Citation: Sharma v. Intact Insurance Company, 2023 ONLAT 21-007825/AABS

Licence Appeal Tribunal File Number: 21-007825/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:

Chander Sharma

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Nikolai Singh, Paralegal

For the Respondent: Brittany Rizzo, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Chander Sharma, the applicant, was involved in an automobile accident on August 2, 2018, 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, Intact Insurance Company, 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 the services proposed by North Toronto Rehabilitation and Physiotherapy, as follows:

i. $1,328.10 for chiropractic services, in a treatment plan (“OCF-18”) submitted on July 19, 2019;

ii. $1,102.48 for chiropractic services, in an OCF-18 submitted on August 20, 2019? and

iii. $989.67 for chiropractic services, in an OCF-18 submitted on November 6, 2019?

iii. Is the applicant entitled to the assessments and services proposed by Medex Assessments Inc., as follows:

i. $2,632.90 for a physiatry assessment, in an OCF-18 submitted on June 14, 2021?

ii. $2,813.50 for physiotherapy services, in an OCF-18 submitted on June 16, 2021? and

iii. $2,486.00 for a psychological assessment, in an OCF-18 submitted on June 2, 2021?

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

v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute or interest; and

iii. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

4The respondent submits that the applicant has failed to abide by the submission page limits set out in the Case Conference Report and Order (“CCRO”). The CCRO indicates that the applicant’s and respondent’s written submissions will be limited to 10-pages in length, but the applicant’s submissions exceeded this amount.

5The respondent submits that it would be prejudicial if it was required to adhere to the 10-page limit while the applicant exceeded it. It relies on Rule 3.1 of the Common Rules of Practice and Procedure and argues that in order to facilitate a fair and open process and to allow for effective participation by all parties, it should be permitted the same page limit for submissions. The respondent has similarly provided submissions which exceed the stipulated page limit.

6While I am prepared to consider the full length of the parties’ submissions in this instance, I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 10-page limits laid out in the CCRO. However, in this case, I am prepared to admit these non-compliant submissions, and to assign them whatever weight I deem appropriate.

7However, this should not be viewed as tacit acceptance of a blatant breach of the Tribunal’s previous Order. Clearly, the parties have made a tactical decision to breach the CCRO. Instead of risking potential exclusion, the appropriate course of action for both parties would have been to file a timely Notice of Motion and comply with Rule 15 if they seek to vary the written submission page limits.

ANALYSIS

Minor Injury Guideline

8Section 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.”

9An 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.

10The applicant submits that he should be removed from the MIG due to his accident-related physical impairments, psychological impairments and pre-existing injuries.

The applicant has not established physical impairments that warrant removal from the MIG

11The applicant submits that he has sustained non-minor physical impairments. Specifically, he argues that an August 18, 2018 ultrasound revealed a small joint side partial thickness tear in the supraspinatus tendon. As such, the applicant submits that this partial tear is sufficient evidence of a non-minor physical impairment.

12I find that the applicant has not established that he has sustained non-minor physical injuries.

13Although the applicant argues that his partial thickness tear in the supraspinatus tendon is a non-minor injury, a partial thickness tear has consistently been found by the Tribunal to be a minor injury and within the MIG. The applicant has not led any evidence that this has developed into a full tear. He has further led no other evidence to establish that he has sustained any additional physical impairments, outside of soft tissue sprains and strains. Similarly, the respondent’s s. 44 assessor Dr. Alisa Naiman considered the ultrasound findings, but still found that the applicant had sustained only uncomplicated myofascial injuries, treatable within the MIG. The applicant has not led sufficient evidence to refute these findings.

The applicant has not established accident-related psychological impairments

14The applicant further submits that he should be removed from the MIG, as he has sustained psychological impairments, which fall outside of the definition of a minor injury. He points to the clinical notes and records (“CNRs”) of his family physician Dr. Rohit Nagpal, as evidence of his reporting of psychological symptoms, including anxiety, nervousness and stress, post-accident. The applicant also submits that he reported psychological symptoms to his treating chiropractors, and to the respondent’s s. 44 physiatry assessor.

15I do not find that these limited self-reports are compelling evidence of a psychological impairment warranting removal from the MIG.

16Although the applicant states that he reported ongoing psychological symptoms to his family physician, he has provided very limited examples of such reports. In his submissions, he references Dr. Nagpal’s CNR entry from August 7, 2018, where Dr. Nagpal noted pain symptoms, WAD, driving anxiety and “mood”. However, I agree with the respondent that psycho-social symptoms can be expected as a consequence of an accident, especially in the period immediately afterwards. The CNR entry referenced by the applicant is from only a few days post-accident.

17The applicant does not direct me to any other CNR entry from Dr. Nagpal, until almost four years later on February 2, 2022. However, this entry was simply a reference to a medical code – “307 – Insomnia, tics, stuttering, tension headaches, anorexia nervosa, sleep disorders, enuresis”. In his submissions the applicant argues that this was a psychological diagnosis, however, he does not provide any clarification as to which of these impairments he was purportedly diagnosed with. I do not find that this reference to a medical code listing a wide variety of psychological symptoms is a formal diagnosis of a psychological impairment. Further, the applicant does not direct me to any evidence that he was referred to psychological treatment or prescribed medication for psychological impairments by Dr. Nagpal.

18Similarly, the applicant also points to self-reports of psychological symptoms to his treating chiropractors and to the respondent’s s. 44 physiatry assessor Dr. Yuri Marchuk. However, I agree with the respondent that these isolated self-reports are not sufficient evidence of a non-minor psychological impairment. Further, a psychological diagnosis would be outside of the scope of practice for a chiropractor.

19The applicant makes the additional general argument that there were “multiple consultations with health practitioners commenting on ongoing psychological symptoms”. However, no specific reference is provided in support of this claim, other than a general reference to CNR records. I note that the applicant has provided more than 2600 pages of evidence and approximately 1000 pages of medical records. Many CNR entries from Dr. Nagpal were handwritten and largely illegible. The CCRO stated at para 11 that “(s)ubmissions shall make specific reference to the evidence and law by tab and page number. Evidence not so referenced may not be reviewed.” The Tribunal cannot presume to know which evidence or portion thereof, if any, that a party intends to rely on in advancing his case. All parties were expressly advised of this requirement in the CCRO and the consequences for failing to adhere to it. Therefore, in considering the above, I exercise my discretion to not review any evidence that is not specifically referenced.

20Finally, the respondent’s s. 44 psychological assessor Dr. Douglas Saunders found that upon review of the medical file, conducting a clinical interview and psychometric testing, the applicant did not meet the criteria for any accident-related psychological impairment. I find that the applicant has not provided compelling evidence to refute these findings.

The applicant has not established a pre-existing condition that would prevent maximal recovery under the MIG

21The applicant submits that he was in a prior motor vehicle accident in 2016, and that he suffered from pre-existing health conditions of high blood pressure, hypertension, a hernia for which he underwent surgery in 2016 and right foot pain. However, although the applicant has provided medical evidence that he suffered from medical conditions prior to the subject accident, he has not met the additional requirement under s. 18(2). Namely, the applicant has not provided any medical evidence from a treating medical practitioner that acknowledges that these pre-existing conditions have precluded his ability to achieve maximum medical recovery under the MIG.

22The applicant does not direct me to any CNR reference or opinion from Dr. Nagpal, with respect to aggravation of these prior medical conditions post-accident. In contrast, the respondent’s s. 44 physiatry assessor Dr. Naiman reviewed the applicant’s medical file, conducted a physical examination and opined that there was no compelling evidence that a pre-existing medical condition was exacerbated by the subject accident, or would preclude recovery within MIG limits.

23Moreover, the applicant makes reference in his submissions to a prior motor vehicle accident where he had sustained injuries. Similarly, the applicant makes the assertion that his high blood pressure had increased post-accident due to stress and lack of mobility. However, I have not been directed to any specific evidence in support of these claims. As previously noted, submissions alone are not evidence.

24As such, I find that the applicant has not adduced sufficient evidence to establish that he suffers from pre-existing impairments that preclude recovery within the MIG.

25The parties have confirmed that only a nominal amount remains under the MIG limit of $3,500.00 for medical and rehabilitation benefits. As 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 disputed treatment plans.

Award

26Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.

27In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.

Interest

28Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

29As no benefits are overdue, no interest is payable under s. 51.

ORDER

30For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans;

(iii) The respondent is not liable to pay an award under Regulation 664; and

(iv) The applicant is not entitled to interest.

31The application is dismissed.