Citation: Kumar v. Intact Insurance Company, 2023 ONLAT 20-013837/AABS

Licence Appeal Tribunal File Number: 20-013837/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:

Atul Kumar

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Seema Passi, Paralegal

For the Respondent: Nirvana Misir, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Atul Kumar (the “applicant”) was involved in a motor vehicle accident on September 16, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Intact Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment, and denied six treatment plans/OCF-18s. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In submissions, the applicant notes that the MIG has been exhausted. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to any of the treatment plans in dispute.

ISSUES IN DISPUTE

3The following substantive issues are in dispute:

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 limit of the MIG?
2. Is the applicant entitled to $1,485.18 for physiotherapy, proposed by Total Care Rehab in a treatment plan submitted February 23, 2020 and denied March 4, 2020?
3. Is the applicant entitled to $1,997.40 for a psychological assessment, proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted May 22, 2020 and denied May 27, 2020?
4. Is the applicant entitled to $1,998.80 for a chronic pain assessment, proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted February 7, 2020 and denied February 11, 2020?
5. Is the applicant entitled to $2,200.06 for a neurological assessment, proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted December 21, 2020 and denied January 4, 2021?
6. Is the applicant entitled to $2,200.00 for an orthopedic assessment, proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted December 21, 2020 and denied January 4, 2021?
7. Is the applicant entitled to $4,995.00 for psycho-vocational assessment, proposed by Alliance Diagnostics and Treatment Inc. in a plan submitted January 20, 2021 and denied January 20, 2021?
8. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
9. Is the applicant entitled to costs?
10. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

4The applicant added issues #8 and #9 in submissions. The respondent objected to the addition of the award, as it was not raised during the case conference on August 15, 2022 that resulted in this matter being set down for a hearing, or at any time before hearing submissions were filed. The respondent did not comment on the costs request.

5I include both the award claim and the costs request in the list of items in dispute. I am allowing the award issue as neither s. 10 of Regulation 664 nor the Schedule provide direction on how and when such a claim can be added to an application before the Tribunal. I am allowing the costs request pursuant to Rule 19.2 of this Tribunal’s Common Rules, which allows a request for costs to be made in writing or orally, at any time before a decision or order is released.

RESULT

6I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is not entitled to the treatment plans in dispute, nor interest, as the MIG limit has been exhausted.

PROCEDURAL ISSUE

7The applicant filed his hearing submissions with the Tribunal twice. He first filed and served his submissions on the respondent on April 21, 2023 two days after the deadline as established in the case conference report and order (“CCRO”) dated September 16, 2022. He then filed a different version of these submissions with the Tribunal and emailed them to the respondent on May 5, 2023.

8The respondent emailed the Tribunal on that same day objecting to the applicant’s late filing and seeking clarity on which version of submissions would be relied on by the Tribunal. The respondent argued that accepting the May 5, 2023 applicant submissions would be prejudicial, as the respondent prepared and served its own submissions on the May 5, 2023 due date set in the CCRO, and did so in response to the April 21, 2023 original submissions of the applicant.

9I agree with the respondent and find that it would be prejudiced if I reviewed the May 5, 2023 version of the applicant’s submissions, as the applicant contravened the CCRO and by doing so left the respondent in such a position where it could not respond to the applicant’s late submissions. Further, the applicant offers no explanation for why he filed submissions for this hearing twice. He also did not submit a reply to address this objection of the respondent.

10Correspondingly, I rely on Rule 9.4 of this Tribunal’s Common Rules of Practice & Procedure (the “Rules”), which establishes that “[i]f a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things…that party may not rely on the document or thing as evidence…without the consent of the Tribunal.” I choose not to provide this consent, and therefore do not admit the May 5, 2023 submissions of the applicant into evidence. In the context of rendering this decision, I reviewed only the applicant’s submissions served on April 21, 2023.

ANALYSIS

The Minor Injury Guideline (“MIG”)

11Section 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 minor injuries. 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.”

12An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Removal from the MIG can also be warranted if there is documentation of a pre-existing condition combined with compelling medical evidence stating that this condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

13The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. He submits that the accident caused sustained “severe and unbearable pain in the back and neck” as well as anxiety that has negatively impacted his memory and his ability to focus, and also resulted in dizziness, sleep deprivation, and nightmares. The applicant claims that both these physical and psychological impairments warrant his removal from the MIG.

14The respondent counters that the applicant has not submitted evidence to meet his burden of demonstrating either physical or psychological issues that would necessitate treatment beyond the MIG.

The applicant remains within the MIG

15I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.

16I am not persuaded by the applicant’s medical evidence, which is inconsistent and slight with regard to supporting his claims of suffering ongoing pain with a functional impairment and psychological issues as a direct result of the accident.

Chronic pain

17First, to address the applicant’s claims of ongoing pain. The applicant does not directly argue that he is suffering from a chronic pain condition in submissions, although this is heavily alluded to throughout the document. However, there is little medical evidence supportive of such an assertion.

18Much of the applicant’s argument here references his Disability Certificate/OCF-3 and the intake assessment records of Alliance Diagnostics and Treatment Inc., which I find to be of limited evidentiary value. I accept that Dr. Anjan Acharya, physiotherapist, diagnosed the applicant with strain and sprain of the cervical spine, pain in the thoracic spine, neck pain, and malaise and fatigue in the OCF-3 dated September 28, 2019. And I accept that the applicant made the same complaints during his initial assessment with Alliance Diagnostics on January 30, 2020 that resulted in physiotherapy. But all of the physical injuries diagnosed in the OCF-3 and noted in the Alliance Diagnostics records fall under the Schedule’s definition of a minor injury, and the physiotherapy treatment is reflective of this as well.

19Further, the applicant’s objective medical evidence also supports that he sustained minor injuries as a result of the accident. Notably, the applicant did not seek medical attention at the time of the accident, or even immediately afterward. He did not mention accident-related injuries to his family physician, Dr. Reem Nahab, until January 10, 2020, nearly four months post-accident, despite seeing the doctor on November 19, 2019 and November 22, 2019 on unrelated matters.

20In his clinical notes and records (“CNRs”) of the January 10, 2020 appointment, Dr. Nahab noted the applicant’s complaints of upper and lower back pain, neck stiffness, and that the applicant reported no other neurological symptoms such as weakness, numbness, or pain that radiated to the legs. Dr. Nahab recommended that the applicant continue physiotherapy, modify his activities (but also to avoid rest and continue daily activities as tolerated), and to use analgesics, NSAIDS, and/or muscle relaxants. He did not order any diagnostic testing. In all, these diagnoses and treatments are in accord with that afforded to those suffering with soft-tissue injuries covered in the definition of a minor injury in the Schedule.

21I assign no weight to the applicant’s argument that he suffers from a physical impairment as a result of the accident as a consequence of this persistent pain. Although the applicant claims that this pain has rendered him unable to perform activities that he could have done easily before the accident, he does not direct me to evidence supporting such assertions aside from his records from Alliance Diagnostics and the treatment plans in dispute. Nor does he submit any evidence regarding activities before the accident and how his accident-related impairments prevented him from performing them afterward. All he references is the Alliance Diagnostics intake report cited in the treatment plan in dispute for a chronic pain assessment dated January 30, 2020 (submitted February 7, 2020), which is unsupported by objective medical evidence or an accounting of his activities, pre- and post-accident, that would demonstrate that he suffered from an impairment due to accident-related injuries.

22In addition, I find the medical evidence of the respondent persuasive. I prefer the assessment of insurer examiner (“IE”) Dr. Alan Kruger, general practitioner, who examined the applicant in person on February 11, 2021 and filed a report on February 26, 2021. He found no evidence of an impairment as a result of the accident, and that the applicant displayed a full range of motion and showed no sign of neurological or radicular issues. Dr. Kruger concluded that the applicant had “sustained a minor injury or injuries as a result of the accident.” This conclusion is in harmony with the diagnoses and treatment recommendations in the CNRs of Dr. Nahab, which in my view strengthens the report further.

Psychological impairments

23Second, to review the applicant’s claims regarding a psychological impairment. The applicant makes this the crux of his argument regarding removal from the MIG, but as with the chronic pain issue outlined above, he submits minimal medical evidence to support this claim.

24Again, the applicant relies on the OCF-3, the records from Alliance Diagnostics, and the treatment plans in dispute to support that he suffered from psychological issues such as headache, malaise, fatigue, sleep disorder, and anxiety as a result of the accident. However, I assign no weight to the OCF-3 and the Alliance Diagnostics records, as they were completed by a physiotherapist and two chiropractors in Dr. Larysa Mikhailava and Dr. Nabeel Syed, who have no claimed expertise in psychological matters.

25I also assign no weight to the diagnoses featured in a treatment plan in dispute for a psychological assessment dated January 30, 2020 (submitted on May 22, 2020). While this report was completed by a psychologist in Mohammad-Reza Sadeghi, the resulting diagnoses that found the applicant to suffer from a number of accident-related psychological impairments such as anxiety, severe stress, and obsessive thoughts came as the result of a pre-screening interview that was entirely dependent on self-reporting.

26Also, this pre-screening is unsupported by contemporaneous objective medical evidence. The applicant did not report any accident-related psychological issues to Dr. Nahab until a phone appointment on July 30, 2021, more than 22 months after the accident and some 18 months after the pre-screening. The applicant informed Dr. Nahab that he had been experiencing regular anxiety since the accident that was causing a variety of symptoms such as low mood, nervousness, fatigue, dizziness, and sleep disturbances. The applicant reported the same issues in a follow-up appointment on September 15, 2021. At the first appointment, Dr. Nahab offered a referral to a “Dr. Fatin.” At both appointments, Dr. Nahab recommended deep-breathing exercises, dietary changes, physical exercise, and meditation, and discussed medication.

27Even more problematically, no evidence was submitted indicating that the applicant ever saw “Dr. Fatin” or another physician for his psychological symptoms, that the applicant was ever prescribed any medication for these issues, or that the applicant visited Dr. Nahab again after the September 15, 2021 appointment. He seems to have stopped treatment here abruptly, which does not support his claim that this was a longstanding issue requiring treatment outside of the MIG. Also, Dr. Nahab noted “lost job” in his record of the July 30, 2021 appointment, raising the possibility that this might have contributed to the applicant’s reported anxiety and stress.

28I prefer the medical evidence of the respondent regarding the psychological claims of the applicant. Dr. Amena Syed, psychologist, examined the applicant in person on February 8, 2021 and completed an IE report on February 26, 2021. In this report, which included a full range of psychometric testing, Dr. Syed found no objective evidence to support the applicant’s claims of a psychological impairment in relation to the subject accident.

29In addition, Dr. Syed concluded that the applicant’s scores on performance validity and embedded vitality measures “were indicative of feigning psychological impairment.” As the applicant has not directed me to evidence that would refute these diagnoses and observations—aside from the self-reported claims of the applicant in the pre-screening noted above—I see no reason to doubt the report of Dr. Syed.

Conclusion

30For the above reasons, I find that the applicant has not demonstrated that he suffers from chronic pain or a psychological impairment outside of the Schedule’s definition of a minor injury. He remains within the MIG.

The Treatment Plans

31Having found that the applicant remains in the MIG, which has been exhausted, the applicant is not entitled to the treatment plans in dispute, nor interest.

Award and Costs

32I find that the respondent is not liable to pay an award or costs.

33As I have not found the applicant entitled to any benefits, it follows that an award is not warranted. The applicant’s request for costs is too insubstantial to justify consideration. He makes this request properly pursuant to Rule 19.1, but he does not set out reasons or note particulars of the other party’s conduct that he alleges to be unreasonable, frivolous, vexatious, or in bad faith, as required by Rule 19.4.

34Accordingly, I dismiss both the award and the costs requests.

ORDER

35I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is not entitled to the treatment plans in dispute, as the MIG has been exhausted.

iii. The respondent is not liable to pay costs or an award.

iv. The application is dismissed.