Citation: Olaleye v. The Commonwell Mutual Insurance Group, 2023 ONLAT 20-010214/AABS

Licence Appeal Tribunal File Number: 21-001623/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:

Wosilat Olaleye

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

Asad Ali Moten

APPEARANCES:

For the Applicant:

Omar Makhatadze, Counsel

For the Respondent:

Cecil Jaipaul, Paralegal

HEARD:

By way of written submissions

1The applicant (“Applicant”) was involved in a motor vehicle accident on December 1, 2016. She seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2The Applicant's claims to the respondent insurance company ("Respondent") were denied; she now appeals to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the "Tribunal") for resolution of these claims.

3The Applicant withdrew a number of issues at a case conference. Remaining at issue between the parties are some of the Applicant's claims for various medical benefits. A threshold issue is whether the Applicant falls under the Minor Injury Guideline ("MIG") because her injuries are predominantly minor as defined in the Schedule.

4The Applicant argues that the Respondent's denial letters are deficient and therefore not valid. The Applicant further argues that she has suffered psychological, chronic pain, and other injuries that remove her from the MIG. As a result, she argues, the treatment plans proposed are reasonable and necessary.

5The Respondent argues that the Applicant's injuries do not remove her from the MIG. The Respondent also argues that the Applicant's materials should be struck as a result of non-compliance with an order. Further, the Respondent argues that the proposed treatment plans are not reasonable or necessary.

ISSUES

6The issues to be decided are:

a. Are the Applicant’s injuries predominantly minor as defined in section 3 of the MIG and therefore subject to treatment within the $3,500.00 limit of the MIG?

b. Is the Applicant entitled to a medical benefit in the amount of $2,871.03 for chiropractic services, denied May 22, 2019?

c. Is the Applicant entitled to a medical benefit in the amount of $1,796.79 for occupational therapy assessment, denied November 12, 2019?

d. Is the Applicant entitled to interest on any overdue payment of benefits?

e. Is the Respondent entitled to costs because the Applicant has acted unreasonably, frivolously, or in bad faith in a proceeding?

RESULT

7I find that, for the reasons below, the Applicant has not satisfied her onus to prove, on a balance of probabilities, that her injuries, as suffered in the car accident, are not predominantly minor. Consequently, the Applicant is not removed from the MIG and are subject to the $3,500.00 limit.

8The Applicant's complaints of psychological injuries and chronic pain are confounded by a subsequent accident within 10 months of the subject accident. The Applicant's psychological assessments are inconsistent, and I prefer the evidence of the Respondent in this regard. The Applicant's chronic pain assessment does not diagnose the Applicant with chronic pain syndrome, nor does the totality of the evidence demonstrate a significant effect on the Applicant's daily living. Radiculopathy, as a potential injury the Applicant suffered in the accident, has not been demonstrated through any imaging or other testing.

9Given my findings on whether the Applicant is subject to the MIG, and because the Applicant's limits under the MIG have been exhausted, I find it is not necessary for me to determine whether the proposed treatment plans are reasonable and necessary. The Applicant is also not entitled to interest on any overdue payments.

10The Applicant has not acted unreasonably, frivolously, or vexatiously to justify a costs award in favour of the Respondent.

BACKGROUND

11The Applicant was in her car, traveling on Mississauga Road, the morning of December 1, 2016. Her car was struck from behind, pushing her car forward and into the back of the car in front of her.

12The Applicant reported sustaining injuries on her neck, upper shoulders, thighs, lower back, and hips.

13The Applicant sought benefits under her husband's insurance policy.

14On December 2, 2016, the Applicant went to her family doctor. She complained of pain, sleep issues, and fatigue. She was prescribed medication and referred to a pain clinic. The doctor's notes indicate normal range of motion in the Applicant's back, neck and shoulder.

15On December 9, 2016, physiotherapist Reshma Shetty assessed the Applicant and completed an OCF-3 form. On the form she noted the Applicant's injuries as sprain, strain, radiculopathy in the lumbar region, sleep disorders, anxiety disorders, malaise and fatigue, and pain in limbs. Ms. Shetty also checked boxes indicating that the Applicant had suffered "a complete inability to carry on a normal life" and "a substantial inability to perform the housekeeping and home maintenance services that [she] normally performed".

16Shortly thereafter, the Applicant began physiotherapy and other treatments. She continued these for a considerable length of time – as long as she had the medical benefits to do so.

17In January 2017, the Applicant began seeing a new family doctor. On February 7, 2017 the Applicant reported to her doctor neck and back pain, and the doctor's notes indicate mild tenderness in the trapezius and lumbar spine area.

18Doctor's notes from a June 2, 2017 visit to another doctor indicate that since the accident, the Applicant experienced neck and back pain, tenderness in her spine, muscle stiffness across her back, and limited movement of her shoulder.

19A few days later, on June 5, 2017, the Applicant visited her family doctor. She reported sleep problems, anxiety, stress, anger, and irritability, all beginning after the accident. The Applicant requested that she be referred to a psychologist.

20An ultrasound done in June 2017 found mild degenerative change in her upper back and both of her shoulders. The cause of this change could not be determined on the record before me.

21The Applicant was in a subsequent motor vehicle accident, while driving, in September 2017. While the Tribunal has no evidence of the Applicant's injuries, the Respondent submits that the Applicant's car suffered $4,800 of damage in this collision. The Applicant has not refuted this submission.

22The next visit to the Applicant's family doctor was on October 20, 2017, after the subsequent accident. The Applicant reported that she continued to have neck, shoulder, and back pain. The doctor's notes indicate a normal range of motion, with mild muscle spasms in her back.

23On February 2, 2018, the Applicant again made the same complaints to her family doctor, and her family doctor again noted the same observations as at her October 20, 2017 visit.

24On February 20, 2018, the Applicant complained to her family doctor about the continuing pain, and also that she felt depressed and had poor concentration. She described that her sleep was not good, and that she would like to try psychotherapy. Her family doctor prescribed Cymbalta and the Applicant indicated she was agreeable to trying it.

25On March 6, 2018, the Applicant reported to her family doctor that her neck, shoulder, and back pain was better, and that her mood was better though her sleep was unchanged. The Applicant had been taking Cymbalta at that point.

26On March 19, 2018, the Applicant was referred to William Osler Health System ("Osler") for a consultation with Dr. Lansang. The doctor's notes describe the Applicant's pain as within tolerable limits, but persistent. She is noted as working, and able to do her work, but with recurring pain, having good range of motion, stiffness in the back, and shoulder pain on rotation. The doctor recommended physiotherapy and self-directed exercises to strengthen her muscles.

27On June 15, 2018, the Applicant underwent a psychological assessment. The psychologist completing the assessment concluded that the Applicant's symptoms were consistent with adjustment disorder and mixed anxiety and depressive mood. The psychologist recommended twelve sessions of psychotherapy.

28By June 28, 2018, based on her family doctor's notes, it appears that the pain in her back had reappeared.

29On July 26, 2018, the Applicant complained to her doctor, for the first time, about right knee pain that began after the accident.

30In March 2019, the Applicant was referred to a chronic pain clinic for management of her reported ongoing pain symptoms. The chronic pain specialist examining the Applicant concluded that she likely had a neuropathic component to her pain. He did not, however, opine as to whether the Applicant suffered from chronic pain or chronic pain syndrome.

31On October 31, 2019, the Applicant attended a mental health consultation at Osler. The consultation found that objective the Applicant appeared moderately depressed and anxious. She was diagnosed with major depressive disorder and posttraumatic stress disorder. She was recommended counselling and therapy.

32The Respondent submits, and there is no contradiction that, the MIG limits have been exhausted. Were the Tribunal, therefore, to find that the Applicant has suffered predominantly minor injuries, she would not be entitled to any further medical benefits.

ANALYSIS

a. Should the Applicant's documents be excluded?

33The Respondent argues, in its written submissions, that all of the Applicant's documents should be excluded because the Applicant failed to comply with document production timelines. The Tribunal ordered the parties to exchange "…any/all productions by September 1, 2021…" The Respondent claims that the Applicant provided her productions for the first time when she served her written submissions, on October 18, 2021. Assuming this to be true, I would still decline to exclude the Applicant's documents for the following reasons.

34First, many of the documents the Applicant relies upon are documents that the Respondent previously had in its possession. Very little would come as a surprise.

35Second, even for the documents that the Respondent had not seen before, the cure for any prejudice it may experience is time. The Respondent, for unrelated reasons, after it received the Applicant's materials sought and was granted an extension of time for its responding materials. Any prejudice was therefore mitigated. This is further evidenced by the fact that the Respondent was able to grapple with and address the documents in its own responding submissions, notwithstanding the Respondent caveating its reference to the Applicant's materials as "only for convenience and to reduce duplication and costs".

36Finally, the Respondent has not pointed the Tribunal to any authority for the proposition that the appropriate remedy for a failure to deliver materials in accordance with a Tribunal order is that the materials should be excluded from the Tribunal's consideration.

a. Is the Applicant's appeal statute-barred?

37The Respondent argues that the Applicant is out of time to commence her appeal from the denial of one of the two proposed treatment plans at issue in this proceeding.

38Using the dates submitted, and the dates of the denial letters, the timeline for both proposed treatment plan is as follows:

	Submitted	Denied	Date of Appeal
Chiropractic services - $2,871.03	2018-11-08	2018-11-26	2021-02-09
Occup therapy assessment - $1,796.79	2019-06-20	2019-07-03	2021-02-09

39Without question, the second proposed treatment plan was appealed within the two-year limitation period.

40The earlier treatment plan would be out of time but for the suspension of limitation periods during the pandemic. However, Ontario Regulation 73/20 suspended all limitation periods in the province of Ontario for six months as a result of the COVID-19 pandemic. In essence, the Applicant had two years plus six months within which to commence her appeal. She did so.

41I therefore find that, with respect to these two proposed treatment plans, the Applicant's appeal is not statute-barred.

a. Are the Applicant’s injuries predominantly minor as defined by the MIG?

42For the reasons below, I find that the Applicant has not met her onus to demonstrate, on a balance of probabilities, that she has suffered injuries that would remove her from the MIG.

The Respondent's Denial Letters

43The Applicant makes several arguments about the validity of the Respondent's denial letters.

44First, the Applicant argues that because the Respondent did not respond to the proposed treatment plans in time, by virtue of section 38(11) of the Schedule the Respondent is prohibited from taking the position that the Applicant falls within the MIG.

45 Section 38(8) of the Schedule states:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

46Section 38(11) goes on to state:

If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

47The Applicant argues that, with respect to the proposed occupational therapy assessment, the Applicant: (a) submitted the treatment plan on June 20, 2019; (b) was denied by the Respondent on July 3, 2019; and (c) did not receive the denial letter or the reasons contained within them until October 21, 2019.

48Similarly, with respect to the proposed chiropractic services treatment plan, the Applicant argues that she: (a) submitted the proposed treatment plan on November 15, 2018; and (b) was denied by the Respondent and provided the denial letter on April 8, 2019. Both of these instance, the Applicant argues, contravene the Schedule, and the Respondent should therefore be prohibited from arguing that the Applicant falls within the MIG.

49I am satisfied that the Respondent issued its denial letters for the November 15, 2018 OCF-18 and the June 10, 2019 OCF-18 on November 26, 2018 and July 3, 2019, respectively. This is evidenced by the letters, dated appropriately, follow-up letters indicating that the earlier letters had been sent, and the absence of correspondence by the Applicant insisting that she or her counsel had not received the initial denial letters. The initial denial letters are within the timeline required by the Schedule, and therefore the denials are not subject to section 38(11) of the Schedule.

50Second, the Applicant argues that the contents of the denial letters do not give adequate medical reasons as to why the Applicant's treatment plans are denied. I disagree. The language in the letters is clear that the Respondent takes the position, based on its previous assessments of the Applicant, that the Applicant's injuries fall within the MIG. This explanation is, on the facts of this case, sufficient for the Applicant to understand the basis for the denial and arrive at a position as to what to do next.

51The Applicant argues, essentially, that each denial should be on fresh information and assessments. While that may be desirable, it is also impractical, particularly given the timeframes in which an insurer is required to respond to a submitted treatment plan.

52Lastly, the Applicant argues that the denial letters reference an enclosure about the Applicant's right to dispute the denial, but that such enclosures were never included with the denial letters. The Applicant argues that this failure contravenes section 54 of the Schedule, which states:

If an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with written notice advising the person of his or her right to dispute the refusal or reduction.

53This Tribunal has previously held that the onus is on the Respondent to establish that the proper denial was provided. An applicant must be provided with his or her rights to dispute in straightforward and clear language, so as to be understood by someone who is not legally trained.¹

54It is not clear whether the July 3, 2019 denial letter included an attachment about the Applicant's right to dispute the denial. The letter, as included in the Respondent's materials, does not show that it was. However, the letter does include a paragraph explaining the Applicant's right to dispute, and it was copied to the Applicant's counsel. There is also no indication that the Applicant, or her counsel, ever requested the attachment, presumably because the Applicant's counsel understood the appeal process. Finally, the follow up to the denial letter, on October 21, 2019, as included in the Applicant's materials, does include the attachment about the Applicant's right to dispute the denial, as do other denial letters that the Applicant received as part of her benefits claim process arising from this accident. Therefore, in effect, in this case I am satisfied that the Applicant has been provided notice about her right to know how to appeal a denial.

The Applicant's Injuries

55The Applicant argues that, in any event, her injuries are such that they do not fall within the definition of minor injury. The Respondent argues the opposite – that the Applicant has not met her onus to demonstrate that her injuries are anything other than minor.

56The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule defines a minor injury as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation. A minor injury also includes any clinically associated sequelae to the injuries noted above. An applicant who falls within the MIG is eligible for up to $3,500 in medical and rehabilitation benefits.

57An applicant may be removed from the MIG if, on a balance of probabilities, they can demonstrate that the injuries they suffered are not within the minor injury definition. The Applicant bears the burden of proving that the MIG does not apply.² The Tribunal commonly hears disputes about whether an applicant’s psychological conditions or chronic pain suffered are sufficient to remove an applicant from the MIG.

58In this instance, the Applicant argues that she suffers from psychological injuries, chronic pain, and radiculopathy, and that any of which alone would remove her from the MIG. I consider each of these injuries below.

Psychological Injuries

59There is some basis for the argument that a formal diagnosis is not required in order for psychological injuries to remove a person from the MIG,³ but there must be at least sufficient evidence, on a balance of probabilities, to show psychological injury suffered in the accident that would take an applicant out of the MIG.⁴

60For this Tribunal to find that an applicant is removed from the MIG by virtue of psychological injury, the applicant must show an actual psychological impairment.⁵ Some case law has required that the impairment be severe or extreme.⁶

61In support of her argument that the Applicant has suffered psychological injuries, the Applicant points to three main pieces of evidence: (a) the continued complaints of what appear to be psychological symptoms to her family doctor; (b) Dr. Belyakova's psychological assessment conducted June 15, 2018; and (c) Dr. Ghalib's mental health assessment at Osler on October 31, 2019. These pieces of evidence, as noted above, do indicate symptoms or diagnoses of psychological disorders, with no indication of any such impairment before the accident.

62The Respondent argues that I should prefer the assessments by Dr. Syed, completed July 31, 2018, April 5, 2019, and April 25, 2019 and Dr. Silverman, completed April 9, 2017, and April 22, 2017.

63I prefer the evidence of Dr. Syed and Dr. Silverman, for the following reasons.

64First, most significantly, the reports of Dr. Belyakova and Dr. Ghalib do not address in any way the subsequent accident that the Applicant was involved in, in September 2017. While all reports suggest that this accident was minor, it is impossible for this Tribunal to understand how the reports of these two doctors could have been affected by knowledge or analysis with respect to this second accident. If the Applicant did not disclose the accident to these two doctors, then it raises a question as to whether the Applicant has been selective in her disclosure. On the other hand, Dr. Syed's report, which is comprehensive, deals with this second accident and addresses any other potential confounding factors with respect to the Applicant's psychological condition. Dr. Silverman's assessments took place before the second accident.

65Second, Dr. Syed's initial assessment reviewed paper records, conducted an interview with the Applicant, and found some psychological distress, but ruled out adjustment disorder, anxiety, and depressed mood on the basis of inconsistent scores on assessment scales. In particular, Dr. Syed noted a suspicion of possible symptom exaggeration and or malingering. Dr. Syed maintained her position in her first addendum, after having reviewed additional documents made available to her. I note that the additional documents appear to have little to nothing to do with the Applicant's psychological condition. In her second addendum, Dr. Syed took a second look at Dr. Belyakova's psychological assessment. She concluded that Dr. Belyakova used tests that rely heavily upon subjective reporting with minimal objectivity. Dr. Syed also expressed concerns about exaggeration and self-reported distortion of the Applicant's true clinical picture. In conclusion, Dr. Syed reiterated her finding that there was "no objective psychometric evidence to substantiate [the Applicant's] subjective self-report of psychological impairment related to the subject motor vehicle accident."

66Dr. Syed appears to have used scales and assessment techniques additional to those used by Dr. Belyakova. Dr. Syed also addressed at length testing results meant to explore symptomatic exaggeration or inconsistency, whereas Dr. Belyakova relied solely on her impressions to conclude that the Applicant's self-reporting was accurate.

67Dr. Ghalib's assessment report does not discuss what scales or tests, if any, were used in assessing the Applicant. Dr. Ghalib's report appears to be entirely based on the Applicant's self-report of mood and pain. This self-report, particularly given the fact that it is nearly three years post-accident, cannot be afforded significant weight.

68Third, Dr. Silverman's reports are the earliest psychological assessments done of the Applicant. Dr. Silverman found that while the Applicant was experiencing a "normative non-pathological response to her post-accident residual somatic issues and situational stressors" her psychological condition did not rise to the level of a diagnosis of any specific DSM-5 condition. And, while diagnosis of a condition is not necessarily required to remove an applicant from the MIG for psychological issues, there should be some consistent indication of an impairment on the applicant's ability to carry out daily tasks. In this case, the Applicant's self-reported effects of her psychological condition on her daily life are inconsistent (e.g. differently reported sleep patterns, or significant impacts on some aspects but a normal return to work), and not corroborated by anything other than self-report.

69The Applicant has not satisfied her onus to demonstrate that she is suffering from a psychological condition resulting from the accident that is not minor. She has not, therefore, proved that she should be removed from the MIG.

Chronic Pain

70Chronic pain syndrome can remove an applicant from the MIG. This Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take an applicant out of the MIG.⁷ An explicit diagnosis may not be necessary in the face of adequate evidence with respect to how chronic pain manifests and affects an applicant’s day-to-day life.

71In TS v. Aviva General Insurance Canada, the applicant provided "evidence of a specific diagnosis, chronic pain syndrome, which the Tribunal accepted."⁸

72In this case, there is no diagnosis of chronic pain syndrome. It is acknowledged that the Applicant is experiencing persistent pain, but even according to her own self-reports to her doctors, by spring 2018, the pain had disappeared, before reappearing again later. Dr. Bajzath's chronic pain assessment of March 28, 2019 does not specifically diagnose chronic pain syndrome.

73Further, even taking Dr. Bajzath's report at its highest, and acknowledging that the Applicant may be experiencing some residual pain, I cannot conclude that (a) this pain has nothing to do with the second accident the Applicant was in, particularly because that accident is not reflected in her discussions with assessors; and (b) the pain has significantly impaired the Applicant's ability in some way. The Applicant went back to work shortly after the accident, and carries on her daily activities. Yes, people have to work, and often work through pain, but the totality of the evidence in this case does not rise to the level of chronic pain that would warrant the Applicant's removal from the MIG.

Radiculopathy

74I also find that the Applicant has not satisfied her onus to demonstrate that she is suffering from radiculopathy.

75Taking the Applicant's OCF-3 at its highest, the only injuries described in the OCF-3 that may fall outside of the MIG are lumbar radiculopathy and psychological disorders, including sleep disorders, anxiety, and other disorders. The remainder of the injuries noted fall squarely within the definition of minor injury.

76Aside from an assessment in the course of completing the OCF-3, there is no further evidence of radiculopathy in any of the medical records, except for the occasional repeating of the list of injuries in the OCF-3. Specifically, there is no imaging, report, or specific assessment to explore whether the Applicant has radiculopathy. To the contrary, the section 44 exam by neurologist Dr. Verity states that the Applicant shows "signs consistent with a mild ulnar neuropathy but with no evidence of radiculopathy, myelopathy."

b. Is the Applicant entitled to the proposed treatment plans?

77Given my findings with respect to the issues above, and the uncontroverted fact that the Applicant has exhausted her medical benefits under the MIG, I find it unnecessary to consider whether her proposed treatment plans are reasonable and necessary.

c. Is the Applicant entitled to interest on any overdue payments?

78Given my findings above, I find that the Applicant is not entitled to interest on any overdue payments.

d. Is the Respondent entitled to costs because the Applicant has acted unreasonably, frivolously, or in bad faith in a proceeding?

79The Respondent has not significantly pursued this issue in its written submissions. At most, its submissions can be characterized as a tepid objection to the Applicant (a) filing materials late; and (b) litigating issues it had previously withdrawn.

80The Respondent has not put forward any authority for its assertion that the Applicant has unreasonably, frivolously, or in bad faith.

81I found for the Applicant in respect of the late filed materials, and in respect of any potential limitation argument on the issues herein. Success on an issue is an indicator that the successful party was not acting unreasonably, frivolously, or in bad faith.

82Further, with respect to litigating previously withdrawn issues, it appears that most, if not all, of those re-raised issues were again withdrawn voluntarily by the Applicant at the case conference. While I am not privy to the discussions of the case conference, nor is there any evidence in that regard, it does not appear that, from that point on, the Respondent experienced any prejudice in getting to this written hearing.

83The Respondent has not satisfied me that the Applicant has acted unreasonably, frivolously, or in bad faith such that the Respondent should be entitled to costs.

ORDER

84The Applicant has not discharged her onus to demonstrate, on a balance of probabilities that her injuries are not predominantly minor. As a result, the application is dismissed.

Released: January 19, 2023