of the applicant's evidence and written submissions. The respondent has failed to establish any prejudice brought as a result of the applicant's breach of the Tribunal's Order. Moreover, the respondent relied on several of these documents to support their own submissions. However, I would caution the applicant against any future breach of Tribunal Orders. Rule 9.4 is discretionary and when parties fail to abide by production orders or deadlines, they risk the potential of exclusion by the hearing adjudicator. Deadlines are intended to promote procedural fairness and to maintain hearing efficiency pursuant to Rule 3.1.

ANALYSIS

The MIG

18I find that the applicant sustained predominately minor injuries as a result of this accident, for the reasons outlined below.

19The MIG establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

20Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. An applicant may be entitled to treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant's evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁶ The onus is also on the applicant to demonstrate that her injuries fall outside of the MIG.

21The applicant submits that she has ongoing pain in her lower back, neck and shoulder which have not resolved within the normal healing time. As such, she submits she has chronic pain that removes her from the MIG. Additionally, she submits that she should be removed from the MIG because she sustained psychological injuries as a result of the accident.

The Applicant is not Removed from the MIG on the Basis of Chronic Pain

22I find that the applicant has failed to prove that on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain.

23The applicant submits that she has objective evidence of chronic pain and should be removed from the MIG on this basis. The applicant relies on the authority of 17-002907 v. Aviva Insurance Company⁷ to support her position. In the matter cited, there was objective evidence of disc bulges and degenerative changes in the spine.

24The respondent submits that ongoing pain alone will not remove the applicant from the MIG, as it must be accompanied by some functional impairment. The respondent relies upon N.J. v. TD General Insurance Company to support their position.⁸ The Tribunal held that a chronic pain diagnosis alone will not remove the applicant from the MIG, and removal from the MIG requires the applicant to prove that their chronic pain is not merely a sequalae of their soft tissue injuries, and it is their predominant injury.⁹ The Tribunal further provided an analysis between chronic pain and the MIG, wherein it determined that for chronic pain to be more than a sequelae it must be continuous or be a chronic pain syndrome and it must be accompanied by functional impairment or disability.¹⁰ It was further determined that a chronic pain diagnosis without any discussion about the level of pain, its effect on the person's function or whether the pain is bearable without treatment will not meet the applicant's burden of proof to remove them from the MIG.¹¹

25I am not bound by either of these authorities, however I find N.J. v. TD General Insurance Company persuasive. I agree that a diagnosis of chronic pain alone is insufficient to remove the applicant from the MIG. In order to be removed from the MIG on this basis, there has to be some evidence of a detrimental impact on functionality.

26I agree that the applicant was diagnosed with chronic pain as a result of the accident, however, I am not persuaded that she suffers a detrimental impact on her function as a result of the chronic pain. I acknowledge the respondent's position that there is sparse medical documentation to demonstrate she has chronic pain from this accident. However, on June 16, 2020, the applicant met with a physician, Dr. Doobay, who diagnosed her with intermittent chronic back pain.¹² I acknowledge that she met with Dr. Doobay on the advice of her lawyer, but that does not discount Dr. Doobay's diagnosis.¹³

27The applicant has failed to prove her chronic pain has had a detrimental effect on her functionality. The applicant's submissions and reply are silent on how her chronic back pain has resulted in any functional impairments. The applicant relies on the clinical notes and records of Toronto Medical Centre to support she has ongoing pain from this accident. I am not persuaded by these records that she has a functional impairment, as they only demonstrate that she complained of; neck, mid back, low back pain and headaches from October 16, 2018, to November 8, 2018.¹⁴ Further the records show that her last attendance for treatment was on December 11, 2018.¹⁵ Moreover, the records are clear that the applicant returned to work on regular duties following the accident. The applicant advised Dr. K. McCutcheon, s.44 psychologist assessor, on August 10, 2019, that she did not miss any time from work following the accident.¹⁶ I acknowledge that the applicant advised Dr. McCutcheon that following the accident she engaged in fewer housekeeping tasks and required assistance from her mother-in-law with respect to the bulk of the work.¹⁷ However, the applicant has failed to establish that these limitations are as a result of her chronic pain as she did not advise Dr. McCutcheon that it was a result of pain. Furthermore, she did not advise Dr. Doobay that she had restrictions with housekeeping tasks as a result of her chronic pain. On June 16, 2020, the applicant advised Dr. Doobay that her pain was worst when standing and walking, however she did not advise that she could not do these tasks, or she was limited in any way.¹⁸ Further, the applicant advised she was working at the bank and no functional impairments were noted with respect to her employment. The records of Dr. Doobay do not support that the applicant has any functional limitations as result of her chronic back pain.

28I prefer the report of s.44 assessor, Dr. T. Levy rather than the evidence presented by the applicant. Dr. Levy, in his report dated August 15, 2019, concluded that the applicant suffered uncomplicated soft tissue injuries to her posterior neck, left shoulder, left chest, and lower back.¹⁹ The applicant advised Dr. Levy that she was independent with her personal care activities, does the same housekeeping tasks albeit to a lesser degree and had returned to work on regular hours and duties, two days after the accident.²⁰ She further reported that she was 50% improved at this time from her accident-related injuries.²¹ In my opinion, Dr. Levy's report further demonstrates that any chronic pain the applicant has is a sequalae of her soft tissue injuries. Moreover, the applicant has failed to demonstrate that her minimal restrictions with housekeeping tasks are related to this accident. Even if these restrictions were established, I find that it is insufficient to remove her from the MIG, as they are a minimal restriction and are not detrimental to her overall functionality.

29The applicant has failed to meet her onus. She has not demonstrated on a balance of probabilities that her chronic pain has led to functional impairments or disability that would otherwise support her removal from the MIG.

The Applicant Does Not Suffer From Psychological Injuries Which Would Remove Her from the MIG

30The applicant has failed to establish on a balance of probabilities that she suffers from a psychological impairment that will remove her from the MIG.

31Psychological injuries, if established, fall outside the MIG, because the MIG only governs "minor injuries", and the prescribed definition does not include psychological impairments.

32The applicant submits that she suffers from psychological symptoms as a result of this accident, and these do not fall within the definition of the MIG. The applicant relies on 17-006460 v. Scottish & York²² to support her position. The facts in that case are distinguishable as the applicant was not in the MIG at the time of the hearing and was diagnosed with a psychological impairment by a s.44 assessor.

33The respondent submits that psychological symptoms without evidence of a psychological impairment, will not remove you from the MIG. In order to support this position, the respondent relies on 16-000438 v. The Personal Insurance Company, where the Tribunal held that the MIG implies that psycho-social symptoms are expected to accompany soft tissue injuries.²³ In order to be removed from the MIG, the applicant must demonstrate her psychological complaints are not merely psychological or psychosocial symptoms, but that she has sustained a psychological impairment as a result of the accident.

34I find that the applicant has failed to demonstrate that she suffers from a psychological impairment that would remove her from the MIG as a result of the accident. My finding is based on the evidence that will be discussed below and that the authority of 17-006460 v. Scottish & York is distinguishable from this matter.

35I acknowledge that the applicant presented with psychological symptoms during her examination with Dr. McCutcheon. However, I place significant weight on the opinion of Dr. McCutcheon where she stated that the applicant's mild accident-related psychological symptoms fell within the MIG because the symptoms were subclinical and there was no evidence to indicate a diagnosable psychological condition.²⁴ I am persuaded by this opinion, as testing illustrated she had a mild range of depression and anxiety, which was consistent with her self-reporting. Further, the applicant has not been assessed by any other psychologist or attended for psychological treatment. She further did not complain to Dr. Doobay of any psychological symptoms as a result of this accident.

36The applicant further submits that she has somatic problems and a specific phobia (driving and passenger related). However, the applicant failed to refer to any evidence to support these submissions. It is well-settled that submissions alone do not constitute evidence. Firstly, relying on OCF-18s to demonstrate that she suffers from psychological impairments are insufficient as this is not compelling medical evidence. Secondary, Dr. Doobay did not diagnose the applicant with any psychological impairments when he saw her in June of 2020. Thirdly, I place little weight on the clinical notes and records of Toronto Medical Centre where she complained of psychological symptoms and an unidentified individual circled that she has post traumatic stress and cognitive injury, and sleep disturbances.²⁵ I am not persuaded by this as the individual is unidentified and the records do not indicate how they came to such a conclusion without an assessment or testing. For all these reasons, I find that the applicant has failed to demonstrate that she should be removed from the MIG on the basis of a psychological impairment.

The Applicant is not Removed from the MIG on the Basis of Pre-existing or Neurological Injuries

37While the applicant did not expressly address these topics, I note that she may be removed from the MIG if she can demonstrate that she sustained a neurological injury, such as a concussion, or if she provides compelling evidence of a pre-existing health condition which would preclude maximal recovery if subject to the MIG.

38I find no evidence of a neurological injury as a result of the accident. Likewise, I find no evidence of a pre-existing health condition that would preclude the applicant's recovery if subject to the MIG.

39On September 15, 2018, Dr. A. Stamatiou, chiropractor, completed a Disability Certificate ("OCF-3"). Dr. Stamatiou listed the following injuries as a result of the accident: whiplash associated disorder [WAD1] with complaint of neck pain, stiffness, or tenderness; low back pain; sprain and strain of lumbar spine; sprain and strain of ribs and sternum [left]; dizziness and giddiness; headaches; nonorganic sleep disorders; nervousness; restlessness; acute pain; and malaise and fatigue.²⁶ I do not accept the opinion of Dr. Stamatiou with respect to any psychological symptoms or neurological symptoms as he is a chiropractor, and these diagnoses are outside of his area of practice. It is also clear that the remaining physical injuries are classified within the MIG.

40The applicant did not argue that she should be removed from the MIG as a result of neurological impairments. However, she provided evidence that she had headaches following this accident. As such, I have considered whether this will remove her from the MIG. I find that she will not be removed from the MIG on this basis as she has failed to demonstrate that the headaches are anything more than a clinically associated sequalae. This finding is based on the applicant's failure to demonstrate she suffers from a concussion, post-concussion syndrome, and Dr. T. Levy concluded that these headaches were tension related.²⁷

41The applicant denied that she had any pre-existing conditions prior to this accident, and as such, there are no grounds for removal from the MIG on this basis. The applicant also participated in s.44 assessments with Dr. Levy and Dr. McCutcheon and never reported any pre-existing conditions when prompted by assessors.

42As I have found the applicant to be in the MIG and the $3,500.00 limits have been exhausted, I do not need to consider whether any of the OCF-18s in dispute are reasonable and necessary.

The Applicant is Not Entitled to Costs or an Award Under Regulation 664

43The applicant's submissions are unclear, and she appears to allege that she is entitled to costs pursuant to the Regulations. It is unclear whether the applicant is referring to the award pursuant to s. 10 of Regulation 664 or costs pursuant to Rule 19 of the Rules. Due to the lack of clarity, I will deal with both an entitlement to an award and costs in my decision.

44Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high. The applicant has failed to provide any reasons why costs should be imposed, nor has she referenced any of the potential cost criteria set out in Rule 19.5 in relation to this matter. I am not persuaded the threshold for costs has been met at this juncture. Thus, no costs shall be awarded.

45The applicant did not provide any reasons for why she is entitled to an award.

46Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 percent of the amount in which the person was entitled.

47As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

INTEREST

48Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

ORDER

49For the reasons set above, I find that the applicant sustained predominantly minor injuries as defined under the Schedule. She is not entitled to the benefits claimed, interest, costs, or an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant's Document Brief, Tab 4, Clinical Notes and Records from Markham Stouffville Hospital, dated July 7, 2019.
3. 3Ibid.
4. 4Ibid.
5. 5Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
6. 6Scarlett v. Belair, 2015 ONSC 3635 para.24 (Div. Ct.).
7. 72018 CanLII 13153 (ON LAT).
8. 82020 CanLII 57413 (ON LAT).
9. 9Ibid at para 8.
10. 10Ibid.
11. 11Ibid.
12. 12Applicant's Document Brief, Tab 3, Clinical Notes and Records of Dr. Doobay, dated August 17, 2020.
13. 13Ibid.
14. 14Applicant's Document Brief, Tab 7, Clinical Notes and Records of TMC, dated January 19, 2019.
15. 15Ibid.
16. 16Applicant's Document Brief, Tab 2, Insurer's Examination, Psychological Examination, dated August 15, 2019 by Dr. McCutcheon.
17. 17Ibid.
18. 18Applicant's Document Brief, Tab 3, Clinical Notes and Records of Dr. Doobay, dated August 17, 2020.
19. 19Applicant's Document Brief, Tab 8, Insurer's Examination by Dr. Levy, dated August 15, 2019.
20. 20Ibid.
21. 21Ibid.
22. 222018 CanLII 112111 (ON LAT).
23. 232017 CanLII 59515 (ON LAT).
24. 24Applicant's Document Brief, Tab 2, Insurer's Examination, Psychological Examination, dated August 15, 2019, by Dr. McCutcheon.
25. 25Applicant's Document Brief, Tab 7, Clinical Notes and Records of TMC, dated January 19, 2019.
26. 26Applicant's Document Brief, Tab 6, OCF-3 dated September 15, 2018, by Dr. Stamatiou.
27. 27Applicant's Document Brief, Tab 8, Insurer's Examination Report by Dr. Levy, dated August 15, 2019.