Licence Appeal Tribunal File Number: 21-005531/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:
Anthony Loney
Applicant
and
BelairDirect
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Alexei Antonov, Counsel Naman Nanda, Student-At-Law
For the Respondent: Anthea Chan, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Anthony Loney (the “applicant”) was involved in a motor vehicle accident on April 11, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). BelairDirect (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and also denied five treatment plans/OCF-18s. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent noted in submissions that the MIG limit of $3,500.00 had been exhausted. The MIG limit was not referenced by the applicant in either his initial or reply submissions. As a result, I accept the respondent’s notation that the MIG has been exhausted. Entitlement to any of the treatment plans in dispute here is dependent on a finding that the applicant should be removed from the MIG.
ISSUES IN DISPUTE
3The following issues are in dispute:
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 of the MIG?
Is the applicant entitled to $1,316.56 for physiotherapy in a treatment plan/OCF-18 recommended by Toronto Health Care and denied on July 10, 2019?
Is the applicant entitled to $120.00 ($1,254.25 less $1,134.25 approved) for physiotherapy in a treatment plan/OCF-18 recommended by Toronto Health Care and denied on July 30, 2019?
Is the applicant entitled to $1,635.95 for physiotherapy in a treatment plan/OCF-18 recommended by Toronto Health Care and denied on September 3, 2019?
Is the applicant entitled to $2,000.00 for a chronic pain assessment in a treatment plan/OCF-18 recommended by Toronto Health Care and denied on November 26, 2019?
Is the applicant entitled to $2,438.30 for psychological counselling in a treatment plan/OCF-18 recommended by Toronto Health Care and denied on July 14, 2020?
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?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
Is the applicant liable to pay $500.00 in costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice & Procedure (the “Rules”)?
RESULT
4I find that:
i. The applicant has failed to demonstrate that his accident-related injuries warrant removal from the MIG. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plans in dispute, nor interest.
iii. The respondent is not liable to pay an award.
iv. The applicant is not liable to pay costs.
ANALYSIS
The Minor Injury Guideline (“MIG”)
5Section 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 minor injuries. 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.”
6An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
7The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.
8In this instance, the applicant submits that he sustained chronic pain with functional impairment and a psychological impairment as a result of the accident, each of which warrant removal from the MIG.
9The respondent counters that the applicant suffered physical injuries that fall within the MIG and that he has provided no evidence demonstrating that he suffered a psychological impairment as a result of the accident. Correspondingly, the respondent takes the position that as no benefits are owed, that neither interest nor an award is applicable. Lastly, the respondent requests $500.00 in costs under Rule 19 of the Rules, arguing that the applicant acted unreasonably in serving hearing materials late and making errors in submissions.
The applicant has not demonstrated that he suffers from chronic pain
10I find that the applicant has failed to substantiate claims to sustaining chronic pain with a functional impairment as a result of the accident. His physical injuries are predominantly minor as defined in the Schedule.
11Most importantly, the applicant has never been diagnosed with chronic pain, nor has he been diagnosed with any sort of functional impairment. A Disability Certificate/OCF-3 completed by Dr. Domenic Minnella, chiropractor, noted sprains and strains of the spine and knee as a result of the accident, along with ongoing dizziness. None of these physical injury diagnoses fall outside of the definition of predominantly minor injuries as listed in the Schedule.
12Clinical notes and records (“CNRs”) of Dr. Akber Shah, the applicant’s family physician, indicate that the applicant attended appointments to discuss physical injuries in relation to the accident on five occasions in 2019. However, Dr. Shah treated the applicant for predominantly soft-tissue injuries, and did not seem to address the applicant’s complaints of occasional dizziness at all. The physician did not prescribe any medication to the applicant, did not refer the applicant to another physician to further assess his complaints (such as a neurologist to determine the cause of the reported dizziness), and did not order the applicant to undergo any diagnostic imaging or testing regarding the accident.
13Moreover, these CNRs indicate that the applicant stopped referring to accident-related pain as of December 11, 2019. Treatment for unrelated health concerns followed. An MRI conducted on September 11, 2021 revealed an undisplaced tear of the posterior horn lateral meniscus as well as degenerative changes. However, these conditions were not connected to the subject accident by any objective medical evidence, nor did the applicant claim that they precluded his recovery if held within the MIG. The CNRs of Dr. Shah support this conclusion, as they contain numerous notations about the applicant’s knee problems dating back to at least 2012.1
14I assign little weight to the psychological pre-screening report and psychological report completed by Dr. Jacqueline Brunshaw, psychologist, in relation to the applicant’s physical injuries. These reports, dated August 20, 2019 and February 29, 2020, respectively, recount the applicant’s complaints of ongoing pain in his shoulders, left arm, lower back, and left knee since the accident. But no objective medical evidence supports these self-reported symptoms, and Dr. Brunshaw’s area of expertise is psychology. As a result, these reports are of minimal value in assessing the applicant’s claim of suffering chronic pain.
15In all, there are no significant indications in the medical evidence submitted by the applicant that he sustained anything other than predominantly soft-tissue physical injuries in the accident. Complaints of ongoing pain are not enough to establish the existence of chronic pain, let alone chronic pain with a functional impairment, which is necessary to support removal from the MIG.
16Further, I prefer the medical evidence of the respondent.
17Sarah Lee, occupational therapist, noted in her s. 44 insurer’s examination (“IE”) in-home assessment report dated July 15, 2019 (regarding a non-earner benefit (“NEB”) matter not in dispute here) claim that the applicant did not exhibit impairment of a magnitude that met the test of suffering a complete inability to carry on a normal life. Granted, this assessment dealt with NEB, not the MIG. But Ms. Lee’s conclusions are also relevant to the MIG determination, as she found no evidence of significant impairment. The applicant also informed Ms. Lee that he was working out at his gym at the same level as he was before the accident, further indicating that he was not functionally impaired. And lastly, the applicant told Ms. Lee that he had surgery on his left knee “years earlier” due to a torn meniscus, further supporting that knee issues diagnosed in the 2021 MRI predated the accident.2
18An additional s. 44 IE paper review report and subsequent assessment report completed by Dr. Paul Tepperman, physician, came to the same fundamental conclusions as Ms. Lee. In the paper review dated September 10, 2019, Dr. Tepperman denied two physiotherapy treatment plans and found that the applicant sustained myofascial strain of his cervical and lumbar paraspinal musculature in the accident that had “basically resolved.” The physician confirmed these opinions in a report dated November 3, 2020 that was the result of an October 20, 2020 in-person assessment. Dr. Tepperman denied three other treatment plans in this report due to the same finding that the applicant suffered myofascial strains that had since resolved. Given the tacit support lent to Dr. Tepperman by Ms. Lee as well as a preponderance of the medical evidence before me, I accept Dr. Tepperman’s opinion that the applicant sustained soft-tissue injuries defined as minor in the Schedule.
19For the above reasons, I find that the applicant suffered soft-tissue injuries in the accident that fall within the MIG.
The applicant does not suffer from an accident-related psychological impairment
20I find that the applicant has failed to provide sufficient evidence that he suffered a psychological impairment warranting removal from the MIG.
21Most of the applicant’s position here relies on the aforementioned pre-screening and assessment reports completed by Dr. Brunshaw. I am not persuaded by either report due to the psychologist’s heavy reliance on the self-reporting of the applicant and the absence of objective medical evidentiary support.
22The pre-screening report is entirely based on a clinical interview with the applicant. Dr. Brunshaw’s conclusion that a psychological assessment is “imperative” to “gain a better understanding” of the applicant’s “background, history and past and current medical conditions and to fully understand the impact of his motor vehicle accident” is wholly dependent on self-reporting. Dr. Brunshaw also noted that the applicant reported feeling “sad and depressed since the accident,” but that he was not comfortable sharing the reasons behind these changes in his mood. As a result, I find it impossible to determine if the accident was a factor behind this change in mood. In all, I find the pre-screening report to be largely speculative and lacking in detail about the accident. Accordingly, I assign it nominal weight.
23I take the same view of the psychological assessment. While Dr. Brunshaw diagnosed the applicant with the features of an adjustment disorder (unspecified) as a result of the accident, neither the clinical interview nor the results of psychometric testing support such a conclusion.
24First, there are other factors in the applicant’s background that seem more likely than the accident to account for the symptoms of depression, anxiety, and insomnia as noted in this psychological assessment. Most remarkably, the applicant was diagnosed with a serious illness unrelated to the accident in 2019, and the CNRs of Dr. Shah show that he underwent surgery for this condition in August 2021. In my view, Dr. Brunshaw did not fully account in her psychological report for the stress that this illness placed on the applicant.
25Second, psychometric testing indicated that the applicant was in the minimal range for depression and the mild range for anxiety. Dr. Brunshaw concluded that the applicant’s test scores indicated that he was experiencing “low levels of emotional stress.” To me, these scores do not support the psychologist’s diagnosis that the applicant suffered from the features of an adjustment disorder.
26Additionally, the applicant did not discuss any psychological concerns related to the accident with his family physician, Dr. Shah. Aside from the dizziness issue noted above, the applicant did not raise any psychological or emotional problems that were noted in the doctor’s CNRs.
27I also prefer the opinions of Dr. Rod Day, psychologist, who performed an in-person IE psychological assessment of the applicant on November 11, 2020 that resulted in a report dated November 24, 2020. Dr. Day noted in his report that the applicant stated “clearly and unambiguously” that he did not feel he needed any psychological treatment. While such self-assessments are not always entirely conclusive, the applicant seems to have been particularly definitive here, leaving me no reason to doubt him. As a result of both a clinical interview and psychometric testing, Dr. Day concluded that there was no evidence of any psychological condition related to the accident and that a treatment plan recommending a psychological assessment was not reasonable and necessary.
28In accordance with the above reasoning, I find that the applicant did not suffer from a psychological impairment as a result of the accident that would warrant his removal from the MIG.
The Treatment Plans
29Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute, nor interest.
Award
30Pursuant to s. 10 of O. Reg. 664, the respondent may be liable to pay an award if it unreasonably withheld or delayed payment of a benefit.
31As I have concluded that the applicant remains within the MIG and is not entitled to the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed.
32Accordingly, the respondent is not liable to pay an award.
Costs
33I find that the applicant is not liable to pay costs to the respondent.
34According to the provisions of s. 19 of the Rules, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.
35Here, the respondent requests for $500.00 in costs in its written submissions. It argues that the applicant acted unreasonably in serving his submissions for this hearing after 5:00 PM on December 1, 2022. As these submissions arrived at 5:15 PM on that day, the respondent holds that they cannot be deemed received until the following day in accordance with s. 6.2 of the Rules. In addition, the respondent claims that the applicant mis-referenced tabs in these submissions.
36In reply submissions, the applicant acknowledges that its initial submissions were 15 minutes late due to what he calls an administrative oversight, but that no prejudice was caused to the respondent. He also denies that submission tabs were improperly indexed and referenced.
37Due to these reasons, the applicant requests that discretion be exercised in accordance with Rule 3.1, which allows for a liberal interpretation of Tribunal rules such as Rule 6.5 that deems documents sent after 5:00 PM to have been received on the next day that is not a holiday. In short, the applicant requests that his submissions be regarded as just 15 minutes late, not a full day, and that costs be denied as this was a minimal delay that did no prejudice to the respondent.
38I agree with the applicant, and rely on Rule 3.1 to accept that his submissions were filed just 15 minutes late. Further, the respondent has not directed me to any evidence of prejudice that was caused by either this slight delay (whether it was 15 minutes or even a full day) or by any issues with the applicant’s submission tabs. The applicant divided these tabs into 25 consecutively numbered PDF documents in two zip files named Tab A and Tab B, but cited these documents solely by their numbers in written submissions. I did not find this confusing. Document numbers were not duplicated, there were essentially only 22 documents in total (four of the aforementioned 25 consisted of Dr. Shah’s CNRs divided into short PDFs), and the applicant’s footnotes were easy to follow.
39As a result, I find that the respondent has failed to support its claim that the applicant acted in an unreasonable manner in filing its submissions for this hearing. Therefore, the applicant is not liable to pay costs.
ORDER
40I find that:
i. The applicant has failed to demonstrate that he suffers from a physical injury or a psychological impairment that is not defined as minor in the Schedule. He remains in the MIG.
ii. As the applicant remains within the MIG, and as the MIG limit has been exhausted, he is not entitled to the treatment plans in dispute, nor interest.
iii. The respondent is not liable to pay an award.
iv. The applicant is not liable to pay costs.
Released: September 5, 2023
Brett Todd
Vice-Chair