21-006679/AABS

Licence Appeal Tribunal File Number: 21-006679/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:

Amritraj Mathew

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Stephanie Seto, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Amritaj Mathew, the applicant, was involved in an automobile accident on July 22, 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 the respondent, Travelers Insurance Company of Canada, 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to $3,552.26 for physiotherapy treatment proposed by Health Bound in a treatment plan which was denied on September 3, 2019?

iii. Is the applicant entitled to $1,954.80 for physiotherapy treatment proposed by Health Bound in a treatment plan which was denied on December 13, 2019?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Health Bound in a treatment plan which was denied on January 19, 2021?

v. Is the applicant entitled to $4,239.55 for psychological services proposed by Health Bound in a treatment plan which was denied on February 16, 2021?

vi. Is the applicant entitled to $2,602.38 for a physiatry assessment proposed by Excel Medical in a treatment plan which was denied on April 1, 2021?

vii. Is the applicant entitled to $14,029.19 for goods and services of a medical nature proposed by Dr. Chow in a treatment plan which was denied on August 19, 2021?

viii. Is the applicant entitled to $4,239.55 for goods and services of a medical nature proposed by Dr. McDowell in a treatment plan which was denied on October 15, 2021?

ix. Is the applicant entitled to $42.28 for medical expenses submitted on a claim form which was denied on March 8, 2022?

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

RESULT

3The applicant has not proven they should be excluded from the MIG limits.

4There is no entitlement to any disputed treatment plans, nor is any interest awarded.

PROCEDURAL ISSUES

All denials from the respondent were complaint with the Schedule

5The applicant notes two treatment plan denials that they believe were non-compliant with s. 38 of the Schedule and submits that entitlement to treatment be awarded due to the deficiencies.

6The first treatment plan was denied in a letter dated August 19, 2021. The applicant alleges this treatment plan was denied without a medical reason or justification, however, the letter states:

As per the Section 44 Psychological Insurer’s Examination report dated April 5, 2021, completed by Dr. Rakesh Ratti of Bay Medical and Health Services it was found that you did not meet the criteria for any mental health diagnosis. Review of your complete accident benefits file does not provide any medical evidence that indicate that you suffer from a chronic pain condition as a result of the accident. Your medical file indicates that you have returned to your activities of daily living, working out and work.

7I find that this paragraph provides medical rationale for denying the treatment plan and cites to a s. 44 report prepared in response to the applicant’s claim. Both the absence of psychological impairments, and the lack of a chronic pain diagnosis present in the records are valid medical and other reasons for denying a treatment plan due to the MIG limits.

8This same language is found in the October 15, 2021 denial letter referring to a psychological treatment plan. For the reasons above, I find that this denial letter is also compliant with the Schedule and constitutes a valid denial.

The applicant has exceeded the page limit ordered by the Tribunal

9In their submissions, the respondent notes that the applicant has exceeded the page limits of 10 pages set by the Tribunal in an order dated March 29, 2022, with the requested relief that all submissions after 10 pages are disregarded.

10In their reply submissions, the applicant addresses these claims with the following arguments:

i. It was inadvertent;

ii. It does not expose the respondent to prejudice;

iii. The appropriate venue for this complaint is a motion, not submissions.

11The fact that this was an inadvertent oversight is not an acceptable excuse. Mr. Carranza is a representative licensed by the Law Society of Ontario and ought to know the importance of adhering to a Tribunal Order.

12The Tribunal sets uniform limits to both sides as a matter of procedural fairness. When the Tribunal makes an order, the expectation is it will be adhered to as written. A party does not need to show they will be prejudiced to compel the other party to follow a rule or an order issued by the Tribunal. The base expectation is compliance.

13Established practice is that issues with a party’s submissions are handled either in the respondent’s submissions or the applicant’s reply submissions. A separate motion is not required to address submissions which are not compliant with previous orders of the Tribunal.

14The respondent’s request is that all pages subsequent to the 10-page limit be disregarded. After reviewing the case and evidence, I find that this is a moot request. The applicant has not proven that removal from the MIG is warranted and as all submissions relating to the MIG are contained in the first 10 pages, there is no need to address arguments contained outside this limit.

15However, had this matter hinged on whether the disputed treatment plans were reasonable and necessary, I would have no hesitation enforcing the Tribunal’s order respecting page limits and disregarding all submissions after the page limit was reached.

ANALYSIS

The applicant has not proven an impairment that warrants removal 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.”

17An 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.

18The applicant’s submissions are centered around exclusion from the MIG on the basis that they suffered psychological injuries and chronic pain from the accident.

19The applicant was involved in an accident on July 22, 2019. The applicant saw their family physician, Dr. K. Maag, the next day. Dr. Maag diagnosed the applicant with whiplash, and prescribed physiotherapy and massage therapy along with Naproxen. There was a follow-up visit on August 8, 2019, where the applicant is still complaining of accident related soreness, but has not begun treatment.

20This is the last time the accident was referenced in Dr. Maag’s clinical notes. There is no record provided of another visit with Dr. Maag until October 3, 2019, when the applicant complained of left elbow pain that he was experiencing for the past month. It is noted that he recently started a boxing workout. This note holds significant weight with respect to chronic injuries suffered from the accident. Boxing is an extremely physically strenuous activity, so I find someone purportedly recovering from accident-related injuries would be gradually re-introduced to physical activity. The fact that the applicant started boxing supports the position that he has recovered from his accident-related physical injuries.

21In any event, the fact that the applicant self reported that his boxing workout resulted in pain undermines his claim that his pain is related to the accident. In order to received accident benefits, the applicant must demonstrate that his impairments were caused but for the accident

The applicant has not proven a psychological impairment that would warrant removal from the MIG limits

22There is no record of any visits between October 2, 2019 and October 7, 2020, when the applicant presented with psychological symptoms. I note that Dr. Maag did not reference the accident in relation to the applicant’s psychological issues, raising causation issues. On October 13, 2020, she notes in a follow-up that the psychological distress is related to the death of his brother-in-law, social isolation, a bad breakup, and financial worries from not being able to work due to COVID restrictions.

23The applicant was referred to a counselling session with Robin Sedgwick on October 21, 2020, and a report from this session is included in Dr. Maag’s clinical record. In this report, while the accident is mentioned, the main issues are social isolation, isolation from his family in India due to travel restrictions, a shame in not being more stable in life and not being able to financially support his relatives in India.

24The applicant did not complete any of the follow-up questionnaires sent to him and missed a follow-up counselling session on November 9, 2020, as he “forgot.”

25The applicant reports in a visit with Dr. Maag on November 17, 2020, that he is feeling better, is worrying less and sleeping well. Again, there is no connection to the accident.

26A section 25 psychological report was provided by Dr. S. McDowall, clinical psychologist, who determined that the applicant suffers from adjustment disorder with mixed anxiety and depressed mood as a result of the accident. I give limited weight to this report as the interview and assessments were conducted by Vanessa Schembri who was, “practicing under the supervision of Dr. Sharleen McDowall”. The report does not indicate that Dr. McDowall was present at all during the assessment and therefore I do not give weight to her report. Further, the findings of Dr. McDowall are inconsistent with and not corroborated by the clinical notes and records that have been provided as evidence.

27For the reasons identified above, the applicant has failed to prove on the balance of probabilities that they suffer from a psychological impairment as a result of the accident that would warrant removal from the MIG.

The applicant does not suffer from chronic pain as a result of the accident

28There is considerable evidence in the clinical notes and records and assessments provided that the applicant lived a very active lifestyle. There are documented references to using strenuous exercise as a strategy to help focus his mental health.

29The respondent submits that the applicant has returned to work, and his normal lifestyle following the accident. It is noted that there was a documented return to strenuous physical activity in the form of boxing and that there was no evidence of excessive dependence on treatment providers, family or the use of prescription drugs beyond the recommended duration. I agree with the respondent.

30There was minimal reference in any of the clinical notes and records, outside of those prepared for the purposes of litigation, to any accident-related injuries or chronic pain conditions persisting. The applicant returned to work two days post accident. The only reference to chronic pain is in a section 25 report of Dr. T. Chen, physiatrist, who notes a chronic pain disorder as one of the clinical diagnoses. I give little weight to this diagnosis, as it is a small part of a much larger report in which most of the observations are within normal limits or where the applicant’s range of motion is mildly reduced. There is no clinical history of lasting or chronic pain with the applicant’s family physician, in fact, there was no report of pain to Dr. Maag outside of the note from one month post accident.

31For these reasons I find that the applicant has not proven they suffer from chronic pain which would warrant removal from the MIG.

The applicant is not entitled to any of the treatment and assessment plans in dispute or interest

32As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

33As there are no benefits owing, no interest is payable.

ORDER

34I find:

i. The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

ii. No interest is payable; and

iii. The application is dismissed