Singh v. Intact Insurance Company, 2023 CanLII 91426

Citation: Singh v. Intact Insurance Company, 2023 ONLAT 21-006216/AABS

Licence Appeal Tribunal File Number: 21-006216/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:

Harmandeep Singh

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Renata Szady, Paralegal

For the Respondent: Michael Courneyea, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Harmandeep Singh, (the “applicant”), was involved in an automobile accident on May 13, 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 Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal- Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE 1- Page limit of the applicant’s submissions

2The respondent submits that the applicant exceeded the page limit as mandated in the previous Case Conference Report and Order (“previous Order”), released on August 9, 2022. The respondent submits that as a result of the applicant breaching the previous Order, I should not consider any submissions beyond page 15. The applicant’s actual submissions are from pages 4 to 19, as the first 3 pages contain a cover page, and index. The respondent further submits that it would be prejudiced if the applicant was allowed an additional 5 pages of submissions, meanwhile it would be subject to the 12-page limit.

3The parties agreed on consent during the case conference to set the page limit for the initial submissions to 12 pages. Moreover, the previous Order clearly stated that the hearing adjudicator may not consider submissions which exceeded the page limit.

4I disagree with the applicant that he was compliant with the page limit as his submissions are clearly over the page limit of 12 pages. I further disagree with the applicant that the submissions he made pertaining to case law and evidence are exclusive of the page limit. The previous Order was clear that the page limit for submissions was 12 pages, which includes submissions being made on the evidence and case law to support his position for entitlement of benefits. Moreover, the previous Order was clear that the actual evidence and caselaw were exclusive of the page limit and not the submissions being made on this.

5In accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023 (“the Rules”), I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the Tribunal. However, the respondent has failed to demonstrate any actual prejudice that it sustained as a result, other than stating it would be unfair for the applicant to have an extra 5 pages of submissions. When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter. As such, I will not exclude the applicant’s submissions beyond page 15 as requested by the respondent as it would prevent the applicant from addressing the treatment plans in dispute, interest, and an award. However, I remind the applicant that non-compliance with Tribunal Orders is strongly discouraged, and it was solely within my prerogative to permit these additional submissions into the record.

PRELIMINARY ISSUE 2- LATE FILING/SERVICE OF APPLICANT’S REPLY SUBMISSIONS

6The applicant served his reply submissions on the respondent and filed them with the Tribunal on April 10, 2023, three days following the deadline.

7The respondent did not raise an issue with respect to the applicant filing his reply submissions. The previous Order was clear that the applicant was to serve and file his reply submissions 7 calendar days prior to the scheduled hearing date. On August 19, 2022, the parties were sent a Notice of Written Hearing which advised that the written hearing for this matter was scheduled for April 14, 2023. As such, it is clear that the applicant was noncompliant with the previous Order and late served/filed his reply submissions.

8Despite the clear breach of the previous Order, in accordance with Rule 3.1(a) of the Rules, I will still consider the applicant’s reply submissions, as the applicant would be prejudiced if his reply is not considered by the Tribunal for the purposes of this hearing. However, once again, I strongly encourage the applicant to be compliant with Tribunal Orders in the future and it was sorely within my prerogative to allow his late reply submissions to be considered for the purposes of this hearing.

ISSUES

9The issues in dispute are:

1. 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”)
2. Is the applicant entitled to $3,696.50 for massage and chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan (“OCF-18”) submitted on March 28, 2019?
3. Is the applicant entitled to $3,236.50 for physiotherapy and chiropractic services, proposed by Chinguacousy Physiotherapy and Foot Clinic in an OCF-18 submitted on August 21, 2020?
4. Is the applicant entitled to $2,260.00 for a psychological assessment, proposed by Medex Assessments Inc., in an OCF-18 submitted on June 13, 2019?
5. Is the applicant entitled to $2,147.00 for an attendant care assessment proposed by Medex Assessments Inc., in an OCF-18 submitted on June 26, 2019?
6. Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10I find that the applicant’s injuries fall outside of the MIG due to his chronic pain.

11I find that the applicant is entitled to the following OCF-18s with interest:

i. An OCF-18 for massage and chiropractic treatment in the amount of $3,696.50, submitted on March 28, 2019; ii. An OCF-18 for physiotherapy treatment and chiropractic treatment in the amount of $3,236.50, submitted on August 21, 2020; and iii. An OCF-18 for a psychological assessment in the amount of $2,260.00, submitted on June 13, 2019.

12I further find that the applicant is not entitled to the following OCF-18 or interest on this:

i. An OCF-18 for an attendant care assessment in the amount of $2,147.00, submitted on June 26, 2019.

13Lastly, I find that the applicant is not entitled to an award pursuant to Regulation 664.

PROCEDURAL ISSUE- adverse inference

14The applicant did not provide any pre-accident clinical notes and records from any doctors, hospitals, or clinics.

15The respondent submits that I should draw an adverse inference against the applicant as he failed to provide any pre-accident records. More particularly, the respondent submits that I should draw an adverse inference and conclude that the applicant’s pre-accident medical records would likely show that he had physical and psychological issues that pre-date the accident. To support its position, the respondent relies on the authority of Shaikh v. Economical Insurance Company, 2023 CanLII 2690 (“Shaikh”).

16The applicant submits in his reply that an OHIP Summary was produced to the respondent from June 15, 2015 to October 15, 2021. From my review of the OHIP Summary, I note that the applicant was a patient of his family physician, Dr. Saini since at least June 2015. I further note that the applicant was placed on a Form 1 (application by physician for psychiatric assessment) on December 25, 2016. The applicant submits that the pre-existing entries as contained in the OHIP Summary cannot be connected to his accident-related physical and psychological complaints.

17I find that the applicant has established he sustained chronic pain in his lower back and neck and depression as a result of the accident. On February 17, 2022, Dr. Kostovic (OHIP chronic pain specialist), concluded that the applicant had chronic lower back pain which was most likely caused by this accident. Moreover, Dr. Saini, who is the applicant’s family physician since at least June 2015, concluded on February 2, 2023, that the applicant sustained chronic lower back and neck pain syndrome and depression directly as a result of the accident. I further find the authority of Shaikh to be unpersuasive. In Shaikh, virtually all of the applicant’s current complaints were pre-existing as demonstrated by the family physician records and the Tribunal was unable to differentiate between the applicant’s pre-existing and accident-related impairments. Further, in Shaikh, the records that were produced by the applicant’s family physician following the accident showed that the applicant’s pain and depression were improving. As such, the Tribunal drew an adverse inference from the applicant’s failure to produce further family doctor records and concluded that they would have shown steady improvement. In this matter, Dr. Saini and Dr. Kostovic’s records clearly indicate that the applicant has sustained impairments from this accident which have not improved.

ANALYSIS

The Minor Injury Guideline

18The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

19Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

20The applicant submits that he should be removed from the MIG on the following grounds:

(i) He has been diagnosed with chronic pain syndrome and or his chronic pain causes functional impairment and disability; (ii) He has psychological impairments such as depression, an adjustment disorder, and anxiety; and (iii) He has post concussion syndrome.

21The respondent submits that the applicant’s accident-related injuries are captured within the MIG. The respondent further submits that the applicant does not suffer from pain that rises to the level of chronic pain. The respondent further submits that the applicant has not submitted any expert reports that opine on the applicability of the MIG and/or whether any of the disputed OCF-18s are reasonable and necessary.

22I find that the applicant has demonstrated that he suffers from chronic pain with a functional impairment as a result of this accident, and as such, the applicant is removed from the MIG. As I have determined that the applicant is removed from the MIG on the basis of his chronic pain, I do not need to consider whether his psychological impairments or his alleged diagnosis of post-concussion syndrome will remove him from the MIG.

The applicant has demonstrated that he has chronic pain with a functional impairment which would remove him from the MIG

23I find that the applicant has established on a balance of probabilities he suffers from chronic pain that causes significant suffering and distress and functional impairments to his work, and therefore he is removed from the MIG.

24The diagnosis of chronic lower back pain made by Dr. Saini, and Dr. Kostovic, is sufficient to remove the applicant from the MIG. The applicant has also produced evidence that he suffers from ongoing pain that is causing significant suffering and distress to the extent that he requires nerve block injections and trigger point injections. Further, Dr. Saini’s records demonstrate that the applicant has consistently reported lower back pain complaints from January 11, 2019 to August 10, 2021. Also, Dr. Saini diagnosed him with chronic lower back pain, noted that the applicant had poor sleep as a result, and prescribed Vimovo. On August 10, 2021, the applicant presented with back and neck pain and as a result, Dr. Saini referred the applicant to Dr. Kostovic. On February 17, 2022, Dr. Kostovic noted that the applicant’s pain would wake him at night, almost every night, that he was having lots of emotional depression secondary to chronic pain and had significant fatigue. Dr. Kostovic conducted objective testing which demonstrated restricted range of motion in the applicant’s lumbar back and straight leg testing for both legs were abnormal. As a result, Dr. Kostovic diagnosed the applicant with chronic lower back pain with suspected radiculopathy. Further, Dr. Kostovic opined that the applicant’s chronic lower back pain was most likely caused by this accident.

25In addition, as of March 2022, the applicant is undergoing regular nerve block and trigger point injections for his lower back with Neupath Centre for Pain, a chronic pain clinic. On May 24, 2022, Dr. Saini continued to note in his records that the applicant had chronic pain. On February 2, 2023, Dr. Saini diagnosed the applicant with chronic back and neck pain syndrome. As such, the records clearly demonstrate that the applicant suffers from ongoing pain that has persisted despite treatment, and injections.

26In addition, the applicant has demonstrated that his ongoing lower back pain has resulted in reduced function in his pre-accident employment. The applicant has consistently reported to Dr. Saini, Dr. Kostovic, and s.44 assessors, Dr. Ming-Wai Tu, general practitioner (“GP”) and Dr. Belfon, GP, that his pain has affected his ability to work as he once did. In her report dated August 23, 2019, Dr. Ming-Wai Tu noted that the applicant quit his job in November 2018. On September 10, 2019, Dr. Saini noted that the applicant was not working. On February 17, 2022, the applicant advised Dr. Kostovic that he was currently working as a truck driver but was off for the past month due to back pain and testing positive for Covid-19 in January 2022. Moreover, Dr. Kostovic noted that the applicant was an inactive person due to pain and that he had limitations with function at work.

27While I acknowledge that the applicant did not advise Dr. Belfon on August 11, 2022, that he had stopped working for one month in January 2022 due to his back pain and being diagnosed with COVID-19, I find that this is a minor inconsistency. The applicant advised Dr. Belfon that he was off work from November 2018 to December 2019, he then returned to working in December 2019 until April 2020 when he had to stop due to COVID-19 restrictions. The applicant then returned to working 30-60 hours a week in June 2020, and as of August 11, 2022, he was working reduced hours of 30 hours per week. This self-reporting by the applicant to Dr. Belfon is consistent with his self-reporting to Dr. Saini, and Dr. Ming-Wai Tu. I find the rest of the applicant’s self-reporting was consistent with what he told Dr. Kostovic.

28Lastly, I prefer the evidence of the applicant over the respondent. Dr. Ming-Wai Tu, in her reports dated August 23, 2019, and September 18, 2019, did not have any of the clinical notes and records of Dr. Saini, Dr. Kostovic, and Neupath Centre for Pain in her review prior to her assessment. Those records may have impacted Dr. Ming-Wai Tu’s opinion that the applicant only sustained a lumbar strain as a result of the accident had she known that the applicant was diagnosed with lower back chronic pain and was receiving nerve block and trigger point injections. I am also not persuaded by the report of Dr. Belfon, dated August 25, 2022, as the records of Dr. Saini, Dr. Kostovic, and Neupath Centre for Pain clearly demonstrate that the applicant suffers from chronic pain in his lower back, which is persistent, affects his ability to sleep, and work as he once did and as such, he requires injections. It is clear to me that the applicant does not suffer from uncomplicated soft tissue injuries as suggested by Dr. Belfon. Moreover, Dr. Belfon noted that the applicant’s prognosis was guarded for the applicant to return to his pre-accident baseline, which supports that the applicant’s chronic back pain has affected his ability to live his pre-accident life.

29Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that he suffers from chronic pain with a functional impairment that is sufficient to remove him from the MIG.

The applicant has demonstrated that the OCF-18s for physiotherapy, chiropractic treatment, and massage therapy are reasonable and necessary

30Since the applicant is removed from the MIG, he can apply for medical and rehabilitation benefits above the MIG limits.

31To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. In order to do so, an applicant must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall costs of achieving the goals is reasonable.

32The OCF-18, in the amount of $3,696.50, submitted on March 29, 2019, was for massage and chiropractic treatment. The goals of the OCF-18 were to: reduce pain, increase strength, increase range of motion, and to return the applicant to his activities of normal living, and return to modified work activities. The OCF-18 in the amount of $3,236.50, submitted on August 21, 2020, was for chiropractic and physiotherapy treatment. The goals of the OCF-18 were to: reduce pain, increase strength, increase range of motion, and for the applicant to return to his activities of normal living.

33I find that the proposed treatment is reasonable and necessary to help improve the applicant’s lower back pain. On February 17, 2022, Dr. Kostovic opined that the applicant’s pain had worsened since he stopped physiotherapy and as such, he should restart physiotherapy treatment. Further, the applicant advised Dr. Kostovic that he found pain relief with physiotherapy and chiropractic treatment. Moreover, the applicant advised IE assessor, Dr. Ming-Wai Tu that physiotherapy treatment helped to improve his pain. While on February 2, 2023, Dr. Saini noted that the applicant had reached maximum medical improvement, he still opined that the applicant required physiotherapy, chiropractic, and massage therapy as a result of the accident. Dr. Saini is the applicant’s family physician so he would have more intimate knowledge regarding the applicant, and he determined that the proposed treatment is reasonable and necessary.

34Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that these OCF-18s are reasonable and necessary.

The applicant has demonstrated that he is entitled to the cost of the psychological assessment.

35I find that on a balance of probabilities, the applicant has demonstrated that a psychological assessment is reasonable and necessary.

36The applicant submits that there is a reasonable possibility that he has the condition that the psychological assessment aims to investigate, as Dr. Saini noted that he has post-MVA depression, chronic depression, and anxiety. Further, the applicant submits that he has been taking antidepressants such as Cipralex and Wellbutrin. As such, a full psychological assessment is necessary to determine the applicant’s diagnosis and psychological treatment needs.

37The respondent submits that this OCF-18 is not reasonable and necessary based on a s.44 report completed by Dr. Nikkhou, psychologist.

38I agree with the applicant that he has depression directly from this accident, as this was clearly opined by his family physician, Dr. Saini. Further, I note that the records of Dr. Saini note that the applicant has an adjustment disorder and anxiety, albeit there is no reference to what the cause of this is. While I acknowledge that Dr. Nikkhou, in her report dated September 18, 2019, conducted validity testing which produced an invalid profile, she still diagnosed the applicant with subclinical features of an adjustment disorder with subclinical anxiety symptoms. Moreover, Dr. Nikkhou concluded that the applicant required some sessions of psychoeducational counselling to address his subclinical adjustment reactions. In addition, Dr. Nikkhou did not review Dr. Saini’s report of February 2, 2023, and this may have changed her opinion that the applicant did not have a psychological diagnosis as a result of the accident. I find that the psychological assessment is reasonable and necessary to determine the course of treatment for the applicant’s depression and to explore if he has an adjustment disorder or anxiety that would require additional treatment.

39Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.

The applicant has failed to demonstrate that he is entitled to an attendant care assessment

40I find that on a balance of probabilities, the applicant has failed to demonstrate that he is entitled to the cost of an attendant care assessment.

41The applicant has failed to demonstrate that he has any restrictions with his personal care which would warrant a need to conduct an assessment to determine whether he requires attendant care services. While I acknowledge the applicant has limitations with his pre-accident employment and some housekeeping tasks, he has told Dr. Kostovic, Dr. Ming-Wai Tu, and Dr. Belfon, that he is completely independent with his personal care tasks and does not require any assistance following the accident. As such, I find that an assessment for attendant care needs is not reasonable and necessary as the applicant’s ability to complete his personal care tasks have not been affected by the accident.

42Accordingly, and for the reasons outlined above, the applicant has not demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.

Interest

43Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As such, I find the applicant is entitled to interest on any overdue payment of benefits for the following OCF-18s:

i. OCF-18 for massage and chiropractic treatment in the amount of $3,696.50 submitted on March 28, 2019; ii. OCF-18 for physiotherapy and chiropractic treatment in the amount of $3,236.50 submitted on August 21, 2020; and iii. OCF-18 for a psychological assessment in the amount of $2,260.00 submitted on June 13, 2019.

44The respondent submits that the applicant should not be allowed interest because it would be unfair since the applicant only produced a significant amount of medical evidence on February 13, 2023, which was the final production exchange deadline set out in the previous Order. The respondent has not referred me to any requests made by it pursuant to s.33 of the Schedule, and as such, I assume that no s.33 requests were made by it for these records to determine whether the applicant would be entitled to the benefits in dispute. As I have found the applicant to be removed from the MIG, and found these OCF-18s reasonable and necessary, interest is overdue and payable.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

45I find that the applicant is not entitled to an award. It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. In order for an award to be awarded, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.

46Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

47The applicant submits that the respondent withheld payment for the OCF-18 of a psychological assessment as the respondent relied entirely on the outdated s.44 report of Dr. Nikkhou. The applicant further submits that since 2019, the respondent received clinical notes and records from various medical practitioners which diagnosed the applicant with: depression, anxiety, neurosis, hysteria, and that it deliberately ignored these findings. Further, the applicant submits that the respondent deliberately disregarded the diagnosis of chronic pain made by Dr. Saini and Dr. Kostovic.

48The respondent submits that the applicant provided a significant amount of medical evidence on February 13, 2023, which was the final production exchange deadline set out in the previous Order. As such, it would be unfair to order an award against it as it was not given a proper opportunity to consider the newly received information during the course of adjusting the claim.

49The applicant did not contest that he served a significant amount of medical evidence until February 13, 2023, which was only 60 calendar days before this hearing. Further, the applicant did not provide any evidence of exactly when the alleged clinical notes from various medical practitioners were sent to the respondent, other than to say it was sent in 2019.

50As such, I find that the applicant is not entitled to an award as the respondent did not ignore the medical evidence of Dr. Saini, Dr. Kostovic, and Neupath Centre for Pain as these records were largely only provided to the respondent on February 13, 2023. I agree with the respondent that it did not have a proper opportunity to consider the newly received information. Further, the respondent did not behave in bad faith by keeping the applicant within the MIG and denying the OCF-18s for issues 2-4 as there was limited medical evidence provided to it at the time of denying these benefits.

ORDER

51I find that the applicant’s injuries fall outside of the MIG due to his chronic pain.

52I find that the applicant is entitled to the following OCF-18s with interest:

i. OCF-18 for massage and chiropractic treatment in the amount of $3,696.50 submitted on March 28, 2019; ii. OCF-18 for physiotherapy and chiropractic treatment in the amount of $3,236.50 submitted on August 21, 2020; and iii. OCF-18 for a psychological assessment in the amount of $2,260.00 submitted on June 13, 2019.

53I further find that the applicant is not entitled to the following OCF-18 or interest on it:

i. OCF-18 for an attendant care assessment in the amount of $2,147.00 submitted on June 26, 2019.

54Lastly, I find that the applicant is not entitled to an award pursuant to Regulation 664.