Licence Appeal Tribunal File Number: 21-014536/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:
Rukhsana Danish
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Loreto Scarola, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD: In Writing
October 21, 2023
OVERVIEW
1Rukhsana Danish, the applicant, was involved in an automobile accident on October 27, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
PRELIMINARY ISSUES
Non-Compliance with the CCRO
2The respondent took issue with the applicant's failure to comply with the Tribunal's Case Conference Report and Order ("CCRO") dated October 21, 2022, that set the page limit for the parties at 13 pages.
3The applicant's submissions were 18 pages.
4The respondent's submissions complied with the CCRO. The respondent requested that the Tribunal not consider the applicant's additional submissions. The respondent also submits that the applicant eliminated all margins on the pages of the submissions. The respondent also submits that the clinical notes and records of the applicant's family physician Dr. Irum Tariq, after January 4, 2023, should not be included as the applicant did not follow the timelines in the CCRO, leaving the respondent with inadequate time to review and consider the evidence.
5The applicant offered no explanation as to the reason(s) for exceeding the length, nor did the applicant file a motion to extend the page limit in advance of the hearing. The applicant did acknowledge in the submissions that the length did not comply with the CCRO and sought Tribunal consent to consider the entirety of its submissions. Furthermore, the applicant provides consent in the submissions to allow the respondent the same consideration if required. As for the medical records, the applicant submits that the requesting party is at the mercy of the medical service provider as to when those records can be received.
6The applicant submits that the respondent's written submissions were due Friday June 30, 2023 but were provided on Sunday July 2, 2023. The respondent admits submitting the submissions late to the Tribunal, noting that due to the long weekend, she mistakenly noted the submissions were due on Tuesday, July 4, 2023, opposed to Friday, June 30, 2023.
7In reviewing the evidence, I find that both parties failed to comply with the CCRO. I find that non-compliance with a Tribunal order falls directly within the ambit of Rule 9.3 of the Tribunal's Rules. In my view, while the actions of both parties demonstrate a disregard for the Tribunal process, I am not persuaded by the submissions of either party that the actions result in prejudice. I specifically note that the page limit omits evidence and case law which is intermixed throughout the applicant's submissions. I will be reviewing all evidence and submissions filed to render my decision.
8I would be remiss if I did not caution the parties that anytime there is non-compliance with a previous Order, parties risk exclusion of the submissions or evidence or both.
ISSUES
9The following issues are to be decided:
i. Are the applicant's injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline ("MIG")?
ii. Is the applicant entitled to $2,938.38 for chiropractic treatment, proposed by Toronto Physio and Wellness in a treatment plan dated July 23, 2021?
iii. Is the applicant entitled to $1,995.32 for a psychological assessment proposed by Pilowsky Psychological Professional Corporation in a treatment plan dated August 3, 2021?
iv. Is the applicant entitled to $3,259.48 for psychological services, proposed by Pilowsky Professional Corporation in a treatment plan dated August 28, 2021?
v. Is the applicant entitled to $1,470.66 ($2,685.95 less $1,215.29 was approved) for chiropractic treatment, proposed by Mackenzie Medical in a treatment plan dated July 14, 2022?
vi. Is the applicant entitled to interest on any overdue payments?
vii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payment of benefits to the applicant?
RESULT
10I find that the applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, or interest, is payable.
ANALYSIS
APPLICABILITY OF THE MINOR INJURY GUIDELINE ("MIG")
11The 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."
12Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
13An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
14It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
15I find that the applicant has not met her evidentiary burden of proving that she should be removed from the MIG. The applicant does not make persuasive MIG submissions, but rather intertwines vague MIG and treatment plan submissions, evidence, and arguments. The applicant's submissions are made up of page number and paragraph references and did not clarify the applicant's theory of the case. I have inferred that the applicant's position is that she should be removed from the MIG based on both physical and psychological injuries.
Did the applicant suffer physical injuries that warrant removal from the MIG?
16The applicant submits that since the applicant had not been provided proper and uninterrupted access to physical treatment, she has been unable to recover from her physical injuries, identified as neck, back, shoulder, knee, and ankle pain. The applicant relies on the clinical notes and records (CNR's) of Dr. Irum Tariq, family physician. On November 14, 2020, the applicant submits that she saw Dr. Tariq, for "trauma to [her] face from the deployed airbag" but no other injuries were listed in the submissions. The applicant did not have a section 25 report with respect to the applicant's physical condition.
17In response, the respondent relies on the entirety of Dr. Tariq's CNRs. It asserts that the applicant's first appointment was for complaints of pain in her hip, back, groin and knee area. All future appointments through to January 9, 2022, did not mention the accident or make any casual connection between the reason for the appointment and the accident. Future CNRs throughout 2021 and 2022 reference the applicant's degenerative changes. On May 5, 2022, the applicant had a re-assessment appointment with Dr. Tariq at the request of her paralegal to restart physiotherapy and medication for pain.
18The respondent also relies on the section 44 Physiatry Report of Dr. Ida Cavaliere, dated December 9, 2021. After a physical assessment, Dr. Cavaliere opined that the applicant's pain fell within the MIG, which was confirmed in a February 3, 2022 addendum report.
19After considering the submissions and evidence of the parties, I am not persuaded that the applicant has accident-related impairments. This is due to the lack of corroborating evidence to support her claim, like the CNRs of Dr. Tariq, which is supported by Dr. Cavaliere's opinion in the section 44. Accordingly, the applicant has not met her burden.
Did the applicant suffer psychological impairments as a result of the accident that justify removal form the MIG?
20An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
21The applicant submits that as a result of the accident, she suffers from a psychological impairment that requires removal from the MIG. The respondent disagrees.
22In support of the applicant's position, the applicant relied on Dr. Tariq prescribing her an anti-depressant, Cymbalta, on July 4, 2021. The applicant also relies on the November 16, 2020, assessment of Joy Simon, chiropractor, and the section 25 report of Dr. Sandra Sagrati, psychologist, dated September 13, 2021. In my opinion, it is beyond the scope of the chiropractor to opine on the applicant's cognitive ability. Dr. Sagrati diagnosed the applicant with somatic symptom disorder with predominant pain, persistent, moderate; Major depressive disorder, single episode, moderate; and vehicular anxiety. The respondent submits that Dr. Sagrati's conclusions do not align with the testing conclusions. The respondent points to the results of "mild levels of anxiety" on the applicant's score on the Beck Anxiety Inventory, yet Dr. Sagrati diagnosed the applicant with vehicular anxiety. Dr. Sagrati also reports that the applicant's test is indicative of an increased risk to develop somatoform disorder, but the respondent questions whether this finding of potential development is a formal diagnosis.
23The respondent argued that eight months after the accident, on July 4, 2021, the applicant was prescribed Cymbalta on a trial basis. The CNRs reveal that this was the first appointment that the applicant raised a psychological concern. Despite numerous appointments on other matters, there was no mention of psychological concerns again until May 5, 2022. No psychological diagnosis was made by Dr. Tariq, nor any recommendations for psychological treatment, a psychologist or referral to a mental health professional.
24The respondent took issue with the applicant's submission that Cymbalta was prescribed, submitting instead that it was issued on a trial basis. The applicant conceded, submitting without medical evidence that all medications prescribed by family physicians are done on a trial basis. In any event, on May 5, 2022, the CNRs reveal the next prescription of Cymbalta for the applicant.
25The respondent relies on the section 44 psychological examination of Dr. Douglas Saunders, dated December 9, 2021, and addendum psychological report, dated February 3, 2022. Dr. Saunders opined that the applicant was not suffering from any accident-related psychological impairment.
26After reviewing the evidence, I agree with the respondent. I do not find that there is compelling evidence to show that the applicant suffers from a psychological impairment that would remove her from the MIG. There is a notable absence of compelling medical evidence to corroborate accident-related psychological impairments. I prefer the evidence of Dr. Saunders over Dr. Sagrati. Dr. Sagrati's assessment was completed virtually, and it is not supported by the bulk of the medical evidence. Dr. Saunders conducted an in-person assessment, and his findings that the applicant was not suffering from any accident-related psychological impairment were consistent with Dr. Tariq, who did not refer the applicant to a specialist. Lastly, I place little weight on the assessment of Joy Simon, as I find psychological injuries are beyond the scope of practice of a chiropractor.
Interest and Award
27Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest or an award.
ORDER
28The application is dismissed, and I find that:
i. The applicant's injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest or an award.
Released: November 10, 2023
Monica Ciriello
Vice-Chair