Licence Appeal Tribunal File Number: 21-007902/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:
Anatoli Kleiman
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Golan Mergui, Counsel
For the Respondent: Elizabeth Harding, Counsel
HEARD: By way of written submissions
OVERVIEW
1Anatoli Kleiman (“the Applicant”) was involved in an automobile accident on January 20, 2020 and sought benefits from Intact Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).
2The Respondent characterized the Applicant’s injuries as falling within the Minor Injury definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
3The Applicant submitted updated clinical notes and records (“CNRs”) of Dr. L. Shimanovsky, family physician, with his initial submissions for the hearing. The Respondent submits that these CNRs should be excluded as evidence due to the Applicant’s failure to comply with the production order in the Case Conference Report and Order, dated March 7, 2022.
4Specifically, the Respondent submits that the Applicant missed the initial production deadline of August 19, 2022 and, later, missed the final production deadline of November 14, 2022 for all other documents to be relied upon at the hearing. The Respondent submits that the Applicant never provided the aforementioned CNRs until December 1, 2022, the due date for his submissions and evidence.
5Further, the Respondent submits that the fax cover page associated with the CNRs indicates that the Applicant received the documents on August 24, 2022. To the Respondent, the Applicant had sufficient time, knowledge and possession of these records to produce them in accordance with the timelines ordered by the Tribunal. As a result, the Respondent submits, it is prejudiced by being deprived of its option to have its own experts review and comment on the records.
6In reply, the Applicant denies that the records were received on August 24, 2022 and submits that it paid for but never received the records until November 30, 2022, after it faxed the clinic on November 28, 2022. He submits that the records were not disclosed on time due to inadvertence and excluding them would greatly prejudice him because they provide documentation of his ongoing accident-related impairments.
7I agree with the Respondent and order that the updated CNRs of Dr. Shimanovsky be excluded from the hearing. The failure to disclose evidence frustrates the Respondent’s ability to make full and fair submissions, and for the Tribunal to determine the issues. Pursuant to Rule 9.4, a party who fails to comply with any rules or Tribunal orders with respect to the disclosure of a document may not rely on that document as evidence without the consent of the Tribunal. Here, the Applicant agrees that he failed to disclose the records in accordance with the Tribunal order. As noted by the Respondent, the Applicant made no effort to extend the deadline to disclose evidence and provided no evidence he made any effort to ensure he received the evidence prior to the disclosure deadline.
8Even if I accept the Applicant’s account of the events – that he never received the CNRs until after he followed up with the clinic – I find that his failure to disclose the records is partly due to his inaction. Indeed, he followed up with the clinic, but it occurred two weeks after the disclosure deadline. He provides no evidence to suggest that he made any efforts to ensure production of the records prior to the deadline ordered by the Tribunal.
9I find that the Applicant is not unduly prejudiced by the exclusion of the CNRs. I agree that excluding the records affects the Applicant’s ability to present his case however, I note that he is not barred from relying on those records indefinitely and beyond this hearing. The Respondent continues to have an ongoing obligation to adjust the claim and must consider all medical evidence provided to it, including those CNRs.
10I find that the Respondent is prejudiced by the Applicant’s late disclosure. The Respondent relies on the opinions of medical assessors and has been deprived of the opportunity to seek opinions on the newly disclosed CNRs. This result of the late disclosure is a “trial by ambush” and should be avoided to ensure procedural fairness. I recognize that excluding the records affects the Applicant’s ability to present his case however, I find that the prejudice brought to the Respondent if the records are included in the hearing is greater.
11However, I will include the initial CNRs from Dr. Shimanovsky. The initial CNRs, which depict visits on January 27, and February 12, 2020, were disclosed in accordance with the Tribunal order and the Respondent is aware of and has had ample opportunity to obtain comment from its medical assessors.
ISSUES
12The issues in dispute are:
- Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 funding limit in section 18(1) of the Schedule?
- Is the Applicant entitled to a medical benefit in the amount of $3,148.70 for chiropractic services from 101 Physio proposed by Dr. W. Coghlan, chiropractor, in a treatment plan dated January 28, 2020?
- Is the Applicant entitled to a medical benefit in the amount of $2,197.91 for chiropractic services from 101 Physio proposed by Dr. Coghlan in a treatment plan dated August 14, 2020?
- Is the Applicant entitled to a medical benefit in the amount of $2,210.00 for social worker services from 101 Assessments proposed by Dr. Papazoglou in a treatment plan dated October 14, 2021?
- Is the Applicant entitled to a medical benefit in the amount of $2,460 for a psychological assessment from 101 Assessments proposed in a treatment plan dated May 6, 2020?
- Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for an occupational therapy assessment from 101 Assessments proposed in a treatment plan dated October 14, 2021?
- Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a neurological assessment at from 101 Assessments Physio proposed in a treatment plan dated October 14, 2021?
- Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
13I find that the Applicant has not met his onus to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
14The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside of the MIG.
15No interest is payable because no payments went overdue.
BACKGROUND
16The Applicant was the driver of a vehicle which was struck from behind while slowing down at a suburban intersection. He sought no medical attention at the scene of the accident but went to the hospital after and was examined. The physician at the hospital diagnosed him with a whiplash injury and discharged him home with prescriptions for Vimovo and Flexeril and instructions to follow-up with his family physician.
17The CNRs from Dr. Shimanovsky note that the Applicant made visits on January 27, and February 12, 2020. He complained of headaches, back and neck pain and decreased range of motion (“ROM”) during both visits. Dr. Shimanovsky prescribed pain medication but made no recommendation for treatment and never commented or indicated that any pre-existing injury would preclude the Applicant’s recovery if subject to the MIG.
18The Applicant submits that he should not be subject to the MIG because he sustained psychological injuries and chronic pain as a result of the accident. The Respondent disagrees and submits that the Applicant sustained a minor injury and suggests that he has returned to his pre-accident baseline with respect to his pre-existing chronic neck and back pain.
19I agree with the Respondent and find that the evidence before me demonstrates that the Applicant sustained a minor injury as a result of the accident.
ANALYSIS
Minor Injury Guideline (“MIG”)
20The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
21The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
22For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.
No evidence that a pre-existing injury would preclude recovery
23I find no evidence demonstrating that the Applicant’s pre-existing medical conditions would preclude his recovery if subject to the MIG.
24The Applicant submits that he suffers from pre-existing impairments due to a low back injury at the workplace. He suggests that this prior low back injury precludes his recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury. The Respondent agrees that the Applicant has a history of on and off again neck and back pain due to degenerative disc disease but submits that the evidence is insufficient to demonstrate that the conditions would preclude his recovery if subject to the MIG. I agree with the Respondent.
25Indeed, the Applicant suffers from pre-existing back issues stemming from a workplace injury, but there is no evidence that suggests that it would preclude his recovery from a predominantly minor injury. Dr. Shimanovsky’s CNRs include no reference to, or mention of, his prior issues as they related to or impact his recovery from the whiplash injury sustained in the accident.
26I find the opinion of Dr. G. Gelman, physician, to be persuasive. The Applicant was assessed by Dr. Gelman for an insurer’s examination, who issued a report dated July 7, 2020. Dr. Gelman noted that the Applicant reported pre-existing back pain but felt it was not aggravated by the accident. Dr. Gelman’s physical examination was relatively unremarkable with no significant signs of ongoing musculoskeletal impairments as a result of the accident. The report concluded that the Applicant sustained sprain and strain injuries to the neck and back, which are included in the minor injury definition in section 3 of the Schedule. Dr. Gelman maintained the same opinion in reports dated August 10, 2021 and November 30, 2021. The other evidence before me does not upset Dr. Gelman’s opinion.
The Applicant does not suffer from any psychological impairments
27I find that the Applicant does not suffer from a psychological impairment as a result of the accident. I find the report of Dr. K. Papazoglou, psychologist, dated October 8, 2021, to be unpersuasive and prefer the reports of Dr. D. Mandal, psychologist, dated July 7, 2020 and Dr. D. Schwartzbein, dated February 1, 2022.
28I find Dr. Papazoglou’s report unpersuasive because it is anomalous to the other reports and is contradicted by the Applicant’s self-reports to the IE assessors. Dr. Papazoglou concluded that the Applicant developed significant physiological/emotional impairments as a direct consequence of the accident. Yet, the psychometric testing conducted during the telephone interview indicated mild to moderate anxiety and depression and the other medical records demonstrate no compelling evidence of psychological symptoms exhibited by the Applicant.
29The Applicant’s denial of the symptoms recorded by Dr. Papazoglou greatly diminishes the value of Dr. Papazoglou’s opinion. In the October 8, 2021 report, Dr. Papazoglou concluded that a driving assessment was required because the Applicant reported fear and anxiety while driving and travelling as a passenger in a vehicle. However, the Applicant denied any driving anxiety or associated symptoms such as avoidance behaviour, to both Dr. Mandel and Dr. Schwartzbein. Dr. Schwartzbein’s February 1, 2022 report notes that Dr. Papazoglou’s conclusions regarding significant levels of anxiety and depression were put directly to the Applicant and he denied any such symptoms.
30Both Dr. Mandel and Dr. Schwartzbein concluded that the Applicant was well-adjusted following the accident and was without any psychological problems. These psychologists both interviewed the Applicant in person, reviewed the available clinical notes and records, and came to the same conclusion – that the Applicant sustained no psychological injury as a result of the accident. I see no reason to interfere with this diagnosis.
I find insufficient evidence to conclude that the Applicant suffers from accident-related chronic pain
31The Applicant submits that he suffers from ongoing or recurrent pain lasting beyond the usual course of acute illness or injury which adversely affects his well-being. He also submits that he meets the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). The Respondent disagrees and submits that the Applicant has not been diagnosed with chronic pain and his medical records do not support the notion that he has accident-related chronic pain. The Respondent further submits that the Applicant has not demonstrated that he meets the criteria outlined in the AMA Guides. I agree with the Respondent.
32There is no evidence that the Applicant was diagnosed with a chronic pain condition. The CNRs from Dr. Shimanovsky and Mackenzie Health include no such diagnosis of a chronic pain condition and do not indicate that the Applicant suffers from an ongoing or recurrent pain that adversely affects his well-being.
33Contrary to the Applicant’s submissions, there is no evidence he meets the criteria outlined in the AMA Guides. The Applicant reported to Dr. Gelman in the August 13, 2021 report that he takes Tylenol as needed for pain and is not using any prescription pain medication or other substances. While the Applicant visited Dr. Shimanovsky and Mackenzie Health following the accident, there is no indication that the Applicant is dependent on those care providers or his family. The various examinations conducted, particularly those by Dr. Gelman, show no evidence that the Applicant is deconditioned due to disuse or fear avoidance. The Applicant returned to work as a maintenance supervisor at a food plant a on a full-time basis and remained responsible for his pre-accident duties, demonstrating no failure to restore his pre-accident function following the disability. As indicated earlier, there is clear to me that the Applicant never developed any psychosocial sequalae as a result of the accident.
34I find the opinion on Dr. Gelman to be persuasive. As previously noted, Dr. Gelman assessed the Applicant and concluded that he sustained uncomplicated sprain and strain injuries to the neck and back that fit the minor injury definition outlined in section 3 of the Schedule.
The Applicant is not entitled to the treatment and assessment plans
36The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The Applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.
Interest
37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that the Applicant is not entitled to any of the benefits claimed, it follows that no payment of benefits went overdue and no interest is payable.
CONCLUSION AND ORDER
38The Applicant sustained a minor injury as a result of the accident. He is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and beyond the $3,500.00 funding limit for a minor injury.
39The application is dismissed.
Released: December 13, 2023
__________________________
Brian Norris
Adjudicator