Thakral v. The Personal, 2023 CanLII 91443

Citation: Thakral v. The Personal, 2023 ONLAT 21-008640/AABS

Licence Appeal Tribunal File Number: 21-008640/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:

Sameer Thakral

Applicant

and

The Personal

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Nikolai Singh, Paralegal

For the Respondent: Jessica M. Baconpulos, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Sameer Thakral (the “applicant”) was involved in a motor vehicle accident on October 1, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Personal (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied three treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In submissions, the respondent provided claim file information showing that $3,302.62 had been exhausted of the $3,500.00 MIG limit as of April 20, 2021. The applicant did not dispute this claim.

3The treatment plan dated February 23, 2019 is the only disputed plan proposing treatment within the MIG. As a result, the applicant is entitled to any remaining MIG amount as of the date of this decision and as set forth in this treatment plan, once incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

4The other two plans in dispute, dated September 30, 2019 and December 15, 2019, propose treatment outside of the MIG. As a result, the applicant must be found to warrant removal from the MIG to be entitled to these plans.

PRELIMINARY ISSUE

5The following preliminary issue is in dispute:

1. Is the applicant barred from proceeding with a treatment plan for $1,644.48 for physiotherapy services denied March 2, 2019, as he failed to commence his application within two years of the date of the insurer’s denial in accordance with s. 56 of the Schedule?

RESULT

6I find that the applicant is not barred from proceeding with this treatment plan.

ANALYSIS

7Section 56 of the Schedule provides that an application to dispute the denial of a benefit shall be commenced within two years of the insurer’s refusal to pay said benefit.

8The respondent submits that the applicant filed his Tribunal application on July 13, 2021, two years, four months, and 11 days after the March 2, 2019 denial of the treatment plan described above. As a result, the respondent argues that the applicant should be barred from disputing this treatment plan. It references s. 56 of the Schedule, which imposes a two-year limitation period on applications. Further, the respondent holds that s. 56 is a “hard 2-year limitation period” and that the Tribunal has no discretion to extend this limit, relying primarily on S.S. v. Certas Home and Auto Insurance, 2016 CanLII 153125 (ON LAT).

9In any event, the respondent also submits that the applicant has not met the factors necessary to extend the limitation period. It notes that the applicant has not demonstrated a bona fide intention to appeal the denial within the two-year limitation period; that the applicant has not explained the length of the delay or cited any extenuating circumstances; and that this extended delay has prejudiced the respondent’s ability to assess information in a timely manner and adjust the file accordingly.

10The applicant did not provide submissions on this issue.

11I find that the respondent’s position does not take into account O. Reg 73/20, which was enacted on March 20, 2020. This regulation, which was implemented as a result of the Covid-19 pandemic, suspended limitation periods retroactively from March 16, 2020. O. Reg. 73/20 was in force for 183 days, the time between March 16, 2020 and the date that it was repealed on September 14, 2020. As a result, a limitation such as the two-year period specified in s. 56 of the Schedule can be extended by 183 days.

12This was affirmed in McAuley v. Canada Post Corporation, 2012 ONSC 4528, where the Ontario Superior Court of Justice found that O. Reg. 73/20 extended all running limitation periods by 183 days.

13Here, the limitation period for this issue started running on the denial date of March 2, 2019. The limitation period is therefore extended by 183 days in accordance with O. Reg. 73/20. This means that the expiration of the limitation period for this treatment plan is extended from March 2, 2021 to September 1, 2021.

14As the applicant submitted his application to the Tribunal on July 13, 2021, I find that he is not in contravention of s. 56 of the Schedule. As a result, he is not barred from disputing this treatment plan, and it is included in the list of substantive issues in dispute listed below.

SUBSTANTIVE ISSUES IN DISPUTE

15The following substantive issues are in dispute:

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 of the MIG?

ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Dr. Jeremy Frank Prof. Corp. in a treatment plan/OCF-18 dated September 30, 2019 and denied November 6, 2019?

iii. Is the applicant entitled to $4,146.63 for psychological services, proposed by Dr. Jeremy Frank Prof. Corp. in a plan dated December 15, 2019 and denied February 13, 2020?

iv. Is the applicant entitled to $1,644.48 for physiotherapy services, proposed by Physiomed Roytec Road in a plan dated February 23, 2019, submitted February 28, 2019 and denied March 2, 2019?

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

RESULT

16I find that:

i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to the benefits set out in the disputed treatment plan dated February 23, 2019, once incurred, up to the amount remaining under the MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is applicable, in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to the treatment plans dated September 30, 2019 and December 15, 2019, nor interest, as they propose treatment outside of the MIG.

ANALYSIS

The Minor Injury Guideline (“MIG”)

17Section 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.”

18An 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) of the Schedule. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

19The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

20In this instance, the applicant does not submit a specific written argument on the MIG determination at issue, or the specific factor or factors he is relying on to make his case for removal from the MIG. Instead, the applicant summarizes his medical treatment overall and concludes by writing that he has proven that he requires treatment outside of the MIG due to “ongoing injuries as a result of the motor vehicle accident.” However, in his general overview, the applicant relies largely on the diagnoses in a psychological assessment report to warrant removal from the MIG. As a result, I infer that this is his primary argument regarding the MIG issue, and I address it accordingly below.

21The respondent denies that the applicant should be removed from the MIG, arguing that he has been diagnosed with musculoskeletal pain that falls within the definition of a minor injury as defined in the Schedule, and that he has not sustained a psychological impairment related to the accident. As the respondent holds that no benefits are owing and overdue, it also maintains that the applicant is not entitled to interest.

The applicant has not demonstrated that he should be removed from the MIG

22I find that the applicant has not met his onus to demonstrate that his accident-related impairments warrant removal from the MIG.

23All that the applicant has submitted to support his claims of psychological impairment is a psychological assessment report completed by Dr. Jeremy Frank, psychologist, and dated December 15, 2019. Dr. Frank concluded in his report that the applicant met the criteria for somatic symptom disorder with predominant pain, moderate in severity; a major depressive disorder with anxious distress, moderate in severity; and significant features of post-traumatic stress disorder. These conditions and ongoing pain resulted in sleep disturbance, activity limitations, and avoidance patterns. Dr. Frank recommended that the applicant be treated with 12 1.25-hour sessions of cognitive behavioural therapy, but no evidence was submitted that he ever sought out such treatment.

24I assign this report little weight. I concur with the respondent’s position that this assessment was not completed in a timely fashion, that it relied too heavily on the self-reporting of the applicant, that it did not include any validity testing, and that Dr. Frank did not review the clinical notes and records (“CNRs”) of Dr. Sachin Batra, the applicant’s family physician. Detailed explanations follow.

25First, the Dr. Frank assessment was not conducted until November 9, 2019, more than 13 months after the accident. This lessens its evidentiary value because the applicant was involved in a second motor vehicle accident in September 2019, between the subject accident and this psychological assessment. Dr. Frank noted in his report that the applicant claimed this second accident was “minor,” but that it increased his “driving nervousness and sadness.” I assign these notations little weight, however, as they are entirely the result of the applicant’s self-reporting and have not been supported by objective medical evidence beyond this report. The second accident does, however, cloud Dr. Frank’s conclusions, as it is impossible to determine what resulted from the first accident and what resulted from the second accident.

26Second, unsubstantiated self-reporting of the applicant is the major component of Dr. Frank’s report. Much of the report features the applicant’s account regarding the impact of both the subject accident and the September 2019 accident on his psychological state. Dr. Frank seems to accept this account verbatim. And although he conducted an accident fear questionnaire, pain catastrophizing scales, pain patient profile, and personality assessment inventory psychometric tests, he did not conduct any testing specifically focusing on validity and symptom magnification.

27Yet as the respondent rightly points out in submissions, the applicant told a different story to Dr. Frank than he did to his family physician, Dr. Batra. The applicant actually did not tell any story at all to Dr. Batra regarding psychological impairments resulting from the accident, as he failed to mention such complaints to the family doctor during nine visits between October 2, 2018 and November 11, 2019 (no CNRs from Dr. Batra were submitted past this date). While the applicant discussed physical injuries resulting from the accident with Dr. Batra during some of these appointments, he never raised any of the psychological concerns that he did with Dr. Frank.

28As a result, I find that the applicant’s complaints to Dr. Frank were contradictory at best, and unsupported by objective medical evidence at worst. Either way, the effect is the same in the end, in that I assign the Dr. Frank report minimal weight in supporting the applicant’s case for removal from the MIG on psychological grounds.

29I prefer the insurer’s examination (“IE”) psychological report conducted by Dr. Peter Bernstein, psychologist, and dated November 18, 2020. The Dr. Bernstein report is more thorough than that of Dr. Frank in that he reviewed a significant amount of medical documentation, including the CNRs of Dr. Batra. Dr. Bernstein administered a performance validity test, finding that the applicant’s “approach to this measure could not allow the examiner to rule out the possibility that motivational factors influenced his response to this memory test.” The applicant declined to participate in some psychometric testing during the assessment, which was conducted via videoconference, and did not respond to these questions as submitted by email, as he had promised. The applicant told Dr. Bernstein that he did not act on the therapy recommendations of the Dr. Frank report as he “thought things should be fine by itself.” Finally, Dr. Bernstein found no evidence of clinically significant psychological injury, syndrome, impairment, or diagnosis to warrant treatment.

30Further, I find that a preponderance of the submitted evidence indicates that the applicant sustained primarily soft-tissue injuries that fall within the definition of a minor injury in the Schedule. Although the applicant provided medical records indicating that he suffered pain symptoms following the accident, there is no evidence that he suffered from chronic pain, a condition that can warrant removal from the MIG.

31All of the accident-related injuries that the applicant discussed with Dr. Batra involved pain in the neck, right shoulder, and right arm. Dr. Batra diagnosed the applicant with “MSK pain” and that he “likely suffered from a musculoskeletal injury” in the accident, and prescribed physiotherapy and massage therapy, along with baclofen for muscle spasms, and arthrotec, an NSAID.

32Later CNRs from Dr. Batra indicate that the applicant continued reporting pain in the neck and shoulders through November 2019, but that Dr. Batra maintained the diagnosis of MSK pain. Dr. Robert S. Yufe, neurologist, diagnosed the applicant with “chronic pain in his neck radiating into his head and both arms” in a report dated January 13, 2020, but I give this opinion little weight as it is not conclusive and is not based on any objective medical evidence. Despite this diagnosis, Dr. Yufe wrote “I suspect he will need assessment by a pain specialist” and that an MRI would be arranged of the cervical spine and head. No MRI results were submitted by the applicant, however, nor any records to show that the applicant ever visited a pain specialist.

33In addition, in the record of an appointment with the applicant on November 8, 2019, Dr. Batra noted that the applicant did not attend a scheduled appointment with a neurologist (apparently later resolved, given the Dr. Yufe report referenced above), that his imaging results were normal (supported by an x-ray report dated, December 14, 2018 and an ultrasound report dated March 12, 2019), that he was displaying “nonresponsive behavior,” and that the applicant “need[ed] to take some responsibility for his health.” All of this further underscores the many discrepancies between how the applicant was seeking treatment with his family physician and what he reported to Dr. Frank.

34Reviewed in totality, the CNRs of Dr. Batra support that the applicant suffered soft-tissue musculoskeletal injuries in the accident that fall within the minor injury definition in the Schedule. There is no indication in these CNRs that the applicant suffered any condition that would warrant removal from the MIG, be it chronic pain or a pre-existing injury that would preclude the treatment of his accident-related injuries if held within the MIG.

35For the above reasons, I find that the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

The Treatment Plans

36As noted in paragraphs #2 and #3, the applicant is entitled to whatever amount remains within the MIG as of the date of this decision, as such benefits that fall under the $3,500.00 MIG limit are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. This amount shall be applied to the treatment plan dated February 23, 2019, however, once incurred, as this is the only plan before me that proposes treatment within the MIG. Interest is also applicable, in accordance with s. 51 of the Schedule.

37The applicant is not entitled to the treatment plans dated September 30, 2019 and December 15, 2019, nor interest, as the applicant has been found to be within the MIG and these plans propose treatment outside of the MIG.

ORDER

38I find that:

i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to the benefits set out in the disputed treatment plan dated February 23, 2019, once incurred, up to the amount remaining under the MIG limit as of the date of this decision, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

iii. The applicant is not entitled to the treatment plans dated September 30, 2019 and December 15, 2019, nor interest, as they propose treatment outside of the MIG.