Popal v. Intact Insurance, 2023 CanLII 93028

Popal v. Intact Insurance

Citation: Popal v. Intact Insurance, 2023 ONLAT 21-006496/AABS

Licence Appeal Tribunal File Number: 21-006496/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:

Benafsha Popal

Applicant

and

Intact Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Camille Narine-Ramrattan, Paralegal

For the Respondent: Joseph Kositsky, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Benafsha Popal (the “applicant”) was involved in a motor vehicle accident on June 2, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Intact Insurance (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 two 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.

2In the case conference report and order (“CCRO”) dated June 22, 2022 that set this matter down for a hearing, it is noted that both parties agreed that the MIG limit of $3,500.00 had been exhausted. As a result, entitlement to the two treatment plans in dispute here is dependent on a finding that the applicant should be removed from the MIG.

PRELIMINARY ISSUE

3The following preliminary issue is in dispute:

1. Should tabs 12-16 of the applicant’s submissions (containing the updated clinical notes and records (“CNRs”) from the applicant’s family physician and psychiatrist, as well as the applicant’s OHIP records), along with any arguments referencing these documents, be excluded from evidence due to the late submission of these documents in contravention of the CCRO dated June 22, 2022?

4The respondent submits that the applicant failed to comply with the CCRO provisions on document exchange. It notes that the CCRO ordered the applicant to provide updated CNRs from her family doctor for the period of September 1, 2017 to present, CNRs from her psychiatrist, and any OHIP records in the applicant’s possession by August 31, 2022. However, the respondent claims that the applicant provided these documents “late,” which provided the applicant with a “tactical advantage in this hearing.” To ameliorate any possible prejudice to the respondent, the respondent requests that tabs 12-16 of the applicant’s hearing submissions be excluded from evidence, as well as any arguments that refer to these documents.

5In her reply submissions, the applicant argues that she did not fail to comply with the provisions of the CCRO. She includes a timeline indicating that the CNRs of Dr. Raafat Mansour, family physician, and Dr. Abbas Azadian, psychiatrist, as well as the applicant’s OHIP summary, were provided to the respondent by email on a number of dates ranging between May 2022 and January 2023. Further, the applicant disputes that the production of these documents on the specified dates prejudiced the respondent, and notes offhandedly that the respondent failed to comply with the CCRO regarding the production of insurer log notes.

6I agree with the respondent that the applicant did not meet the production deadline as listed in the CCRO. I fail to understand the applicant’s argument in reply submissions that she did meet this provision of the CCRO, as she notes that the deadline was August 1, 2022, yet includes a detailed list of document production dates that run to January 2023.

7However, I find that the respondent has failed to demonstrate how it has been prejudiced by the late production of these documents. Although the respondent’s submissions state that late document production has provided the applicant with a “tactical advantage,” no specifics are provided concerning the nature of this alleged advantage. The respondent notes that the late submissions prevented the insurer from obtaining a subsequent medical opinion and adjusting the file accordingly. But the respondent fails to adduce evidence that the late records detailed changes in the applicant’s medical status that would have required such an additional medical opinion, or that the late records included new information that would have necessitated changes as to how this file was being adjusted.

8In addition, the respondent fails to offer evidence that these late submissions prevented it from properly mounting a defense in this hearing. No such difficulties are indicated in the respondent’s submissions that speak to the substantive issues in dispute.

9As a result, I exercise my authority under Rule 9.4 of this Tribunal’s Common Rules of Practice & Procedure and provide consent for these documents and the related arguments of the applicant to be entered into evidence. I also rely on s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to admit these documents and related arguments into evidence, as I find them relevant to the subject matter of this proceeding.

10For the above reasons, I am denying the respondent’s request to exclude from evidence tabs 12-16 of the applicant’s submissions and any of the applicant’s related arguments.

SUBSTANTIVE ISSUES IN DISPUTE

11The following substantive issues are in dispute:

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 of the MIG?

2. Is the applicant entitled to $2,564.96 for physiotherapy services in a treatment plan/OCF-18 recommended by Midland Wellness Centre and dated August 22, 2019?

3. Is the applicant entitled to $2,269.20 for physiotherapy services in a treatment plan/OCF-18 recommended by Midland Wellness Centre and dated November 19, 2019?

4. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

12I find that:

i. The applicant has failed to demonstrate that she suffers from a pre-existing condition that would prevent her recovery from accident-related injuries if held within the MIG, or that she suffers from injuries outside of the definition of minor as detailed in the Schedule. As a result, she 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, she is not entitled to the treatment plans in dispute, nor interest.

ANALYSIS

The Minor Injury Guideline (“MIG”)

13Section 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.”

14An 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.

15The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she suffers from pre-existing psychological conditions that prevent her maximal recovery if held within the MIG.

16The respondent counters that the applicant has failed to provide evidence that she suffers from any pre-existing condition that would preclude her recovery inside the MIG and its $3,500.00 limit on treatment. Further, it holds that the applicant’s direct accident-related physical injuries are soft-tissue in nature and therefore fall under the definition of a minor injury in the Schedule. Lastly, the respondent argues that the two treatment plans in dispute have not been demonstrated to be reasonable and necessary, and should be denied if the applicant is found to warrant treatment outside of the MIG.

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

17I find that the applicant has failed to demonstrate, on a balance of probabilities, that she suffers from a pre-existing condition that precludes her recovery if held within the MIG. I further find that the applicant has failed to demonstrate that she sustained accident-related injuries that fall outside of the definition of a minor injury as listed in s. 3(1) of the Schedule.

18To begin, I accept that the applicant has sufficiently proven that she has suffered from psychological issues since at least 2014. The CNRs of both Dr. Mansour, her family physician, and Dr. Azadian, her psychiatrist, thoroughly document a history of psychological difficulties that date back to as early as 2014 and continue until at least early 2023.

19But it is not sufficient for an applicant seeking removal from the MIG for a pre-existing condition to prove the existence of that pre-existing condition on a balance of probabilities. An applicant must also demonstrate how that pre-existing condition precludes recovery if held within the MIG. Here is where the applicant has not met her burden, as she has provided minimal evidence indicating any connection between her psychological issues and the accident, let alone a connection significant enough to preclude her recovery in the MIG.

20The applicant sought little medical treatment for any injuries related to the accident. Paramedics were not called to the scene. The applicant did not seek any medical attention in the immediate aftermath of the accident, by attending an emergency department, walk-in clinic, or her family physician. While the applicant visited Dr. Mansour on roughly a dozen occasions from July 5, 2017 through January 5, 2019, she never discussed the accident. All of these appointments dealt with other issues, most commonly concerns relating to psychological and emotional matters.¹

21In addition, the accident did not play a central role in the applicant’s psychiatric treatment. Only unrelated conditions were noted in the referral letter sent by Dr. Mansour to Dr. Azadian dated June 8, 2020. A psychological report authored by Dr. Azadian following a phone appointment with the applicant on June 16, 2020 also did not include any mention of the accident. In this report, Dr. Azadian diagnosed the applicant with “GAD [generalized anxiety disorder] mixed with depressive symptoms brought on by interpersonal conflicts and difficulty with academics.” The applicant apparently discussed the accident only once during over a dozen appointments with Dr. Azadian spanning June 12, 2020 to September 28, 2022. This occurred during a visit with the psychiatrist on November 10, 2021. Dr. Azadian wrote in his notes of this appointment that the applicant stated that she felt everything became worse after the subject accident, which resulted in “some back pain” and feeling “anxious in the car.”²

22I find that these CNRs do not support the applicant’s argument that she has a pre-existing condition that would warrant her removal from the MIG. The comments noted above are the sole references to the accident in the CNRs before me, and there are no specific comments regarding how these issues precluded her recovery from accident-related impairments.

23In addition, these CNR notations do not seem to have been followed up by Dr. Azadian. His records do not include any mention of further discussion between the psychiatrist and the applicant regarding how or why she believed that the accident worsened her psychological state. That the accident was brought up once and then never raised again leads me to infer that the psychiatrist did not believe it to be a noteworthy factor. The majority of the CNRs of Dr. Azadian focus on psychological concerns of the applicant unrelated to the accident and involving other aspects of life, such as family, school, and work-related stressors.

24Again, I accept that the applicant has fully substantiated that she suffered from pre-existing psychological conditions, and that these conditions continued after the subject vehicle accident. But very minimal evidence has been adduced connecting these issues with that accident to show that her recovery would be precluded if held within the MIG.

25I also find that the applicant has not provided sufficient evidence to demonstrate that she suffered from physical injuries that would warrant removal from the MIG.

26As noted above, there is no mention of the accident in the CNRs of Dr. Mansour. This leaves the insurer’s examination (“IE”) report of Dr. Farhan Siddiqui, family physician, dated April 2, 2020, to essentially stand alone. I assign it significant weight. In this report, which was ordered to assess the applicant with regard to the two treatment plans in dispute here, Dr. Siddiqui wrote that he diagnosed the applicant with soft-tissue accident-related injuries considered minor as defined by the Schedule. He found that the applicant had reached maximum medical recovery by the time of his examination, nearly three years post-accident, and deemed the plans to not be reasonable and necessary.

27For the reasons above, I find that the applicant has not demonstrated that she suffers from a pre-existing condition precluding her recovery within the MIG, nor has she demonstrated that she suffers from injuries that are not minor as defined in the Schedule. Correspondingly, she remains within the MIG and is subject to its $3,500.00 limit on treatment.

The Treatment Plans

28Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that she is not entitled to the treatment plans in dispute, nor interest.

ORDER

29I find that:

i. The applicant has failed to demonstrate that she suffers from a pre-existing condition that would prevent her recovery from accident-related injuries if held within the MIG, or that she suffers from injuries outside of the definition of minor as detailed in the Schedule. As a result, she 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, she is not entitled to the treatment plans in dispute, nor interest.

iii. The application is dismissed.

Footnotes

1. 1It should be noted that the CNRs of both Dr. Mansour and Dr. Azadian were provided in only their original handwritten forms, and as a result were somewhat challenging to read.
2. 2Ibid.