Licence Appeal Tribunal File Number: 21-014623/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:
Rasha Keshk
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Francesco Blasi, Paralegal
For the Respondent:
Joshua Edmunds, Counsel
HEARD:
In writing
OVERVIEW
1Rasha Keshk (the “applicant”) was involved in an automobile accident on December 9, 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 Pembridge Insurance Company (the “respondent”) 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?
ii. Is the applicant entitled to a medical benefit of $1,167.00 for physiotherapy services, proposed by Physio Med in a treatment plan (“plan”) submitted November 29, 2021and denied December 7, 2021?
iii. Is the applicant entitled to a medical benefit of $2,460.00 for an orthopedic assessment, proposed by All Health Medical Centre in a plan submitted November 10, 2021, and denied December 7, 2021?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s injuries are predominantly minor. Therefore, the applicant is not entitled to the disputed treatment plans for physiotherapy services and an orthopedic assessment.
4The applicant is not entitled to an award or interest.
PROCEDURAL ISSUE – MOTIOn TO EXCLUDE
5On May 4, 2023, the respondent raised a motion after it received the applicant’s submissions. The respondent submits that the Psychological Report of Dr. Jacqueline Brunshaw, psychologist, dated December 11, 2022, ought to be excluded from evidence.
6The respondent relies on the Case Conference Report and Order dated September 1, 2022, which states the responsive document production deadline was set no later than 45 days before the hearing, or April 4, 2023.
7The respondent submits that on approximately April 19, 2023, the applicant served the respondent with a copy of Dr. Brunshaw’s report with his written submissions.
8The respondent submits that under the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”), the applicant did not comply with the Tribunal’s Rules. Rule 9.4 states that if a party fails to comply with an order concerning disclosure, the party may not rely on this document as evidence without the consent of the Tribunal. As such, the respondent submits that Dr. Brunshaw’s report should be excluded, as it was not served within the timelines set by the Tribunal.
9The respondent submits that admitting the evidence of Dr. Brunshaw would be highly prejudicial, as it was not allowed to review and obtain its own opinions regarding the doctor’s findings.
10The applicant submits that the evidence of Dr. Brunshaw was served to the respondent on January 17, 2023, via email, and attached a copy of the report to her Motion submissions.
11The applicant also submits that based on Rule 3.1, the Rules will be liberally interpreted and applied and may be varied on the Tribunal’s initiative to facilitate a fair process. The applicant submits that excluding her report because the respondent states something was not served when it was would not facilitate a fair process.
12I find that the report of Dr. Brunshaw shall be excluded. I agree with the respondent and find that admitting this document would be prejudicial. I accept that the Tribunal set a production deadline of April 4, 2023, based on the Case Conference Report and Order.
13In terms of when the respondent was served Dr. Brunshaw’s report, I was faced with two competing arguments. The respondent submitted it did not receive the report until after the production deadline, and the applicant submits she served the document on January 17, 2023.
14I am alive to the fact that the respondent is unable to “prove” a negative, meaning it cannot show evidence that it did not receive the report until the applicant made her submission. Therefore, the applicant must show when she served the report and provide evidence of this. In this case, the applicant did not do so. It would have been beneficial for the applicant to provide evidence of when she served the respondent with the report, meaning a copy of the email sent on January 17, 2023. Without this evidence, I am not persuaded that the applicant served the document in compliance with the Tribunal’s Case Conference Report and Order.
15I agree that under Rule 9.4, the applicant is not entitled to rely on the document without the consent of the Tribunal as she did not respect an order concerning disclosure.
16I also agree that permitting the report to be accepted into evidence would be highly prejudicial to the respondent. The respondent is entitled to time to review evidence and decide if it would like to obtain a competing report. In this case, the respondent was not afforded that opportunity.
17I also chose not to exercise my discretion to allow Dr. Brunshaw’s report into evidence based on Rule 3.1. I based this on the prejudice it would cause the respondent. Therefore, the report is excluded.
ANALYSIS
The applicant’s injuries are predominantly minor
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 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.”
19An insured may be removed from the Minor Injury Guideline (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.
20The applicant submits that as a result of the accident, she suffers from psychological impairments and chronic pain, both of which fall outside the MIG. The respondent disagrees.
21The applicant relies on the disability certificate (“OCF-3”) of Nick Diodati, physiotherapist, dated March 1, 2021. The applicant submits that Mr. Diodati noted that the applicant suffered the following injuries as a result of the accident: cervical, thoracic, lumbar and hip sprain and strains, nervousness and driving anxiety. Mr. Diodati also submitted that a psychological screen regarding the applicant's driving anxiety was required.
22The applicant also relies on the virtual, orthopedic assessment of Dr. Darrell Ogilvie-Harris, orthopedic surgeon, dated May 30, 2022. Dr. Olgivie-Harris found that the applicant met the criteria for chronic pain syndrome. The doctor also commented that the applicant's injuries fell outside of the MIG and that the applicant required physical and mental health treatment.
23Dr. Olgvie-Harris found that the applicant met the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”) criteria for chronic pain syndrome, as she:
a) Had secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.
b) Had withdrawn from the social milieu, including work, recreation or other social contracts.
c) Had failed to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family or creational needs, and;
d) Had developed psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviours.
24The applicant also relies on the clinical notes and records (“CNR”s) of her family doctor, Dr. Sherif Gordon, and the Insurer’s Examination (“IE”) of Dr. Oleg Safir, orthopedic surgeon, dated February 16, 2022 to show that she suffers from chronic pain, sleep disturbances, anxiety post-traumatic stress disorder (“PTSD”), all which fall outside the MIG.
25The respondent submits that the applicant’s injuries fall within the MIG. The respondent submits that the applicant has failed to show that based on a balance of probabilities, her injuries fall outside the MIG and has not met her evidentiary onus.
26The respondent relies on the IE of Dr. Safir dated March 3, 2022, which found that the applicant’s injuries were soft tissue in nature and fell within the MIG. The respondent also relies on the CNRs of Dr. Gordon to show that the applicant’s injuries fell within the MIG.
27The respondent argues that Dr. Gordon’s CNRs show that the applicant suffers from degenerative disc disease and bone spurs, unrelated to the accident. The respondent also argues that Dr. Gordon’s CNRs do not diagnose the applicant with PTSD but rather wonders if she could have this condition. The respondent submits that the applicant has not shown that the cause of her psychological injuries, should they exist, were related to the accident.
28The respondent also relies on the CNRs of Dr. Bradley Weening, orthopedic surgeon. The respondent submits that the applicant was seen by Dr. Weening on December 30, 2021, related to a fall while she was ice skating and the doctor confirmed that the applicant suffered a displaced distal radius fracture to her right wrist. The doctor also confirmed that the applicant’s wrist had healed by February 3, 2023.
29The respondent also submits that the applicant does not meet the criteria of a chronic pain diagnosis based on 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT).
30The respondent submits:
a) There’s no evidence that the applicant used prescription drugs beyond recommendation or dependent on drugs.
b) The applicant has not provided evidence of excessive reliance on healthcare providers.
c) The evidence does not support that the applicant suffered from secondary, physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain
d) The applicant has not shown that she has developed a psychosocial issue as a direct result of the accident nor has one been mentioned beyond the applicant’s PTSD during one doctor’s visit.
e) The applicant has not shown that she has withdrawn from the social milieu as a result of the accident.
31I find that the applicant’s injuries fall within the MIG. In terms of the applicant’s injuries as a result of the accident, I did not find the applicant’s OCF-3 persuasive, as it did not speak to the legal test at issue because it did not address the issue of the applicant’s injuries and if they were minor in nature or not.
32In terms of the applicant’s psychological injuries noted in the OCF-3, Mr. Diodati did observe “nervousness when driving” and driving anxiety. However, given that he is a physiotherapist, I find that this type of diagnosis is beyond his scope of practice. Instead, I would have expected to see this reflected in Dr. Gordon’s notes, which it was not. Moreover, the physical injuries listed by Mr. Diodati all fall within the MIG, as they are all sprains and strains. Therefore, I did not find this evidence persuasive that the applicant’s injuries fell outside the MIG.
33In terms of Dr. Gordon’s note regarding PTSD, I agree with the respondent and find that the doctor did not diagnose the applicant, but rather wondered if she possibly suffered from the condition. This position is supported by Dr. Gordon’s decision not to refer the applicant to a psychiatrist or prescribe her treatments or medications, and a lack of follow up CNRs.
34I also did not find Dr. Safir’s IE demonstrated that the applicant suffered a psychological injury as a result of the accident. Instead, I find that the applicant reported psychological symptoms to the doctor, which is not sufficient on its own for removal from the MIG.
35In terms of the applicant’s chronic pain, I agree that the applicant complained many times to Dr. Gordon regarding her post-accident pain as demonstrated by the doctor’s CNRs.
36I also reviewed the assessment of Dr. Ogilvie-Harris and agree that the doctor found that the applicant fulfilled the AMA Guides criteria for chronic pain syndrome. However, upon review of the report itself, I am unsure of how the doctor found that the applicant had developed secondary physical deconditioning without physically assessing the applicant. It appears that the doctor simply accepted the applicant’s subjective reports that she is no longer able to exercise and is regularly tired due to pain. However, her deconditioning was not explored.
37I agree that the applicant has shown that she has withdrawn from her social and recreational milieu. This is based on the applicant’s reports of being unable to exercise, and minimal socialization, which is a more subjective criterion.
38I disagree that the applicant has shown that she has failed to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family or creational needs. The applicant reported to Dr. Ogilvie-Harris that she was still able to work, perform most of her chores and do some socialization, albeit in pain.
39Finally, I also disagree that the applicant has shown that she has developed psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviours. Though the applicant’s self-reports of symptoms do demonstrate subjective issues, as stated above, I would have expected these symptoms to be captured by Dr. Gordon, which was not the case. I also note that Dr. Gordon chose not to explore the applicant’s symptoms by treating the applicant or referring her to a specialist.
40I reviewed Dr. Ogilvie-Harris’ report and noted that the doctor found that the applicant’s functional scores were related to her chronic pain syndrome. The applicant’s scores showed she had a mild, pain-related functional limitation.
41I also agree that Dr. Ogilvie-Harris’ findings contradict those of Dr. Safir in that the applicant was, upon physical observation, able to transfer without issue from a seated, standing, and supine position, could flex and extend her spine and had full active abduction, forward flexion and internal rotation of her shoulders.
42I preferred Dr. Safir’s findings, as they were obtained via physical assessment, and accounted for the applicant’s physical abilities. Though I understand that due to the pandemic, Dr. Ogilvie-Harris needed to conduct his assessment virtually, it is difficult to accept findings that require physical examination without the ability to do so.
43Therefore, I find that the applicant does not suffer from chronic pain and her injuries fall within the MIG.
Interest
44Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since I have found that no benefits are payable to the applicant, interest is not applicable.
Award
45The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since I have found that no benefits are outstanding, the applicant is not entitled to an award.
ORDER
46The applicant’s injuries fall within the Minor Injury Guideline.
47The applicant is not entitled to an award or interest.
Released: September 20, 2023
Stephanie Kepman
Adjudicator