Licence Appeal Tribunal File Number: 21-011304/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:
Marvin Mayuyu
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Thulasi Kandiah, Counsel
HEARD: By way of written submissions
OVERVIEW
1Marvin Mayuyu (the “applicant”) was involved in an automobile accident on October 11, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Allstate Insurance (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to physiotherapy services in the amount of $2,765.00, proposed by Mississauga Active Physiotherapy Services in a treatment plan (the “OCF-18”) dated October 10, 2019, and denied on November 5, 2019?
iii. Is the applicant entitled to physiotherapy services in the amount of $2,525.00, proposed by Mississauga Active Physiotherapy Services in an OCF-18 dated February 19, 2020, and denied on February 20, 2020?
iv. Is the applicant entitled to a psychological assessment in the amount of $1,995.32, proposed by Mississauga Active Physiotherapy Services in an OCF-18 dated March 5, 2020, and denied on March 12, 2020?
v. Is the applicant entitled to psychological services in the amount of $3,042.56, proposed by Mississauga Active Physiotherapy Services in an OCF-18 dated September 9, 2020, and denied on September 22, 2020?
vi. Is the applicant entitled to physiotherapy services in the amount of $2,739.00, proposed by Mississauga Active Physiotherapy Services in an OCF-18 dated August 6, 2020, and denied on August 20, 2020?
vii. Is the applicant entitled to chiropractic services in the amount of $4,093.00, proposed by Mississauga Active Physiotherapy Services in an OCF-18 dated February 9, 2021, and denied on February 19, 2021?
viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained predominantly minor injuries and is therefore subject to treatment within the $3,500.00 limit of the MIG.
4The applicant is not entitled to any of the OCF-18s in dispute.
5Since no benefits are payable, neither interest nor an award are payable.
PROCEDURAL ISSUES
The respondent seeks to exclude evidence submitted by the applicant after the 60-day production deadline ordered by the Tribunal
6I find the respondent’s arguments fail. The respondent submitted a Notice of Motion on March 17, 2023, six days prior to its written submission deadline, that seeks to exclude certain evidence the applicant first disclosed on March 6, 2023—the same day the applicant produced his initial written submission. The respondent argues this evidence was submitted after the 60-day production deadline established at the case conference for additional documents the parties intended to rely on. The respondent says that permitting this disclosure would be prejudicial because the applicant relies on this evidence to make his MIG and treatment plan arguments, and adds that it would be unfair for the Tribunal to consider this evidence when the respondent was not afforded the same opportunity.
7The applicant says the respondent never requested any disclosures for the hearing and provided an email (dated August 12, 2022) from the respondent that confirms this. The applicant explains he shared the clinical notes and records at issue with the respondent on the same day he received them from the service provider. The applicant says excluding this evidence will be prejudicial because these documents have probative value (i.e., they are relevant).
8In reply, the respondent adds it is immaterial that the respondent did not make production requests of the applicant because it is the applicant’s onus to disclose evidence by the deadline ordered by the Tribunal. The respondent further says the applicant should have requested the records from the service provider earlier (i.e., before the 60-day production deadline elapsed) if they were so important to his case.
9I find the applicant may rely on this evidence. The documents are clinical notes and records from the same service provider who proposed all the disputed OCF-18s, so they are presumptively relevant to the issues in this matter. I further find the applicant’s disclosure on the same day he made his written submission presents limited, if any, prejudice to the respondent because the respondent was nevertheless able to respond and make submissions on this evidence in its written submissions.
10Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (the ”Rules”), specifies a party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party, disclose to the other party the existence of every document the party intends to present as evidence at the hearing. I find the applicant complied with Rule 9.2 because the Tribunal ordered the applicant to serve its written submissions and evidence on the respondent 30 days prior to the hearing. The applicant did so on March 6, 2023, and thereby met this deadline. I am not convinced the 60-day deadline relied upon the respondent applies here, because this is only for evidence responsive to items already disclosed (i.e., addendums, updates, etc.), and not all items to be relied upon by the parties as claimed by the respondent.
11Therefore, I order the evidence at issue be admitted for the purposes of the hearing, and I allow the applicant to rely on it.
The respondent seeks to strike the last three pages of the applicant’s submissions
12I find the respondent’s arguments to be persuasive. The respondent argues that the applicant’s submissions were limited to 10 pages, but that he provided 13 pages. The respondent says this non-compliance of the Tribunal’s order undermines the hearing process and prejudices the respondent.
13The applicant concedes he went over the 10-page limit established in the Tribunal’s case conference report and order. The applicant relies on Rule 3.1(a) to point out the Rules will be liberally interpreted and applied at the request of a party to facilitate a fair process and effective participation. The applicant added it was agreeable to the respondent submitting 13 pages as well.
14The case conference report and order for this matter ordered a 10-page limit on written submissions, which the parties agreed to observe. I find it is appropriate to strike pages 11-13 of the applicant’s submission. The applicant did not seek permission from the Tribunal by way of a motion in accordance with Rule 15.1 to vary the order and increase the page limits. And in any event, the extra pages submitted by the applicant pertain to the award issue, which is moot since no benefits are found to be payable. As a result, the applicant’s submissions from pages 11-13 shall be struck.
ANALYSIS
Applicability of the MIG
15I find the applicant has failed to demonstrate he should be removed from the MIG.
16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.” The applicant may be removed from the MIG if he can establish that his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
17The applicant submits that removal from the MIG is warranted by significant physical and psychological impairments as a result of the accident, as well as exacerbation of his pre-existing injuries.
The applicant’s physical injuries are predominantly minor as defined by the Schedule
18I find the applicant sustained predominantly minor injuries that do not warrant removal from the MIG.
19To be removed from the MIG because of a physical injury, the applicant must prove he sustained an injury resulting from the accident that is not minor as defined in the Schedule. The applicant’s submissions describe his injuries as headaches and dizziness, back pain, neck pain, and shoulder pain. The disability certificate (the “OCF-3”) completed by Dr. Alibhai (chiropractor) in October 2019 indicates physical injuries consisting of post-concussion syndrome, whiplash associated disorder with neck pain, a sprain and strain of the applicant’s shoulder girdle, middle and lower back, and abdominal pain. In my view, these complaints and injuries are—except for the post-concussion syndrome, headaches, and dizziness—consistent with the definition of a minor injury in the Schedule.
20I am not convinced the applicant sustained post-concussion syndrome because of the accident. The only evidence put forward by the applicant to support this condition is the OCF-3 completed by Dr. Alibhai. This is insufficient because Dr. Alibhai does not reference any medical evidence to support his conclusion, and I therefore do not know what information he relied on to form this opinion. Further, the respondent submits that chiropractors are not qualified to diagnose neurological disorders (i.e., post-concussion syndrome), and the applicant did not provide me with persuasive evidence to confirm that an impression or diagnosis of post-concussion syndrome is within the scope of chiropractic practice. I therefore placed little weight on Dr. Alibhai’s opinion.
21The applicant also submits that an insurer’s examination conducted by Dr. Alfonse Marchie (physiatrist) on September 14, 2020, diagnosed a neck injury and reduced range of motion, a lower back injury with reduced range of motion, right biceps tendinopathy, and bilateral lateral epicondylitis—all caused or exacerbated by the accident. I disagree. Dr. Marchie’s physical findings were that the applicant had full range of motion in his neck and lower back, contrary to the applicant’s claims. He confirmed the applicant had suffered only soft-tissue injuries to his neck and back as a result of the accident, which I note constitute minor injuries under the Schedule. Dr. Marchie observed the applicant had signs of possible right biceps tendinopathy and bilateral lateral epicondylitis, which, contrary to the applicant’s claim, Dr. Marchie did not believe was accident related.
22The applicant also claims he sustained a head injury when he hit his head inside the vehicle at the time of the accident. I disagree. I find the contemporaneous medical evidence is inconsistent with the applicant having sustained a head injury in the accident. As the respondent points out, the objective findings noted in the Trillium Health Partners hospital report—completed on the day of the accident—include no blurry vision or headaches. The legible portions of this report also indicate the applicant was wearing his seat belt and that air bags did not deploy. Similarly, the records of Martin Grove Medical Clinic on October 22, 2019, reference the accident but do not document any complaints of headaches or dizziness. On a balance of probabilities, I find this evidence does not support the applicant’s claims of sustaining a head injury in the accident.
23Given the above analysis of the evidence, I find the applicant has failed to prove his physical injuries resulting from the accident are not minor as defined by the Schedule.
The applicant did not sustain an accident-related psychological impairment
24I find there is insufficient compelling evidence of a psychological impairment to warrant the applicant’s removal from the MIG.
25Psychological injuries, if established, may fall outside of the MIG because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show he sustained a psychological impairment because of the accident, and that the impairment is not sequelae of minor injuries.
26The applicant submits he suffers multiple psychological and cognitive injuries that resulted from the accident, including significant decline in memory and concentration, symptoms of anxiety and depression, sexual incompetence, passive suicidal thoughts, and driving and passenger anxiety—all of which he claims negatively influence his activities of daily living.
27I am not persuaded by the psychological assessment report (dated May 21, 2020) from Ms. Fahimeh Aghamohseni (psychologist), which offered diagnoses of major depressive disorder with anxious distress (severe), somatic symptom disorder with predominant pain (severe) and vehicular phobia caused by the accident. As the respondent indicates, it does not appear Ms. Aghamohseni employed any validity measures to assess the reliability of the test results. The relevance of this is underscored by the insurer’s examination conducted four months later on September 22, 2020, by Dr. Dumitrascu (psychologist). Dr. Dumitrascu’s testing did include validity measures, and they showed the applicant’s test results were not reliable. Further, I was not pointed to evidence of Dr. Aghamohseni receiving or reviewing any clinical notes and records to corroborate what the applicant was telling her, or the test results. For these reasons, I place less weight on Dr. Aghamohseni’s findings.
28The applicant contends that Dr. Genevieve Faye Cruz (family physician) and medical professionals at Oakville Hospital diagnosed anger issues, sleeping issues, and persisting symptoms of anxiety and depression that were attributed to the accident. The respondent concurs the applicant was discharged from Oakville Hospital with psychological diagnoses, but argues the evidence does not make any attribution to the accident. So, the parties do not agree as to whether the applicant’s psychological diagnoses were attributed to the accident.
29I disagree that any clear diagnoses were offered by Dr. Cruz or Oakville Hospital. My review of the records of both Dr. Cruz and Oakville Hospital did not find evidence of any diagnoses I can reliably discern. The records refer only to symptoms of anger, depression, and anxiety as self-reported and endorsed by the applicant. It does not automatically follow that symptoms become diagnoses and the reports do not articulate clear diagnoses related to these symptoms.
30I did not attribute much weight to the applicant’s self-reports of psychological symptoms as evidence of impairment because Dr. Cruz’s referral to cognitive behaviour therapy at Oakville Hospital in March 2022 does not attribute this symptomology to the accident. Dr. Cruz’s corresponding clinical note (dated March 14, 2022) only indicates the applicant experienced low mood and anger since his accident, with no opinion expressed as to whether these symptoms resulted from the accident. Further to this, the records of Dr. Cruz and Oakville Hospital are two and a half years removed from the accident, and the applicant’s submissions did not point to any compelling evidence of ongoing psychological issues since his May 2020 assessment with Dr. Aghamohseni. I placed little weight on the four reports about the applicant’s psychological treatment in November and December 2020 because they rely on self-reported information that the applicant’s submissions do not corroborate with contemporaneous medical evidence or shown-to-be valid psychological testing.
31Given the above analysis of the evidence, I find the applicant has not shown compelling evidence of a psychological impairment resulting from the accident, and I therefore find his injuries are within in the MIG.
The applicant does not have documented pre-existing injuries or conditions that preclude maximal recovery within the MIG
32I find the applicant has not proved any pre-existing injuries or conditions that preclude maximal recovery within the MIG.
33To be removed from the MIG on this basis, the applicant must show he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if treatment is kept within the confines of the MIG.
34The applicant points to the OCF-3 completed by Dr. Alibhai, and submits Dr. Alibhai concluded the applicant suffered from pre-existing injuries in a prior car accident. The applicant also says the injuries documented by Dr. Marchie were exacerbated by the accident. These are the only submissions made by the applicant that clearly speak to pre-existing injuries or conditions.
35I am not persuaded by the applicant’s submissions. The applicant did not direct me to compelling evidence of a pre-existing condition documented by a medical professional. The applicant did not provide compelling medical evidence to show his accident-related minor injuries would be precluded from maximal recovery if treated within the confines of the MIG. Dr. Alibhai states, in the OCF-3 he completed, that the applicant recovered from his 2016 accident injuries, contrary to the applicant’s claim. And the respondent’s submissions show the applicant also reported full recovery from his 2016 accident to Dr. Marchie and Dr. Dumitrascu. So, there are three points of corroboration on the applicant’s recovery from his 2016 accident that dispute his claim of pre-existing conditions.
36Dr. Marchie does not say the injuries specified in the applicant’s submissions were exacerbated by the accident, as claimed by the applicant. I put weight on the evidence provided by the respondent, which establishes an unremarkable pre-accident medical history consisting of carpal tunnel syndrome and autoimmune arthritis per the clinical records of Martin Grove Medical Centre.
37I therefore find the applicant has not met his onus to show he has a pre-existing condition that precludes maximal recovery of his accident-related minor injuries within the MIG.
The OCF-18s in dispute
38The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to section 40(8) of the Schedule.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no benefits payable in this case, so interest does not apply.
Award
40The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant remains in the MIG, and no benefits are payable. Therefore, the respondent cannot be liable to pay an award.
ORDER
41Section 40(8) of the Schedule applies. The application is otherwise dismissed.
Released: December 19, 2023
Michael Beauchesne Adjudicator