Citation: Rajca v. Intact Insurance Company, 2023 ONLAT 21-008738/AABS

Licence Appeal Tribunal File Number: 21-008738/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:

Matthew Rajca

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Michael Courneyea, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Matthew Rajca, the applicant, was involved in an automobile accident on September 22, 2020, 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 the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

SUBSTANTIVE ISSUES

[2] The 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 limit and in the Minor Injury Guideline? Note: The parties agree the MIG limits have been exhausted. ii. Is the applicant entitled to $1,097.00 for chiropractic services, proposed by Shariff Chiropractic Professional Corporation in a treatment plan/OCF-18 ("plan") dated December 7, 2020? iii. Is the applicant entitled to $2,144.93 for a psychological assessment, proposed by Dr. Peter Waxer in a plan dated February 5, 2021? iv. Is the applicant entitled to $2,593.76 for psychological services, proposed by Dr. Peter Waxer in a plan dated February 15, 2021? v. Is the applicant entitled to $4,819.24 for Medical Marijuana Treatment, proposed by Medical Marijuana Consulting Group in a plan dated August 8, 2021? vi. Is the applicant entitled to $2,460.00 for a physiatry assessment, proposed by Complete Rehab in a plan dated December 16, 2021? vii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant? viii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG has been exhausted.

4The applicant is not entitled to any treatment plans in dispute, as the MIG limits have been exhausted.

5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule. Nor am I satisfied that any payment for benefits was unreasonably withheld or delayed, therefore the applicant is not entitled to an award pursuant to s. 10 of Reg. 664.

PROCEDURAL ISSUES

Applicant's submissions length breached the Tribunal's order

6The respondent submits that the applicant has failed to abide by the submission page limits set out in the Motion Order ("MO") dated March 30, 2023. The MO indicates that the applicant's and respondent's written submissions will be limited to 12 pages in length, but the applicant's submissions exceeded this amount.

7The respondent submits that it would be prejudicial if it was required to adhere to the 12-page limit while the applicant exceeded it. The respondent also submits that the font size used by the Applicant appears to be smaller than the 12-point font required as per the Case Conference Report and Order dated August 19, 2022. The respondent seeks to strike the applicant's submissions entirely or alternatively, to strike any submissions beyond the 12-page limit. The applicant did not make any reply submissions on this issue.

8Pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the 12-page limit laid out in the MO.

[9] I exercised my discretion to strike all submissions in excess of the 12-page limit for the following reasons: i. After the Case Conference, the applicant brought a motion to extend the page limit from 10 pages to 17 pages. During the Motion Hearing, Adjudicator Jarda considered the issues in dispute, the applicant's submissions and determined that 17 pages would excessive. She partially granted the applicant's motion and increased the page limit to 12 pages, despite stating that the number of issues in dispute did not materially change. As the applicant's motion had already been adjudicated before this hearing and was granted a partial approval, I find that the applicant is obliged to comply with the permitted page limit; ii. Pursuant to Rule 3.1, the Tribunal has the obligation to facilitate a fair, open and accessible process to allow effective participation by all parties, and to ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. This obligation extends to holding each party to any procedural orders issued by Tribunal, unless the Tribunal is satisfied there is a good reason not to. In this case, I am not satisfied that the excess pages should be allowed; iii. As the Motion Hearing (i.e. to amend the stipulated page limit) took place on March 27, 2023, I find that there was sufficient time for the applicant to amend its submissions to adhere to the stipulated page limit; iv. The respondent's submissions adhered to the stipulated page limit; and v. Finally, I find the applicant's non-compliance with the specified page limit to be a blatant breach of the Tribunal's previous Order. Clearly, the applicant made a tactical decision to breach the MO and accepted the risk of potential exclusion of its submissions in excess of the page limit.

ANALYSIS

The applicant remains in the Minor Injury Guideline (MIG)

10Section 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."

11An insured 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 from any accident-related minor injury 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.

12The applicant submits that he suffers from a psychological impairment and chronic pain as a result of the accident and these injuries fall outside of the MIG and is therefore entitled to treatment beyond the $3,500.00 limit. He relies on the clinical notes and records (CNRs) of his family doctor, Dr. Matthew D'Mello, an assessment report by Dr. Anureet K. Garg, physiatrist, an assessment report dated February 4, 2022, by Dr. S. W. Joseph Wong, physiatry consultant, the assessment reports of Dr. Peter Waxer, psychologist, and the CNRs from Lakeridge Hospital and from Advance Health Psychotherapy and Psychological Services (AHPP).

13The respondent disagrees and submits that the applicant has insufficient evidence to meet his evidentiary onus that he should be taken out of the MIG. The respondent relies on the CNRs of the applicant's treating physicians which revealed that the applicant was diagnosed with a whiplash injury on more than two separate visits and its Insurer Examination (IE) reports in support of its position.

The applicant's psychological impairment does not remove him from the MIG

14I am not persuaded that the applicant suffered an accident-related psychological impairment that warrants removal from the MIG.

15The applicant relies on the CNRs of Dr. D'Mello, his family physician, the s. 25 psychological assessment report dated February 15, 2021, by Dr. Peter Waxer, psychologist, the CNRs from AHPP and Lakeridge Hospital as evidence that he sustained a psychological impairment as a result of the accident that removes him from the MIG.

16The respondent submits that the applicant did not report any post-accident psychological symptoms to Dr. D'Mello after the accident. The respondent also submits that the applicant relies on the CNRs from AHPP which were not previously disclosed by the applicant, and the CNRs from Lakeridge Hospital which were not exchanged within the timelines as set out in the Case Conference Report and Order dated August 19, 2022. It argues that procedural fairness requires the Lakeridge Hospital records to be excluded and that it would be unfairly prejudiced if the applicant is permitted to rely on such evidence that was not disclosed by the Tribunal-imposed deadlines.

17Section 15(1) of the Statutory Powers Procedure Act allows me to receive and consider all evidence that is relevant to the subject-matter of the proceeding. Though I am mindful of procedural fairness to the respondent, the respondent did not elaborate on what prejudice it would suffer if the said records were allowed into evidence. I am satisfied that the impugned medical records are relevant to this hearing and therefore, I exercised my discretion to consider all of the evidence before me and assigned the weight I deemed appropriate in order to make a determination on the issues in dispute.

18Upon review of the evidence, I agree with the respondent's submission that there is no post-accident reporting of any psychological symptoms in Dr. D'Mello's CNRs after the accident. I am persuaded by the CNRs of Dr. D'Mello to be persuasive, in particular on December 3, 2020, where Dr. D'Mello affirmed that the applicant did not report or make any complaints of anxiety or insomnia after the accident and Dr. D'Mello stated "I stand by my report, however if [the applicant feels that he was experiencing these symptoms] and just forgot to report to me, I am happy to complete the form again with addendum that he forgot to report symptoms." There was no evidence that Dr. D'Mello subsequently completed any forms or addendums to include any additional alleged symptoms.

19Further, Dr. D'Mello's CNR dated January 26, 2021, noted that "neck pain -? anxiety (sic), his lawyers (sic) believes he has ongoing issues with anxiety and I think this is fair(;) will refer for psychological assessment more for insurance...". This demonstrates that Dr. D'Mello did not independently opined that a psychological assessment was medically required or warranted, but rather for insurance purposes only as suggested by the applicant or his counsel.

20The applicant also relies on Dr. Waxer's report dated February 15, 2021, and his diagnosis of Acute Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, Specific Phobia: Situational Type: Vehicular, and Persistent Somatic Symptom Disorder with Predominant Pain; and opined that 12 to 16 sessions of cognitive behavioural psychotherapy is reasonable and necessary for the applicant and the prognosis remains guarded. Dr. Waxer opined that the applicant's psychological impairment would fall out of the treating limits of the MIG.

21I accept the respondent's submissions that Dr. Waxer did not review any medical documents from the applicant's treating physicians and only relied on the subjective reporting from the applicant. Dr. Waxer's assessment report was dated February 15, 2021, and during this period, there is no corroborating and contemporaneous medical evidence showing the applicant reported or was suffering from any psychological symptoms or psychological impairment since the accident. I note that Dr. D'Mello's CNRs end on October 12, 2021. Although Dr. Waxer administered six psychometric tests during the assessment, his findings do not appear to be consistent with the rest of the applicant's CNRs at the time.

22The applicant submits that Dr. D'Mello referred the applicant to Lakeridge Hospital for a psychiatry consultation on October 25, 2022, and relies on the CNRs dated from October 25, 2022, by Dr. Muhammed Zakaria, physician at Lakeridge Hospital. However, as previously mentioned, Dr. D'Mello's CNRs ends in October 2021 with no prior complaints of psychological symptoms. There are no CNRs from other treating physicians with respect to the applicant's psychological symptoms during the period from October 2021 until October 2022. I find that there is a lack of compelling and contemporaneous evidence showing a causal link between any psychological symptoms with the subject accident.

23On November 17, 2022, Dr. Zakaria diagnosed the applicant with chronic major depression and recommended psychoeducation and medication to treat depression. It is unclear from the CNRs whether Dr. Zakaria administered any psychometric testing or whether he relied solely on the applicant's self reports. The applicant submits that his medical records and assessment reports are compelling evidence to be removed from the treating limits of the MIG. Submissions are not evidence and there is no corroborating and contemporaneous evidence to support Dr. Zakaria's diagnosis.

24I find Dr. Marc Mandel's IE psychological paper review report dated June 2, 2021, to be more in line with the rest of the applicant's CNRs and medical records. Dr. Mandel noted that he was asked to undertake a paper review to determine whether there is objective psychological impairment or disability as a result of the accident that would warrant intervention beyond the treating limits of the MIG and whether the treatment plan proposed by Dr. Waxer is reasonable and necessary. Having previously evaluated the applicant in person on April 28, 2021, Dr. Mandel reviewed the applicant's updated medical documentation and reports including Dr. Waxer's report dated February 15, 2021, and opined that "[i]t appears from the response to clinical interview and psychological testing during direct assessment, in conjunction with current document review, there is a lack of consistent objective information present that would support [a] poor prognosis, DSM V diagnosis ... or suggest that he suffers clinically significant symptoms [of] substantial psychological impairment or disability as a result of the subject motor vehicle accident at this time." The applicant did not make any reply submissions with regards to Dr. Mandel's report.

25I find that the applicant has not sustained any psychological impairments as a result of the accident which warrants his removal from the MIG.

The applicant has not proven he has chronic pain with functional impairment as a result of the accident

26I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

[27] For a person to be taken out of the MIG due to chronic pain, there must be an effect on their functionality. While not binding, the Tribunal has consistently referred to the six criteria provided in American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th ed. (the "AMA Guides") as an interpretive tool for evaluating chronic pain claims. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established: i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; ii. Excessive dependence on health care providers, spouse, or family; iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain; iv. Withdrawal from social milieu, including work, recreation, or other social contacts; v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

28More is required to establish to what extent a chronic pain condition, be it syndrome or "chronicity of symptoms", affects functionality. This opinion must be supported by medical evidence that establishes an applicant's functionality is impaired and that the chronic pain is the cause of the disability.

29The applicant submits that he suffers chronic pain as a result of the accident. The applicant relies on the physiatry assessment report by Dr. S. W. Joseph Wong, dated February 4, 2022, who diagnosed the applicant with myofascial injury of the right-side cervical spine paraspinal muscles, myofascial injury of the right-side thoracic spine muscles, post-traumatic insomnia, psychological problems, chronic pain and chronic pain syndrome. Dr. Wong applied the six criteria provided in the AMA Guides and opined that the applicant met all six criteria in reaching his diagnosis of chronic pain.

30I am not persuaded by Dr. Wong's finding that the applicant has met all six criteria of the AMA Guides because his findings are inconsistent with other contemporaneous evidence about the applicant.

31There is limited evidence from the applicant's medical records of over dependence on healthcare providers or spouse or family members. The evidence showed that he remained independent in his self-care and housekeeping tasks, albeit some difficulty with heavy items such as laundry or groceries. He was able to return work in around October 2021, even though he was on modified duties. There is limited or little evidence of any deconditioning as the evidence showed that he returned to work. I am not directed to any evidence of any functional impairment as a result of chronic pain. None of the applicant's treating physicians CNRs indicated that the applicant would have difficulty in restoring to pre-injury function such that physical capacity is insufficient to pursue work, family or recreational needs. There is also little evidence on the applicant's abuse or reliance on medications beyond the recommended duration. As such, it is difficult to find the applicant's subjective complaints are evidence of a chronic pain condition that warrants removal from the MIG.

32Although the applicant submits that on July 16, 2021, Dr. D'Mello diagnosed the applicant with chronic pain, prescribed an increased dose of gabapentin and referred the applicant to a physiatrist, again, I find that there is little evidence of abuse of or dependence on prescription drugs or other substances beyond the recommended duration.

33The applicant tendered only one CNR entry dated July 20, 2021, from Dr. Anureet Garg, physiatrist, where he diagnosed the applicant with right side neck pain, combination of myofascial pain and facetogenic pain and prescribed Baclofen and recommended cervical facet injections or medial branch blocks. I find that Dr. Garg did not diagnose the applicant with chronic pain. There is evidence that Dr. Garg recommended pain relief injections to the applicant; however, there was no further evidence from the applicant that he followed through with any injections to relieve the pain. I find that there is no contemporaneous evidence to support the applicant's claim.

34I find the s.44 Insurer Examination (IE) psychological assessment report dated December 31, 2021, by Dr. Michael Hanna, to be consistent with the applicant's medical evidence. Dr. Hanna opined that "there is no objective evidence of more than sprain/strain type injury to his trapezius muscles. There was no evidence of radiculopathy, myelopathy or neuropathy. His injuries would be considered a "minor injury" as defined by the MIG." He also opined that the applicant sustained temporary soft tissue impairments affecting his neck as a result of the subject accident which typically resolves within 8 to 12 weeks.

35Given the above reasons, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain because there is no evidence before me that his accident-related injuries affected his functionality.

36I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

37Having determined that the applicant sustained minor injuries that are treatable within the MIG and that the MIG has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is found to be within the treating limits of the MIG, no benefits are payable to the applicant and therefore no interest is payable.

Award

39The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As no benefits are payable to the applicant, the respondent cannot have been found to have unreasonably withheld or delayed payments of benefits. No award is payable.

ORDER

40The applicant is found to have sustained predominantly minor injuries within the definition of s. 3 of the Schedule and therefore is held within the treating limits of the MIG. As the MIG limit has been exhausted, no further benefits are payable.

41The applicant has not demonstrated that his injuries warrant removal from the MIG or that the OCF-18s are reasonable and necessary.

42Given that there are no benefits owed nor any payments unreasonably withheld or delayed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule or an award.

43The application is dismissed.