Citation: Browne v. Intact Insurance, 2023 ONLAT 21-008481/AABS

Licence Appeal Tribunal File Number: 21-008481/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:

Elsa Browne

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Domenic Pellegrino, Counsel

For the Respondent:

Theomarcus Giannou, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Elsa Browne, the applicant, was involved in an automobile accident on November 19, 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 Intact Insurance (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The applicant submits that the denial by the respondent dated February 19, 2020, fails to comply with the strict notice requirements under section 38(8) of the Schedule. I do not agree with the applicant’s submissions that there is any violation of the notice requirements under section 38(8) for the reasons which follow.

3The applicant submits that the denial by the respondent dated February 19, 2020, fails to comply with the strict notice requirements under section 38(8) of the Schedule because the respondent does not specifically refer to the psychological report of Dr. Svetlana Gabidulina and the CNR’s of the family physician. Under section 38(8) of the Schedule, the insurer must provide the insured person with notice of what goods, services, assessments, and examinations set out in the treatment plan, the insurer will approve or refuse to pay for. The notice must include an explanation of the medical and other reasons why the insurer considers any proposed goods, services, assessments and examinations, or the cost of them, not to be reasonable or necessary. This notice must be provided within ten business days after it receives a treatment plan.

4Under section 38(11) of the Schedule, if the insurer fails to give a notice in accordance with section 38(8), it must pay for all goods, services, assessments, and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the proposed OCF-18 and ending on the day the insurer gives the notice required by section 38(8)

5The respondent submits that the denial letter is in compliance with the Schedule because it describes the basis for the injuries being categorized as minor, and the coverage being limited to the Minor Injury Guideline (“MIG”), with reference to medical evidence, in addition it is stated that a section 44 insurance examination will be arranged. Therefore, I find the EOB dated February 19, 2020, constitutes proper notice of the denial. In addition, I find no violation of section 38. The results of the IE examination by Dr. R.K. Ratti and his report were completed on July 31, 2020, and were addressed in the explanation of benefits (“EOB”) dated August 12, 2020.

6As stated, I find the EOB dated February 19, 2020, constitutes proper notice of the denial and there is no violation of section 38. The respondent states there is insufficient medical evidence to show the applicant had a pre-existing medical condition. In addition, the medical evidence does not indicate that the treatment plan for a psychological assessment is reasonable and necessary. It is stated in the EOB, that the respondent will arrange insurance examinations by a qualified health practitioner pursuant to section 44 of the Schedule. Following the Insurance Examination by Psychologist Dr. Ratti, the respondent determined based on the opinion offered in Dr. Ratti’s assessment that the treatment plan for a psychological assessment was neither reasonable nor necessary, as described in the EOB dated August 12, 2020.

7I do not agree with the applicant’s submissions respecting any violation of the notice requirements under section 38(8) for the reasons described. The applicant has failed to meet her burden to demonstrate that the insurer did not give notice in accordance with section 38(8). The applicant’s submissions, with respect to deficiencies of the respondent’s notice of denial, fail to show that the notice did not conform with section 38(8) for the reasons I described above.

ISSUES

8The issues in dispute are:

i. 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 Minor Injury Guideline (“MIG”)? The parties agree that the MIG limits have been exhausted.

ii. Is the applicant entitled to $3,196.32 for physiotherapy services, proposed by Life Point Medical Inc. in a treatment plan/OCF-18 submitted on February 24, 2020?

iii. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Life Point Medical Inc. in a treatment plan/OCF-18 dated on April 5, 2021 (OCF-18) dated February 10, 2020?

iv. Is the applicant entitled to $8,011.20 for a chronic pain treatment, proposed by Dr. Chow of Excel Diagnostics Inc. in a treatment plan/OCF-18 submitted on April 30, 2021?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. The applicant is not entitled to the treatment plans in dispute.

10Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Procedural Issues

11The respondent objects to the submission of the applicant’s affidavit sworn and filed on June 27, 2023, as the deadline for production elapsed seven months prior, on November 22, 2022. The applicant did not bring a motion to address the late filing of the affidavit, nor address in her submissions, the prejudice to the respondent. The applicant also does not address in her submissions, the procedural unfairness to the respondent by filing an affidavit late and thereby removing the respondent’s right to cross-examination and response.

12The respondent objects to the applicant’s affidavit being accepted as evidence by the Tribunal when the affidavit was provided with the applicant’s written submissions without it being provided any opportunity to cross-examine the applicant. The affidavit provides details regarding the applicant’s pre-existing impairments, psychological injuries, chronic pain, and her opinion regarding medical reports. The respondent contends it is prejudiced by being unable to cross-examine the applicant on her allegations in the affidavit.

13I agree that there is procedural unfairness to the respondent, and I note that the applicant failed to address the procedural unfairness by means of a motion to late file the affidavit nor mention in her submissions the right of the respondent to cross-examine the applicant. The applicant’s affidavit was not filed in conformity with the Case Conference Report and Order (“CCRO”) requirement for production of additional evidence no later than 60 days after the case conference on September 23, 2022. The CCRO, requires at paragraph 15, that any documents which were not previously disclosed and which the parties intend to rely on for the purpose of the hearing, shall be filed no later than 60 calendar days after the case conference.

14The respondent objects to the exchange of the affidavit well past the filing deadline addressed in the CCRO case conference order, on the basis of procedural fairness. The violation of the CCRO’s order’s production deadline requirement, denies the respondent the opportunity to cross-examine the applicant respecting the information presented in the affidavit.

15I have considered Rule 9.4 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016). Rule 9.4 sets forth that if 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 as evidence, without consent of the Tribunal. Given the prejudice to the respondent by the late filing of the applicant’s affidavit, I am persuaded that it would be procedurally unfair to place much evidentiary weight on the affidavit of the applicant in the circumstances, and I will, therefore, place little evidentiary weight on the applicant’s affidavit.

ANALYSIS

Pre-existing Injuries

16I do not find that the applicant has provided sufficient evidence to meet her burden to show that the accident aggravated her carpal tunnel syndrome preventing her from reaching maximal medical recovery (MMR) within the funding limit of the MIG.

17Section 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 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.”

18An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are 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.

19The applicant must meet all three of the following requirements in order to be removed from the MIG under section 18(2):

a. The insured person has a pre-existing medical condition;

b. The pre-existing medical condition was documented by a health practitioner before the accident; and

c. The insured person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the insured person is subject to the $ 3,500.00 limit under the MIG;

20The applicant submits that she has a history of numbness and pain in her right hand or carpal tunnel syndrome that prevents her from achieving MMR under the MIG. She relies on the report of Dr. Tom Chen dated March 29, 2019, and the CNRs of her family physician, Dr. Brian Sheffield. The respondent submits that no evidence has been submitted or medical opinion that the applicant’s pre-existing conditions would preclude her maximal recovery if she is kept within the MIG. The respondent submits that the applicant sustained at most soft tissue injuries to her neck, back, and shoulders which constitute minor injuries as defined in the Schedule.

21I agree with the respondent that the applicant’s pre-existing conditions do not preclude her maximal recovery if she is kept within the MIG. The applicant submits that she has a history of numbness and pain in her right hand. She relies on the diagnosis of Dr. Tom Chen dated March 29, 2019, that describes a diagnosis of carpal tunnel syndrome in the applicant’s right hand. However, Dr. Chen’s report describes the applicant’s carpal tunnel syndrome as mild, that she has a range of motion within normal limits, and that her condition can be addressed through ergonomic office modifications and wrist splinting. The applicant told Dr. Sheffield on two occasions (January 17, 2020 and February 4, 2020) that the carpal tunnel syndrome was aggravated by the accident, however, Dr. Sheffield did not find that the carpal tunnel syndrome was aggravated by the accident. An x-ray of the applicant’s right hand taken on January 30, 2020, shows no acute abnormality, mild degenerative changes and normal soft tissues. In addition, Dr. Svetlana Gabidulina’s psychological report, notes that the applicant stated that she has no pre-existing medical or psychological conditions.

22I do not find that the applicant has provided sufficient evidence to meet her burden that the accident aggravated her carpal tunnel syndrome resulting in her being prevented from reaching maximal recovery within the funding limit of the MIG.

Evidence of Physical Injuries

23I find the applicant’s physical impairments fall within the definition of a minor injury under s. 3 of the Schedule.

24The applicant submits that because of the accident she experienced injuries resulting in neck pain, back pain, headaches, right hand pain, insomnia, anxiety and vehicular phobia. The applicant relies on the clinical notes and records (CNRs) of her family physician Dr Brian Sheffield, who she saw on December 10, 2019, complaining of back pain, neck pain, trouble sleeping and numbness in her right hand.

25The OCF-3, Disability Certificate prepared by Solmaz Zanjani, chiropractor described the applicant’s injuries as injury to tendons and muscles at neck level, sprain and strain of the cervical spine and thoracic spine, sprain and strain of ribs and sternum, in addition, psychological impairments which the chiropractor is not qualified to offer an opinion relating to, including irritability, anger, sleep disorder and nervousness. The applicant’s affidavit sets forth at paragraph 16 that she struggles with chronic pain. However, for reasons stated earlier, I place little evidentiary weight on the affidavit based on the objections by the respondent related to procedural fairness and the prejudice to the respondent.

26I note that the applicant did not report her injuries to Dr. Sheffield until December 10, 2019, approximately three weeks after the accident. Following a physical examination, Dr Sheffield diagnosed the applicant with myofascial strain, and he recommended heat and ice compresses, and non-prescription Tylenol and Advil to address the applicant’s reports of pain. The applicant had a 60 percent range of motion on December 10, 2019. However, by June 8, 2020, the applicant describes to Dr. Sheffield, no numbness or weakness and she has a good range of motion.

27I find that Dr. Brian Sheffield and Dr. Shafik Dharamshi, General Physician, are in agreement and diagnose the applicant with minor sequelae and myofascial injuries following the accident. I find the preponderance of evidence supports that the applicant’s physical injuries resulting from the accident are treatable within the MIG. The respondent submits that the applicant was examined by Dr. Shafik Dharamshi, General Physician, who prepared a report dated July 27, 2020, addressing the applicability of the MIG and the reasonableness and necessity of the treatment plan for physiotherapy services dated February 24, 2020, in the amount of $3,196.32. Following the examination, Dr. Dharamshi diagnosed the applicant with: Whiplash-associated disorder; Grade 2/ persistent myofascial pain; chest wall contusion, persistent pain; and lumbosacral musculoligamentous strain/ persistent myofascial pain. He determined that the applicant’s overall prognosis was favourable, and that the examination did not reveal any impairments as a result of the accident. Dr. Dharamshi concluded that the applicant’s injuries were minor sequelae treatable within the limits of the MIG.

28I note that both Dr Sheffield and Dr Dharamshi diagnose the applicant with minor sequelae and myofascial injuries following the accident. I do not find that the applicant has provided sufficient medical evidence to meet her burden that the accident caused physical injuries preventing her from reaching maximal medical recovery within the limits of the MIG.

Chronic Pain Syndrome

29I determine that the applicant’s evidence is insufficient to demonstrate that her functionality was aggravated by the accident resulting in her injuries removing her from the MIG. The applicant has failed to establish that any of the pain that she suffers from affects her functionality and is not “mere sequelae” of soft tissue injuries from the subject accident which can be treated within the MIG limit.

30The applicant submits that Dr. Sheffield’s CNRs reveal that the applicant had ongoing, unresolved chronic pain, particularly in her back because of the accident. The respondent submits that the applicant sustained, at most, soft tissue strain injuries to her neck, back and shoulders which constitute minor injuries. Therefore, the applicant does not qualify for treatment outside the MIG.

31The respondent submits that chronic pain is a severe, debilitating condition distinct from ongoing and recurrent pain. The respondent refers to the Tribunal decision in 16-000438 v. Personal Insurance, 2017 CanLII 59515, where the Tribunal described the necessary requirements for a diagnosis of chronic pain to move an insured outside the MIG (paragraphs 28 and 29):

For chronic pain to be more than mere sequelae from the soft tissue injuries enumerated in section 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effects on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae. Unless the applicant provides evidence that the pain, she experiences contains these elements, I find the pain is mere sequelae of the minor injury.

32The respondent submits that the applicant was employed full-time as a collection agent at the time of the accident. According to Dr. Dharamshi’s report, the applicant did not cease working after the accident aside from missing two to three days of work. The respondent submits that the applicant remains working at the same position in a full-time capacity and there is no evidence to suggest that she missed any additional time from work following the accident. The applicant described to Dr. Dharamshi that she manages her self-care activities without any significant difficulty and she is able to manage her housekeeping and home maintenance activities with help from her husband. The applicant, at the examination by Dr. Dharamshi, demonstrated no discomfort or any abnormalities while walking, standing, or sitting throughout the interview and physical examination.

33The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that their injuries are not minor, or they have a pre-existing condition that would prevent maximal recovery within the MIG.

34Having considered the evidence of the applicant’s functionality, I determine that the applicant’s evidence is insufficient to demonstrate that the applicant’s functionality was affected by the accident resulting in her injuries being considered outside the MIG. I note the findings of Dr. Shafik Dharamshi, General Physician, addressing the applicability of the MIG. Following examination, Dr. Dharamshi diagnosed the applicant with whiplash-associated disorder, Grade 2/ persistent myofascial pain; chest wall contusion, persistent pain; and lumbosacral musculoligamentous strain/ persistent myofascial pain. He determined that the IE examination did not reveal any impairments as a result of the accident. Dr. Dharamshi concluded that the applicant’s injuries were minor sequelae treatable within the limits of the MIG.

35The respondent submits that the applicant describes the ongoing nature of her injuries in Dr Sheffield’s CNR’s and how much time has elapsed. However, as submitted by the respondent, evidence of ongoing pain over a period of time is insufficient to warrant an applicant’s removal from the MIG. The applicant relies on the CNR’s of Dr. Sheffield where she describes chronic back pain, however, as stated, Dr. Sheffield does not prescribe pain medication. Dr Sheffield orders diagnostic tests which do not show injuries other than minor sequelae following the accident. The respondent submits the applicant has failed to establish that any of the pain that she suffers from affects her functionality and is not “mere sequelae” of soft tissue injuries from the subject accident which is within the MIG.

Psychological Injuries

36The applicant has failed to meet her burden demonstrating that she experiences psychological injuries caused by the accident that would remove her from the MIG. The applicant submits that the CNRs of Dr. Sheffield reveal that she experiences anxiety, insomnia, and vehicular anxiety. In addition, the applicant relies on the psychological screening report and assessment of Dr. Svetlana Gabidulina. The respondent submits that the applicant experiences low levels of depression and anxiety. I agree with the respondent that the applicant has not met her burden demonstrating that she experiences psychological injuries that would remove her from the MIG.

37The applicant submits that psychologist, Dr. Svetlana Gabidulina, completed a Psychological Screening Report on January 13, 2020, providing a provisional diagnosis of situational (isolated) phobias, moderate (automobile anxiety – driver/ passenger) and depressive episode, moderate. Dr. Svetlana Gabidulina prepared the treatment plan dated February 19, 2020, and her psychological assessment report dated June 11, 2021.

39The respondent submits that the applicant was examined by Dr. Rakesh K. Ratti, a Psychologist, who prepared a report dated July 31, 2020, to assess the applicability of the MIG and the reasonableness and necessity of a psychological assessment in the amount of $2,000.00. The applicant underwent psychological testing including the Beck Depression Inventory and Beck Anxiety Inventory tests, that Dr. Svetlana Gabidulina administered, for the purpose of Dr. Ratti’s psychological assessment.

40Dr. R.K. Ratti opined that the applicant’s responses to testing suggested that she be placed in the minimal range of psychological symptoms, which coincides with the test results by Dr. Svetlana Gabidulina. Dr. Ratti concluded that from a psychological perspective, the applicant did not present with any psychological concerns which were more than minor sequelae treatable within the limits of the MIG.

41I find that the applicant has not met her burden by providing medical evidence that any of her psychological impairments are not treatable within the MIG.

Minor Injury Guideline

42Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required, as the MIG limits have been exhausted.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

44I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. Accordingly, the applicant is not entitled to any treatment plans in dispute.

45Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.