Licence Appeal Tribunal File Number: 20-012383/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:
Christine Osei-Kumi
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Ardian Haruni, Counsel
For the Respondent: Ranisha Fernando, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Christine Osei-Kumi (“COK”), was involved in an automobile accident on January 7, 2019, and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Certas denied her claims for benefits based on its determination that she sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (the “MIG”). COK disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
a. Are COK’s injures predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?
b. Are the medical benefits recommended by Toronto Medical Centre, reasonable and necessary as follows:
i. $1,970.00 for a neurological assessment in a treatment plan (OCF-18) dated May 17, 2019, and denied on May 28, 2019?
ii. $1,656.81 for chiropractic treatment in an OCF-18 dated May 10, 2019, and denied on May 17, 2019?
iii. $1,995.33 for a psychological assessment in an OCF-18 dated April 4, 2019, and denied on April 18, 2019?
c. Is Certas liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to COK?
d. Is COK entitled to interest on any overdue payment of benefits?
RESULT
3COK has not met her burden of proof. She is subject to treatment within the MIG and is not entitled to any of the claimed benefits. No interest is payable.
4COK is not entitled to an award.
Procedural ISSUES
Improper Reply Submissions
5While Certas did not raise the issue, upon review of the submissions, I find that COK’s reply submissions state and restate her position on the OCF-18s, including referring to various treatment provider opinions and other facts already addressed in her initial submissions.
6It is well settled that the purpose of reply submissions is for the party who bears the onus in the dispute to respond to any issues that were raised in the opposing party’s submissions, which could not have reasonably raised in initial submissions. Reply submissions do not present an opportunity to raise new issues that should have been addressed in initial submissions, or, as it relates to the subject proceeding, to restate submissions, evidence and arguments.
7It would also be a procedural unfairness pursuant to Rule 3.1(a) of the Tribunal’s Common Rules of Practice & Procedure for me to consider these submissions, as the respondent does not have the right of further reply. For these reasons, COK’s rely submissions are struck and will not be considered when rendering my decision on the substantive issues.
Exclusion of Evidence
8On October 21, 2020, filed her application with the Tribunal. A case conference was held on March 31, 2021, with a written hearing scheduled for November 19, 2021. The Tribunal Order listed August 13, 2021 as the production deadline and October 8, 2021 as the deadline for additional expert reports and addendums.
9Certas submits that it did not receive any productions or receive any correspondence from counsel until October 13, 2021, wherein updated clinical notes and records (“CNRs”) from COK’s family doctor, Dr. Gupta were provided.
10On October 22, 2021, the due date of COK’s initial submissions, counsel advised the respondent counsel that he intended to adjourn the hearing to January 2022. On October 25, 2021, respondent counsel advised that it did not consent to an adjournment of the written hearing the reason of “not available” was a sufficient reason to adjourn the hearing. Applicant counsel brought a Motion to extend the production deadlines, and the Motion Hearing was scheduled for October 27, 2021.
11Applicant counsel failed to attend to address his motion, and the Motion hearing was adjourned to November 25, 2021. At the November 2021 Motion hearing, the adjudicator accepted applicant counsel explanation that he was unavailable due to a family emergency, and the adjournment was granted. The written hearing was rescheduled for March 31, 2022, with the following production and submission deadlines:
a. Applicant’s submissions and evidence due: March 7, 2022
b. Respondent’s submissions and evidence due: March 21, 2022
c. Reply submissions due: March 28, 2022
d. Production deadline: January 21, 2022. Subsequent addendum reports deadline: February 25, 2022.
e. Proof of best efforts to obtain documents prior to August 13, 2021, done immediately, but no later than December 3, 2021.
12Certas submits that after the November 26, 2021 Motion Order was released, there was no contact from applicant counsel until February 8, 2022, when the updated family physician records were provided. I note the request letter for these records is February 7, 2022.
13In addition to the above, the initial submissions required to be filed by March 7, 2022, were not filed until March 12, 2022.
14As a result of the actions of applicant counsel, Certas requests that the productions tendered on February 8, 2022 be excluded from consideration for the purposes of this written hearing. Its position is that having not alerted Certas that the productions may be delayed, not providing any request letters for productions, as per the November 26, 2021 Motion Order, and twice missing production and submission deadlines amounts to a frustration of the Tribunal’s procedural process.
15As a remedy, Certas relies on Rule 9.4 of the LAT Rules, which provides that if a party fails to comply with a direction with respect to disclosure, the party may not rely on the document as evidence without the consent of the Tribunal. Certas relies on the decision, 18-002569 v. Aviva Insurance Canada1. In that decision, the applicant missed the Tribunal’s production deadline in an Order. The adjudicator held that the: i) failure to make disclosure as required by the Tribunal frustrates the Tribunal’s ability to determine issues and the parties’ ability to make full and fair submissions;’ and ii) where a party fails to follow Tribunal Orders and Directions without sufficient or persuasive reasons, there should be consequences.”
16I find the adjudicator’s comments to be persuasive. Given the similar circumstances before me with the actions of applicant counsel, I agree with the approach taken by the adjudicator. Applicant counsel actions, including not requesting any relief for the failure to meet the productions and submission deadlines; not bringing a motion prior to the hearing seeking an extension to the document exchange/submission deadline date once he realized he failed to comply with the Order; and failing to address the issue in submissions or on reply amounts to a lack of consideration for the Tribunals’ process.
17Accordingly, I grant Certas’ request to exclude the February 8, 2022 clinical notes and records of COK’s family physician, Dr. Gupta.
ANALYSIS
Applicability of the MIG
18Section 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 in accordance with the MIG. 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.” An 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 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.
19An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). In this case, the evidence does not support a removal from the MIG as a result of psychological impairment, which, as the evidence indicated, was not a result of the accident. In H.P.’s case she argues that she should be removed from the MIG due to an accident-related psychological impairment.
Did COK suffer predominantly minor injuries?
20I find that the medical evidence indicates that COK suffered predominantly minor physical injuries as a result of the accident. Further, I find that COK did not suffer any psychological impairments or chronic pain as a result of the accident.
21COK submits that the injuries and impairments she sustained as a result of the accident, noted in the January 17, 2019 Disability Certificate (“OCF-3”) prepared by Dr. Nabavi justify further treatment beyond the MIG limits.
22In addition to the OCF-3, COK relies on various CNRs from Dr. Gupta. I note that post-accident, COK saw Dr. Gupta four times for accident-related injuries.
f. January 8, 2019 – noted MVA occurred the day before. Presented with pain in upper neck and shoulder, back pain and headaches. Diagnosed with WAD injury and prescribed pain medicine;
g. January 30, 2019 – MVA mentioned. Noted inability to move left arm due to pain, improved, function returned, but pain comes and goes. Reports difficult with walking, then settled. Currently reports pain in bilateral calves and upper back. Better with physio, diagnosed with muscular strain;
h. March 30, 2019 – follow-up on MVA. Neck pain on and off. Diagnosed with muscle strain; and
i. October 23, 2021 – 2019 MVA mentioned. Now complaining of shoulder and neck pain, headaches, which started two weeks ago.
23In response, Certas argues that COK’s injuries are soft-tissue injuries that fall within the definition of minor injuries under the Schedule. Certas points to the medical documentation that does not support that COK suffered anything more than minor injuries. Further, it submits that there is no evidence of any psychological impairment or that COK suffers from chronic pain as a result of any accident-related injuries.
24I agree with Certas. On the evidence, I find the injuries listed in the medical documentation consistently fall within the definition of predominantly minor. There is no MIG Discharge Report, to suggest that COK’s physical injuries and alleged pain are of such a severity that treatment beyond the MIG limit is required. None of the impairments indicated by Dr. Nabavi are considered to fall outside of the MIG. The sprain and strain injuries are not atypical, and diagnostic imaging also confirmed no abnormalities. Certainly, the sparse CNRs do not support COK’s allegations that her physical injuries are of a severity warranting treatment beyond the MIG.
25I note in the OCF-3 that Dr. Nabavi indicated a duration of 9-12 weeks, which is indicative of typical sprain and strain-type injuries. I also note that COK returned to work, and in fact, only took seven days off of work post-accident.
26There is no evidence that COK made any accident-related psychological complaints, and I have not been directed to any evidence of any neurological issues that would require further investigation. I agree with Certas that there is no indication that COK continues to complain of her accident-related issues in any consistent manner, nor has she continued to seek treatment for same.
27There is no corroborating evidence that any accident-related impairments affect COK on a daily basis. There is no evidence of any emotional difficulties that identify a clinical diagnosis of psychological impairments as a result of the accident. Further, there is no evidence of a pre-existing condition documented by a medical practitioner, that would preclude her from recovery if she was kept within the MIG.
28Lastly, I find no evidence that COK suffers from chronic pain or suffers any functional impairment due to pain. Dr. Gupta’s records are not indicative of evidence of chronic pain. None of the medical documentation show evidence of any functional impairment, no significant dependence on healthcare providers, there is no evidence of treatment after May 2019. As indicated earlier, the OCF-3 notes a return to work not long after the accident, further indicating that she does not suffer from functional impairment due to chronic pain.
29Accordingly, COK has failed to satisfy her onus that she suffered any injuries or impairments that warrant removal from the MIG, or that would require treatment beyond the MIG limits.
AWARD
30COK made no submissions on the issue of an award.
31Having found that she is not entitled to any benefits beyond the MIG limit, Certas cannot be found to have unreasonably withheld or delayed payment of any benefits.
32Accordingly, no award is payable.
CONCLUSION
33COK has not demonstrated that she sustained injuries as a result of the accident that warrant removal from the MIG. As COK’s injuries are predominantly minor, an analysis of the disputed OCF-18s is not necessary. As no benefits are overdue, no interest is payable.
34COK is not entitled to an award.
Released: January 17, 2023
Derek Grant
Adjudicator
Footnotes
- 180002569 v. Aviva Insurance Canada 2019 CanLII 22214 (ON LAT)