Licence Appeal Tribunal File Number: 21-003064/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:
Koshala Sinnarajah
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Jeremy Magence, Counsel
For the Respondent:
Michaelson Fleurantin, Counsel
HEARD: In Writing
OVERVIEW
1Koshala Sinnarajah, the applicant, was involved in an automobile accident on April 30, 2019, 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, TD Insurance, 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 by the Schedule and subject to the $3,500.00 maximum treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Dr. Saadia Akram-Pall in a treatment plan/OCF 18 (“plan”) dated August 1, 2019, submitted on October 9, 2019, and denied October 10, 2019?
iii. Is the applicant entitled to chiropractic services proposed by Active Healthcare Management, as follows:
$2,979.98 in a plan dated September 9, 2019, submitted on November 13, 2019, and denied July 15, 2020?
$2,904.98 in a plan dated January 29, 2020, submitted on March 28, 2020, and denied April 9, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The date of the three treatment plans and their submission dates were corrected by way of written submissions and submitted evidence.
RESULT
4The applicant has not demonstrated that her accident-related injuries justify removal from the MIG. She is not entitled to the treatment plans and no interest is payable.
procedural ISSUE
Compliance with the Case Conference Report and Order (“CCRO”)
5I find that neither party fully complied with the CCRO. I will consider both parties submissions but exclude from consideration the respondent’s evidence at Tabs H and I for the reasons outlined below.
6In reply submissions, the applicant submits that the respondent failed to comply with the Tribunal’s order for productions as well as the required format for written submissions and evidence. She requests that I consider only the first ten pages of the respondent’s submissions, that the submission dates of the OCF-18s stand as listed on the CCRO (not as corrected by the respondent in written submissions), and that Tabs H and I of the respondent’s evidence be excluded as they contain documents not previously disclosed.
7The applicant claims procedural unfairness as a result.
Length and Format of Submission
8The applicant notes that the respondent’s submissions were 12 pages despite a 10-page limit, and further, used some single line spacing. It is true that the respondent’s written submissions were two pages longer than ordered. However, the occasional single-spacing is a non-issue in my opinion, given that these passages are minimal, and also refer to lists or other content that is appropriately presented using a single-space format, as long as it is used sparingly.
9Further, I note that the applicant’s submissions also do not fully comply with the CCRO. Non-standard margins are used in reply submissions, allowing for more written content within the 5-page limit. In addition, her submissions list the wrong Tribunal file number on the cover page, and she fails to reference the evidence using both tab and page numbers as per the Tribunal’s order.
10Thus, given that both parties gained some advantage through a lack of compliance with the CCRO, I decline to exclude any pages from the respondent’s submissions. In this way, I do not find any procedural unfairness to either party.
Submission dates of OCF-18s
11The applicant also alleges that the respondent corrected the submission dates of the three treatment plans, without providing any supporting evidence.
12The respondent corrected the submission dates of the three OCF-18s in its written submissions as follows:
i. OCF-18 for a psychological assessment dated August 1, 2019, but submitted on October 9, 2019;
ii. OCF-18 for chiropractic services in the amount of $2,904.28 dated January 29, 2020, but submitted on March 28, 2020; and
iii. OCF-18 for chiropractic services in the amount of $2,979.98 dated September 9, 2019, but submitted on November 13, 2019.
13Although the respondent did not provide supporting evidence for these corrections, the applicant provided evidence that did – the OCF-18s each show the date and time it was submitted to the Health Claims for Auto Insurance (“HCAI”) system at the top of the first page. Each OCF-18 confirms the respondent’s submission dates as outlined above.
Document Production / Evidence
14Lastly, the applicant alleges that the contents of two tabs in the respondent’s evidence contain indices with hyperlinks to a plethora of documents not previously produced.
15In the case of the hyperlinks, I accept the applicant’s argument that Tabs H and I of the respondent’s evidence should not be considered. I am unable to say whether or not there are new documents that were not previously disclosed among the overall document store. Each tab lists a series of hyperlinks many of which have identification numbers rather than titles. Further, in its submissions, the respondent refers only to the tab itself, not any specific document, leaving it unclear which of the many hyperlinks are applicable. The titles of the tabs offer little to clarify the situation, identifying “Rescheduled psych as February 27, 2020” and “Rescheduled psych as June 30, 2020” respectively. The respondent’s written submissions offer no explanation for the dozens of hyperlinks provided. It appears to be an error.
16Whether error or intentional, neither the applicant or the Tribunal can be certain of what is contained in Tabs H and I of the respondent’s evidence. There may or may not be documents not previously disclosed.
17As a result, I decline to consider the contents of Tab H and I. These tabs contain a hyperlinked document store with dozens of separate documents, none of which are clearly identified. In addition, the respondent refers only to the tab itself in submissions, not both the tab and page number as required by the CCRO. The CCRO advised the parties that the hearing adjudicator may choose not to consider evidence not properly referenced and I avail myself of this choice.
18The applicant’s request is partially granted. I will consider both parties full submissions but exclude Tabs H and I of the respondent’s evidence from consideration.
ANALYSIS
The Minor Injury Guideline
19Section 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.”
20An insured person 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal 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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
21The applicant submits that the subject accident caused chronic pain in her neck, back and shoulders which affected her ability to function and interfered with work, housekeeping, and childcare activities. She claims pre-existing conditions of low back pain, radiculopathy, and migraines and argues that these conditions prevent her maximum medical recovery if limited to the funding available under the MIG. She further submits that she had symptoms of anxiety, depression, and stress, that further impacted her social activities and work life.
22The respondent submits that the applicant’s injuries are minor. It argues that there is no compelling medical evidence to support a finding that she had any pre-existing conditions, chronic pain with a functional impairment, or psychological impairment due to the accident.
The applicant’s injuries are minor as defined by the Schedule.
23I find that the applicant’s injuries are minor as defined by s. 3 of the Schedule.
24The applicant relies on the clinical notes and records (“CNRs”) of her general physician (“GP”) Dr. Figurado, the disability certificate and treatment plans completed by the healthcare providers at Active Health Care Management, and the results of a preliminary interview with psychologist Dr. Akram-Pall.
25The respondent relies on the same medical evidence with the addition of the reports from its s. 44 assessors, Drs. Ko (physiatrist) and Syed (psychologist). It underlines that the applicant did not attend the hospital after the accident, the medical evidence from both her GP and Active Health Care Management document soft tissue injuries, and the results from the imaging showed only mild degenerative changes and mild scoliosis.
26In my view, the medical evidence relied on by the applicant shows that she sustained predominantly minor injuries as a result of the accident. The applicant did not require a hospital visit on the day of the accident. Instead, she visited her GP a few days later and reported pain in her head, neck, back, and chest. Dr. Figurado determined that she had musculoskeletal pain from the collision, prescribed anti-inflammatories, and referred her for physiotherapy. She returned twice in each of 2019 and 2020, with similar complaints of pain. Dr. Figurado referred her for more physiotherapy, an X-ray, medication, and an MRI. Imaging revealed mild degenerative changes in her spine, minimal vertebrae slippage and very mild scoliosis. Thus, I find the CNRs of her family physician do not show any serious injuries but rather soft tissue injuries and other conditions unrelated to the accident.
27Likewise, treatment at Active Health Care Management produced more medical evidence of minor injuries. The disability certificate completed at the clinic on June 3, 2019, identified headache, and sprain and strain of the spine, shoulder, and knees. Subsequently, two treatment plans also listed soft tissue injuries as the reason for treatment.
28I see further evidence that the applicant’s injuries were minor in the s. 44 assessment reports of Drs. Ko and Syed. Dr. Ko, in an examination on November 12, 2019, found that she had slight reductions in her range of motion in the spine and shoulders, consistent with the definition of minor injury in the Schedule. His opinion remained unchanged after a paper review the following year on July 10, 2020.
29Lastly, the applicant noted that Dr. Ko spent only a short period of time in the examination and issued a report of only a few pages. I agree with this observation. However, the length of his report reflected his findings. His conclusions were presented in a concise manner and were consistent with the type of injuries documented in the CNRs of the applicant’s physician and on the documentation completed by Active Health Care Management.
30For the reasons outlined above, I find the applicant’s injuries fall within the definition of minor.
The applicant has not demonstrated that she has a pre-existing condition.
31I find that the applicant has not established that she has any pre-existing medical conditions that warrant removal from the MIG.
32The applicant submits that she has pre-existing conditions of low back pain, radiculopathy, and migraines, all aggravated by the accident and that prevent maximum medical recovery. She relies on the CNRs of her GP, Dr. Figurado, who documented some back pain, knee pain, and migraines prior to the accident.
33The respondent refers to the findings of Dr. Ko, who found no evidence of a pre-existing medical condition that would prevent maximum medical recovery. Dr. Ko also confirmed that she had no persistent injury from a previous car accident.
34While I acknowledge that the applicant’s GP documented pre-accident low back pain, radiculopathy, and migraines, there is nothing in those CNRs to indicate that either the back and knee pain, or migraines, would prevent her from reaching maximal medical recovery under the MIG as claimed by the applicant. Further, support for this conclusion is provided by the s. 44 assessors who both determined that there was no compelling evidence of a pre-existing medical condition.
35The applicant has not met her onus to prove that she has any pre-existing conditions that would justify removal from the MIG.
The applicant has not demonstrated that she has chronic pain with a functional impairment.
36I find that the applicant has not established that she has chronic pain with a functional impairment.
37The applicant argues that the pain in her neck, back, and shoulders has become chronic and resulted in a functional impairment that interferes with her work, housekeeping, and childcare duties. The position of the respondent is that the applicant’s pain symptoms are mere sequalae that do not exclude her from the MIG. It points to the lack of a chronic pain diagnosis, or evidence that her pain symptoms are ongoing and have had a significant impact on her functionality.
38More than two years post-accident, Dr. Figurado completed a disability certificate. He noted cervical strain, dorsal strain, lumbar strain, chest wall and shoulder pain, and anxiety, and documented that her work and childcare activities were limited. However, he takes no further action and does not refer her to a chronic pain specialist, nor does he label her symptoms as “chronic pain”. With regard to any functional impairment, there are few particulars provided about how her social, work and home activities were affected by any limitations that developed because of the accident.
39In my view, the CNRs of Dr. Figurado do not support a conclusion that the applicant has chronic pain with a functional impairment. Other than the notations of her symptoms, and a short-term disability certificate, there is no other evidence that her symptoms rise to the level of chronic pain, or that she has a substantial physical impairment that would justify removal from the MIG. Dr. Ko, a physical medicine and rehabilitation specialist, provides further support that the applicant’s injuries are minor. He could find nothing more than sprain/strain type injuries in his examination.
40The applicant has not met her onus to prove that she has chronic pain with a functional impairment.
The applicant has not demonstrated that she has a psychological impairment.
41I find that the applicant has not established that she has a psychological impairment.
42The applicant points to her psychological symptoms of anxiety, depression, and stress as justification for removal from the MIG. She submits that her GP documented her anxiety after the accident and physiotherapist Bajaj referred her to psychologist Dr. Akram-Pall. She adds that the outcome of a preliminary interview with Dr. Akram-Pall resulted in a proposed treatment plan for a full psychological assessment.
43With regard to her psychological symptoms, the respondent submits that they are mere sequelae and do not exclude her from the MIG. It points out that despite arranging for an insurer’s examination (“IE”) on November 14, 2019, the applicant did not complete it that day, and it had to be rescheduled many times. The applicant did not provide any explanation for the delay. The assessment eventually took place on February 16, 2022. At the assessment, the applicant reported feeling depressed and anxious with driving-avoidance and passenger-related phobias. However, the results of objective testing could not be reconciled with her self-reported symptoms, particularly with regard to the intensity of the symptoms. Dr. Syed concluded that there was no objective evidence to substantiate a psychological diagnosis and concluded that the applicant’s symptoms fit the definition of minor.
44While it is true that the applicant’s physician documented anxiety after the accident, and the treatment providers at Active Health made a referral to a psychologist, it is important to consider that her GP did not think it necessary to make such a referral at any point. Although Dr. Akram-Pall’s treatment plan had cited “adjustment disorder, neurotic disorder, unspecified, and specific (isolated) phobias”, these were only her first impressions based on a telephone interview and the results of a questionnaire. There is no other medical evidence to substantiate that the applicant suffered a psychological impairment as a result of the accident.
45Further, during the assessment with Dr. Syed, she was unable to remember any details about the subject accident and could not recall the details of her treatment after the accident, psychological or otherwise. Despite the applicant’s personal descriptions of her pain and distress, Dr. Syed could not reconcile them with her objective findings from a battery of tests and a clinical interview. Thus, I give less weight to the applicant’s personal accounts of her symptoms as her memory is faulty, she delayed multiple times before attending the exam nearly three years later, and her descriptions are at odds with the objective findings of the assessor. Consequently, I give her self-reports less weight because they are unreliable.
46The applicant has not met her burden to prove that she should be removed from the MIG on the basis of a psychological impairment.
Conclusion
47I find that the applicant’s injuries from the accident fall within the definition of minor in s. 3 of the Schedule. She has not met her burden to prove she has a pre-existing condition that prevents maximal recovery under the MIG, that she has chronic pain with a functional impairment, or a psychological impairment.
48Accordingly, she remains subject to the $3,500.00 treatment limit of the MIG.
The applicant is not entitled to the Treatment Plans.
49I have determined that the applicant’s injuries are properly treated within the MIG. Therefore, she is not entitled to the plans in dispute because they propose treatment outside of the MIG.
50However, the applicant raises the alternative argument that two of the plans in dispute are payable, due to the respondent’s non-compliance with s. 38(8) of the Schedule.
51For the reasons below, I find that the applicant has not established that either of the plans is payable pursuant to s. 38(8).
Plan in the amount of $2,979.98 for chiropractic services and s. 38(8)
52I find that the plan for chiropractic services dated September 9, 2019, submitted on November 13, 2019, and denied on July 15, 2020, is not payable pursuant to s. 38(8).
53In written submissions, the applicant refers specifically to the plan dated September 9, 2019. In reply submissions, she refers to the “treatment plans” – plural - and refers back to paragraph 22 of her written submissions. Paragraph 22 refers only to one treatment plan – the plan dated September 9, 2019. This is the plan addressed here.
54The applicant submits that the respondent’s denial of the plan was outside the 10 business days’ notice requirement and therefore is fully payable pursuant to s. 38(11). She further submits that inadequate reasons were provided because a reference to her status in the MIG was the only reason provided. The respondent disagrees and notes, as outlined earlier in the decision, that the actual submission date of the plan was November 13, 2023. The respondent submits that it provided adequate reasons for the denial.
55The applicant did not submit any evidence in support of her argument. The initial notice letter, presumably denying the plan and requesting an IE, was not submitted. It is the applicant’s burden to prove entitlement. In this case, she has not established that the respondent’s denial letter was non-compliant with s. 38(8).
Interest
56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
57As no benefits are payable, no interest is owed.
ORDER
58The applicant remains in the MIG and is subject to its $3,500.00 limit on treatment.
59The applicant is not entitled to the disputed treatment plans or interest.
60The application is dismissed.
Released: December 22, 2023
Bonnie Oakes Charron
Adjudicator