Ikponmwosa v. TD General Insurance Company, 2024 CanLII 102103
Licence Appeal Tribunal File Number: 22-012059/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:
Stacey Okungbowa-Ikponmwosa
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Geneviève Painchaud
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Priyanka Monpara, Counsel
HEARD:
In Writing
OVERVIEW
1Stacey Okungbowa-Ikponmwosa (the “applicant”) was involved in an automobile accident on August 24, 2021, 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 General 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 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $1,618.37 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated March 16, 2022?
iii. Is the applicant entitled to $2,144.93 for psychological services, proposed by Pilowsky Psychology Professional Corporation in a plan dated April 5, 2022?
iv. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by All Health Medical Centre in a plan dated June 1, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3Issues 4 and 6 as listed in the case conference report and order were withdrawn.
RESULT
4Based on the totality of the evidence before me, I find that:
i. The applicant sustained predominantly minor injuries that are treatable within the MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest.
PROCEDURAL ISSUE
5The respondent raises an issue of non-compliance of Tribunal orders (the “Order”) by the applicant.
6At the case conference held June 12, 2023, the applicant objected to providing any of the requested documents to the respondent. According to the case conference report and order (“CCRO”), the applicant submitted that “the respondent was given medical records that support the applicant’s position, but they are choosing to ignore those findings” and that the applicant did not see the relevancy of providing more records that would be equally ignored. The respondent’s position was that the file was properly assessed based on the medical records provided, but that the rest of the productions requested were important to further adjust the file.
7At the case conference, and in the CCRO, the Tribunal ordered that the applicant produce the following documents to the respondent as they pertain to the relevant issues in dispute:
i. Prescription summary from 3 years pre-accident to date;
ii. A copy of the applicant’s family doctor's clinical notes and records, Dr. Jennica Platt 1 year pre-accident to present;
iii. Clinical notes and records from Dr. Hong, Feb 22, 2023, and confirmation of attendance;
iv. Clinical notes and records from any counsellors the applicant is seeing at Seneca College from the date of the motor vehicle accident to date and ongoing;
v. Hospital records of the hospital applicant attended on the day of the accident, including a copy of the ambulance call report, if any;
vi. Decoded OHIP summary from 1 year pre-accident to present, and ongoing;
vii. Particulars of any medical collateral benefits available, and copies of the policies, and a printout of payments made since the accident;
viii. Any and all other hospital records, treating physician’s notes, treatment facility records and/or medical reports in which you intend to rely on in support of the applicant’s claims for accident benefits; and
ix. Any applicable WSIB, CPP, El, ODSP/Ontario Works file(s).
8The respondent submits that the applicant failed to produce the totality of the documents ordered to be produced and that the applicant has a duty to abide by Tribunal orders. The respondent further submits that such documents must be accessible to them as a matter of procedural fairness so they can review and respond to relevant records and the failure of providing the documents requested resulted in a failure to receive meaningful evidence to support the claim. They did not receive a reason for non-compliance.
9Since the onus is on the applicant to prove entitlement, the respondent submits that the failure to comply with the Order results in a lack of evidence to justify the disputed entitlements.
10In its reply submissions, the applicant states that it has provided all documents it was able to obtain, and disagreed with the Order, making the same arguments as at the case conference. The applicant states that the respondent made requests that were not relevant, and that the applicant has provided sufficient evidence.
11I find that the applicant did not comply with the Order for productions. The applicant did not provide any evidence of efforts made to obtain the documents ordered and again argued that they were not relevant, challenging the Order.
12The Tribunal can grant remedies for non-compliance, such as attaching diminished weight to evidence or drawing adverse inferences from a party’s failure to produce records.
13I have considered the non-compliance in my decision and reasons in this matter.
ANALYSIS
The Minor Injury Guideline (“MIG”)
14Section 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.”
15An 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 determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
16The 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 should be removed from the MIG due to her pre-accident condition, the impact of her psychological impairments and the enduring nature of her chronic pain condition.
17The respondent argues that the applicant should not be removed from the MIG, as she has not substantiated that any pre-existing injury or condition precludes her recovery within the MIG, nor that her pre-existing conditions were aggravated or impacted by the accident. Regarding her removal from the MIG for psychological reasons, the respondent argues that there are too many inconsistencies in reporting and that she has failed to demonstrate a psychological impairment, and similarly she has not proven the existence of a chronic pain impairment.
The applicant is not removed from the MIG on the basis of a pre-existing condition
18I find that the applicant has not demonstrated, on a balance of probabilities, that she has a pre-existing condition that would prevent maximal recovery under the MIG.
19The applicant submits that she should be removed from the MIG based on her pre-existing health condition of back pain that is mentioned in post-accident reports.
20The applicant argues that there is no legislation or law suggesting that a pre-existing medical condition must be documented by a health professional. I disagree with this position. As set out above, section 18(2) explicitly requires that the applicant’s “health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury” if the applicant is subject to the MIG limits.
21The respondent acknowledges the mention of back, next and shoulder pain in the applicant’s family doctor’s, Dr. Fong’s, notes and records but argues those are consistent with her pre-accident request for surgery related to back pain made one month prior to the accident, and that the post-accident back pain can also relate to the fact that the applicant became pregnant very shortly after the accident.
22The applicant has not pointed me to compelling documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG as per Section 18(2) of the Schedule, possibly due in part to the non-compliance with the production of substantive pre-accident medical documents requested by the respondent. I agree with the respondent’s position that the existence of a pre-existing condition alone is insufficient to remove someone from the MIG and that the applicant did not adduce compelling evidence that she has a pre-existing condition that precludes recovery if kept within the MIG, especially as pre-accident medical information was substantially and significantly lacking.
The applicant is not removed from the MIG on the basis of a chronic pain condition
23I find that the applicant has not established that she suffers from chronic pain with a functional impairment as a result of the accident. I find that her physical injuries are predominantly minor as defined in the Schedule. Thus, she remains within the MIG.
24I am not persuaded by the applicant’s submissions that accident-related injuries to her neck, shoulders, back, and legs progressed to chronic pain.
25The applicant relies on an orthopedic report by Dr. Ogilvie-Harris dated July 2022 based on a telephone assessment stating that she has features of chronic pain syndrome, that she meets the criteria in the American Medical Association “AMA” Guides and that her injuries cannot be treated within the MIG as she has gone to develop a complex situation. The respondent suggests that the applicant failed to mention her neck, back and shoulder pre-existing pain to this Dr. Ogilvie-Harris. While Dr. Ogilvie-Harris indicated in her report that the applicant has “features of chronic pain”, she has not convinced me how the patient meets the AMA criteria necessary for the diagnosis. Specifically, the applicant was not taking medication due to being pregnant and appeared to carry on activities of daily living and stopped working in order to go to school.
26The respondent relies on in-person s. 44 assessments conducted with the applicant. The February 1, 2022 report of Dr. Manhas, GP, indicated the applicant took two and a half days off work but then went back to work full-time and that he found no limitations in his physical examination. Also, the in-person occupational therapy assessment, performed by Mr. Phillips on January 26, 2022 when the applicant was 5 months pregnant, concluded that she did not demonstrate any objective functional impairment. The applicant submits it is unfair that assessments took place before she gave birth. While the applicant suggests I place no weight on Dr. Manhas’ reports since it was originally in relation to non-earner benefits, I place significant weight on both these reports, as their conclusions align with a preponderance of the objective medical evidence before me relating to the extent of the injuries. In terms of the timing of Mr. Phillips’ assessment, I do not agree with the applicant that no weight should be accorded to a report done when the applicant was pregnant, especially when she also argues that the s. 25 psychological report done four months post-partum should be accorded its full weight. The absence of convincing evidence in these two s. 44 reports to demonstrate a physical impairment is significant.
27I agree with the respondent that the apparent lack of referrals to specialists by the applicant’s family doctor regarding the accident is another factor demonstrating that the applicant suffered minor injuries. The evidence led to support the removal of the applicant from the limits of the MIG is predominantly an assessment conducted over the phone which is not as compelling as other evidence presented based on in-person assessments or even by videoconference, especially for a chronic pain diagnosis.
28Also, I agree with the respondent that the applicant’s injuries do not appear to be interfering with her activities of daily living as she continued to work, then pursue full-time nursing studies and care for a baby. The totality of the evidence does not support the chronic pain condition with a functional impairment.
The applicant is not removed from the MIG on the basis of a psychological impairment
29To be removed from the MIG due to a psychological impairment, the applicant must show that she has a psychological impairment that is not sequelae of a minor injury as defined in s. 3 of the Schedule. I find that the applicant has not provided me with persuasive evidence to demonstrate that she has a psychological impairment that warrants her removal from the MIG.
30The applicant points to Dr. Fong’s clinical notes and records that start discussing sleep issues and difficulty with focus in November, 2021 and anxiety from October, 2022 to July 2023. The respondent notes that except for the day after the accident, Dr. Fong’s notes do not specify the type or cause of anxiety, except one mention of school stress. I agree with the respondent that considering the applicant was pregnant, then in full-time studies with a newborn, the doctor’s notes relating to psychological symptoms do not establish on a balance of probabilities that there was a psychological impairment as a result of the accident.
31The applicant also refers to a psychological report completed by Dr. Pilowsky and Dr. Sagrati dated September 21, 2022 diagnosing her with major depressive disorder based on the DSM-5 criteria, moderate anxiety, post-traumatic stress disorder and vehicular phobia, including the position that her injuries fall beyond the MIG limits. The respondent notes that this assessment was done over Zoom merely 4 weeks after the birth of her baby and that it included contradictory positions as the applicant told other assessors that she had been continuing to drive, denied crying spells and described fewer flashbacks. I agree that such responses were somewhat inconsistent with some of the other evidence in their intensity, but the timing of each assessment can also impact the applicant’s state at the time. I am also especially concerned by the lack of pre-existing records used for this assessment from a physical and psychological basis, the lack of mention of previous neck and back pain and the lack of focus on the timing of the report.
32On the other hand, the s.44 psychological assessment by Dr. Syed was conducted in person 3 months after the accident, outlines that the psychometric testing did not reveal any significant impairments and none that would warrant a diagnosis as per the DMS-5 as a result of the accident. During the assessment, the applicant complained about being very tired, and that her drive there was “not bad”. No pre-accident records were provided to Dr. Syed and the applicant denied suffering from any pre-accident medical complication or pain. The applicant argues that the Dr. Syed “fails to remove the applicant from the MIG as she ignored the fact that psychological complaints alone are not covered within the definition of the MIG”. I find that the applicant is not applying the correct test as psychological complaints alone do not remove an individual from the MIG.
33Also, with conflicting assessment reports, especially at significantly different times, I accord significant weight to the family doctor’s records as the applicant did see him consistently. Dr. Fong’s notes fail to convince me that the applicant suffers from a psychological impairment linked to the accident because of the minimal mention of any psychological concerns, none of which were in reference to the accident (except for the day after the accident) and no referrals made to a psychologist. I also find that the lack of pre-accident medical information and of the lack of notes from the counsellor seen by the applicant at her school, that were ordered by the Tribunal and not produced, is significant as they could paint a different picture. For these reasons, I find that there is insufficient evidence to conclude that the applicant should be removed from the MIG based on her psychological condition.
The applicant is not entitled to the treatment plans in dispute
34I have determined that the applicant sustained predominantly minor injuries as a result of the accident, and the parties have agreed that the $3,500.00 limit of the MIG has been exhausted. Therefore, the applicant is not entitled to the treatment plans in dispute.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, it follows that no interest applies under s. 51.
ORDER
36For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment plans within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to the disputed treatment plans.
iii. The applicant is not entitled to interest.
37The application is dismissed.
Released: October 22, 2024
Geneviève Painchaud
Vice-Chair