Licence Appeal Tribunal File Number: 21-013444/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:
Basma Yousif
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Rania Hafez, Paralegal
For the Respondent:
Amanda M. Lennox, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Basma Yousif (the “applicant”), was involved in an automobile accident on October 16, 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 Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
Preliminary Issue – non-compliance with Tribunal Order
2I will not exclude the applicant’s initial submissions, nor will I dismiss the application in its entirely on a preliminary basis.
3Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.
4As per the Case Conference Report and Order (“CCRO”), released on December 15, 2022, the parties had agreed on consent that the applicant would produce her evidence by December 27, 2022, and initial submissions by August 2, 2023. The applicant produced her submissions on August 4, 2023, two days after the deadline.
5The respondent also submits that the applicant was requested at the case conference to produce items no. 1 and 3 to 10 as outlined in its case conference summary by December 27, 2022. The respondent’s position is that the applicant has failed to produce these documents by the stipulated deadline or at all.
6The applicant filed no reply submissions in response.
7Consequently, the respondent asks for two remedies. First, the respondent requests that the applicant’s submissions be excluded because they were late filed.
8Second, the respondent argues that the applicant’s claim should be dismissed in its entirely as a result of failing to comply with the deadline for submissions and productions. The respondent also submits that the applicant did not bring a motion to extend the submission and production deadlines.
9The respondent has not directed me to evidence of prejudice that was caused by the late delivery of submissions by the applicant. From my reading of the respondent’s submissions, it was fully able to deal with all of the applicant’s evidence even though it was produced late. I find that the applicant would suffer significant prejudice if her submissions/evidence were excluded for the purposes of this hearing, as the evidentiary onus rests with her to demonstrate entitlement to the benefits in dispute. Lastly, the negligible impact of such contraventions is outweighed by the consumer protection mandate of the Schedule, which is best served by hearing all submissions from applicants whenever reasonable and whenever possible.
10The CCRO, at paragraph 12 indicated that: “The above orders are subject to the hearing adjudicator’s discretion.” There was no indication in the CCRO, that failure to comply would result in dismissal of the application.
11I find that dismissing the application due to late filing would be tremendously prejudicial to the applicant. On the other hand, allowing the late filing and proceeding with the hearing causes minimal prejudice to the respondent. There is also no indication before me that the respondent was unprepared or unable to address the relevant issues in dispute within the reduced period of time.
12As a result, having considered whether it would be in the interests of natural justice to dismiss the application on the basis of the late filing, I find that it would be an unfair result.
13The respondent also requested costs under Rule 19 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”) as a result of the applicant’s late filing and I will address this below.
ISSUES
14The issues in dispute are:
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 limit (“MIG”)?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 19, 2020, to date and ongoing?
Is the applicant entitled to $2,641.62 for aqua therapy treatment, proposed by 2430307 Ontario Ltd – Dr. Paul Bruni in a treatment plan/OCF-18 (“OCF-18”) dated September 21, 2021?
Is the applicant entitled to $2,100.00 for psychological treatment, proposed by 2430307 Ontario Ltd – Dr. Svetlana Gabidulina in an OCF-18 dated June 29, 2021?
Is the applicant entitled to $225.62 for assessment pre-screening, proposed by 2430307 Ontario Ltd – Dr. Paul Bruni in an OCF-18 dated August 24, 2021?
Is the applicant entitled to $1,050.56 for self directed exercise treatment, proposed by 2430307 Ontario Ltd in an OCF-18 dated August 24, 2021?
Is the applicant entitled to $1,293.80 for functional ability evaluation, proposed by 2430307 Ontario Ltd – Dr. Paul Bruni in an OCF-18 dated July 23, 2021?
Is the applicant entitled to $1,950.00 for assessment TMJ treatment, proposed by 2430307 Ontario Ltd in an OCF-18 dated June 24, 2021?
Is the applicant entitled to $2,226.00 for chronic pain treatment, proposed by MediAssess Evaluations Inc., in an OCF-18 dated June 08, 2021?
Is the applicant entitled to $2,974.56 for physiotherapy services, proposed by Medilifecare Inc., in an OCF-18 dated March 02, 2020?
Is the applicant entitled to $1,044.40 for physiotherapy services, proposed by Medilifecare Inc., in an OCF-18 dated February 18, 2020?
Is the applicant entitled to $199.67 ($1,299.67 less $1,100 approved) for physiotherapy services, proposed by Medilifecare Inc., in an OCF-18 dated January 22, 2020?
Is the applicant entitled to $2,825.00 for physiotherapy services, proposed MediAssess Evaluations Inc., in an OCF-18 dated February 18, 2020?
Is the applicant entitled to $983.24 for physiotherapy services, proposed by Medilifecare Inc., in an OCF-18 dated February 18, 2020?
Is the applicant entitled to $225.62 for assessment pre-screening, proposed by 2430307 Ontario Ltd., in an OCF-18 dated September 21, 2021?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the applicant liable to pay $1,000.00 in costs pursuant to Rule 19 of the Rules?
RESULT
15I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted.
The applicant is not entitled to IRB.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
The applicant is not liable to pay costs.
ANALYSIS
The Minor Injury Guideline
16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”
17An 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 they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
18In all cases, the burden of proof lies with the applicant.
19The applicant submits that she should be removed from the MIG due to her chronic pain and psychological impairments.
20The respondent submits that as a result of the accident, the applicant sustained only minor and uncomplicated injuries to her: shoulders, neck and back, and her injuries are classified within the MIG.
The applicant has not established chronic pain warranting removal from the MIG
21I find that the applicant has not met her burden to prove that she suffers from a chronic pain condition, that would warrant removal from the MIG.
22Here, the applicant submits that she has chronic pain which should be assessed against the six criteria described in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“the Guides”). Moreover, the applicant submits that since she has chronic pain, her injuries are not classified within the MIG.
23To this end, the applicant relies on the clinical notes and records of her family physicians, Dr. Kenneth Seaman, Dr. Vishal Modi, clinical notes and records of Dr. T.O. Gyenes, physiatrist, Initial Report of Dr. Paul Bruni, chiropractor, dated June 18, 2021, ultrasound of the left shoulder, and x-ray of the cervical spine, dated January 20, 2020, and MRI of the cervical spine, dated April 17, 2022.
24The respondent submits that the applicant has not produced any evidence that she meets the criteria for a chronic pain diagnosis pursuant to the Guides. The respondent further submits that apart from the applicant’s self-reporting with respect to her limitations, there is no objective evidence that she meets the criteria for a chronic pain diagnosis. To support its position, the respondent relies upon the s. 44 Physiatry Report and Addendum Report of Dr. R.J. Zabieliauskas, physiatrist, dated August 16, 2021, and November 24, 2021.
25A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, 18-002569 v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT). A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae. Unless the applicant provides evidence that the pain she experiences contains these elements, the pain is sequelae of a MIG injury.
26The applicant was diagnosed with chronic pain by Dr. Modi on October 16, 2021. On October 16, 2021, Dr. Modi noted that the applicant had chronic shoulder and neck pain which had been ongoing for over a period of two years. From the time period of 2019 to 2021, the applicant also reported ongoing pain on numerous occasions both to Dr. Seaman and Dr. Modi following the accident.
27However, the applicant has not provided persuasive evidence of a functional impairment or disability as a result of her chronic pain. Aside from one visit on January 5, 2020, where the applicant self-reported that her work continued to exacerbate her injuries and she required a note from Dr. Seaman to this effect, there is no other entry where it was noted that the applicant had functional limitations with her daily activities or work as a result of her chronic pain.
28For example, on October 29, 2019, December 28, 2019, February 23, 2020, and on October 16, 2021, while Dr. Seaman and Dr. Modi noted that the applicant had reduced/painful range of motion in her shoulders, and her lower back, neither opined that the applicant had functional impairments with her daily activities or work as a result.
29Further, aside from recommending rest, range of motion exercises and to avoid straining, neither Dr. Seaman nor Dr. Modi opined that the applicant was unable to do any of her daily activities or work as a result. Moreover, during these visits, the applicant did not self-report to either Dr. Seaman nor Dr. Modi that she was unable to do her daily activities or work as a result of her chronic pain.
30I also place little weight on the entry of Dr. Seaman, dated January 5, 2020, as it is inconsistent with the other evidence. The applicant in her own submissions argued that she stopped working on December 23, 2019, and “has never returned to work.” Meanwhile, in the entry, dated January 5, 2020, it was noted that the applicant continued to work which exacerbated her injuries.
31Thus, if the applicant in her own admission stopped working on December 23, 2019, it is unclear why she would have asked Dr. Seaman to provide her a note on January 5, 2020, that she was unable to work due to her injuries. Moreover, the Record of Employment (“ROE”) demonstrates that the applicant’s last day of employment was December 23, 2019, and the reason was due to shortage of work/end of contract or season.
32In any event, there are no other entries from either Dr. Seaman or Dr. Modi that the applicant is unable to work as a result of her chronic pain.
33Dr. Gyenes also did not opine that the applicant was unable to do any of her daily activities or work as a result of her chronic pain. While I acknowledge that the applicant summarized Dr. Gyenes’s record of August 13, 2020, where Dr. Gyenes recommended that as long as the applicant was symptomatic, to avoid heavy lifting, carrying, strenuous pushing and pulling and flexion/extension of her cervical spine. However, as noted above, no recommendation was made that the applicant was unable to do her daily activities or employment as a result.
34The applicant’s self-reporting to both Dr. Bruni and Dr. Zabieliauskas that she is unable to work, and do her housekeeping tasks, such as cooking and cleaning, is inconsistent with the bulk of the medical evidence. As noted above, aside from one entry, there is no evidence of the applicant self-reporting that she is unable to do her daily activities as a result of pain, nor did Dr. Seaman, Dr. Modi, or Dr. Gyenes opine that the applicant has functional impairments that would make her unable to complete her daily activities or employment.
35I also find that the applicant does not meet the criteria in the Guides. While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
Excessive dependence on health care providers, spouse, or family;
Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
Withdrawal from social milieu, including work, recreation, or other social contacts;
Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
36While I am alive to the applicant’s position that she meets criterion two, four, and five of the Guides, and therefore has chronic pain, I disagree.
37Aside from her self-reporting, the applicant has not referred me to other evidence which supports her position that she is dependant on her son because he does all the cooking and cleaning following the accident. As noted above, Dr. Seaman, Dr. Modi and Dr. Gyenes have not opined that the applicant is unable to do her daily activities as a result of her pain.
38Similarly, aside, from one entry from January of 2020 and the applicant’s self-reporting, there is no evidence that the applicant has withdrawn from work as a result of her pain. The entry from Dr. Seaman, dated January 5, 2020, noted that the applicant would take time off to allow her injuries to heal then be reassessed. At the next visit, dated January 19, 2020, Dr. Seaman’s record was silent with respect to the applicant’s work ability. Thereafter, Dr. Seaman, Dr. Modi and Dr. Gyenes have not opined that the applicant cannot work because of her chronic pain.
39Moreover, as noted above, the ROE noted that the applicant’s occupation ended due to shortage of work/end of contract or season. There is also no evidence that the applicant has withdrawn from her social life, recreational activities, or other social contacts as a result of pain. Likewise, I am not persuaded that the applicant is unable to pursue work because of her pain. I acknowledge the applicant submits that she self-reported to Dr. Modi that she has low back pain, which is worse with movement, and Dr. Modi noted that she has neck pain that radiates down to her lower back. However, as noted above, aside from one entry, the applicant has not referred me to other medical evidence that demonstrates her injuries have affected her ability to work. In conclusion, I am not persuaded that the applicant has been unable to work since December 23, 2019, as a result of her injuries.
40For the sake of completeness, I also note that the applicant summarized the ultrasound of left shoulder, and x-ray cervical spine, dated January 20, 2020, and MRI of the cervical spine, dated April 17, 2022.
41The applicant has not provided submissions or pointed me to evidence that establishes a connection between the tendinopathy in her supraspinatus tendon, multilevel cervical spondylosis, and multilevel degenerative disc and facet disease at the C5-C6 level with the subject accident.
42Indeed, on May 18, 2022, while the applicant self-reported to Dr. Modi that she wants to go on disability, this appears to be due to the results of the MRI of the cervical spine and not the subject accident. Dr. Modi noted in his entry that the MRI was reviewed, however there was no reference to the accident, or whether the results were connected to the accident.
43Considering the above, I find that the applicant has not satisfied her onus to prove, on a balance of probabilities, that her injuries warrant removal from the MIG.
The applicant is not removed from the MIG on the basis of a psychological impairment
44The applicant has failed to prove on a balance of probabilities that she suffers from a psychological impairment that will remove her from the MIG.
45Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that she suffered a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
46The applicant submits that she has psychological issues which affect her daily life and are not merely transient symptoms or a sequela of her accident-related injuries. As such, the applicant submits, her impairments are not within the MIG. To support this position, the applicant relies on her self-reporting to Dr. Bruni and s. 44 assessor, Dr. Randy Silverman, psychologist, in his report dated October 1 and November 11, 2021.
47The respondent relies on the s. 44 report of Dr. Silverman and takes the position that the applicant’s symptoms and complaints do not meet the full DSM-5 diagnostic criteria for a Trauma or Stress-Related Disorder, Depressive Disorder, or Anxiety, and therefore her injuries are classified within the MIG.
48I find that the applicant has not established on a balance of probabilities, that she has an accident-related psychological impairment that would warrant removal from the MIG.
49First, the applicant has not directed me to any entries from Dr. Modi or Dr. Seaman that demonstrate that she complained of psychological symptoms following the accident. Nor did she refer me to entries from Dr. Modi or Dr. Seaman’s records that show she was diagnosed with a psychological impairment, referred for treatment or prescribed any medication for psychological conditions.
50Second, I place no weight on the initial report by Dr. Bruni, as he is a chiropractor, and in my view, diagnosing psychological conditions is outside of the scope of practice of a chiropractor. Thus, I place no weight on Dr. Bruni’s diagnoses of: depressive episode, fatigue, disordered sleep, and nervousness as a result of the accident.
51Lastly, I am persuaded by the s. 44 report of Dr. Silverman. First, Dr. Silverman review of the medical evidence was comprehensive. Second, Dr. Silverman conducted a number of psychometric tests such as: Clinical Assessment of Depression, Pain Patient Profile, Trauma Symptom Inventory, Test of Memory Malingering, and Structured Inventory of Malingered Symptomology. Lastly, Dr. Silverman’s findings are supported by the medical record. His conclusion that the applicant had features of Somatic Symptom Disorder but did not meet a full DSM-5 diagnostic criteria as she did not develop clinically significant psychological distress, is reflected in the records of Dr. Seaman and Dr. Modi, which did not disclose ongoing psychological complaints.
52The applicant has also not referred me to evidence that rebuts Dr. Silverman’s opinion that there is no diagnosable DSM-5 psychological disorder, nor did she make submissions that undermine this diagnosis.
53As such, I find that the applicant has not established accident-related psychological impairments that warrant removal from the MIG.
Conclusion and Treatment Plans
54For the reasons noted above, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment, which has been exhausted. Thus, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
The applicant is not entitled to IRB
55I find that the applicant is not entitled to IRBs for the period in dispute.
56Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)1(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of her employment or self-employment.
57Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.
58The applicant bears the onus of demonstrating on a balance of probabilities that she is entitled to an IRB.
59The applicant submits that she worked as a lead hand in a factory, which made cheese prior to the accident, and that she stopped working on December 23, 2019, and has not returned to work. To support this position, she relies on the records of Dr. Seaman/Dr. Modi.
60The respondent submits that the applicant was employed as a supervisor prior to the accident. Moreover, the respondent submits that the applicant returned to work following the accident and appeared to have only ceased employment on December 23, 2019, upon being laid off due to shortage of work/end of contract or season. Lastly, its position is that the applicant has not provided compelling medical evidence of any physical restrictions or functional limitations that would disable her from working in her pre-accident capacity in her pre-accident employment. Thus, the respondent relies on the ROE, and the s. 44 reports of Dr. Silverman, and Dr. Zabieliauskas.
61Although the applicant has provided a list of the essential tasks of her employment in her submissions, she has not led any evidence to show how her accident-related injuries impair her from completing substantially all of these tasks. It is not sufficient for the applicant to state that she suffers from ongoing pain, or that she has a psychological impairment. Rather, the applicant must adduce sufficient evidence that these impairments render her substantially or completely unable to perform the essential tasks of her employment. I do not find that she has provided sufficient evidence in this regard.
62Aside from one entry from Dr. Seaman’s records, the applicant has not pointed me to any other entry from either Dr. Seaman or Dr. Modi that note any work limitations as a result of pain. Contrary to the applicant’s submissions, she did not attend on December 23, 2019, but rather she attended on January 5, 2020 (which is after her occupation had ended). As noted above, it is unclear why the applicant asked for a note from Dr. Seaman after her last day of employment, and more importantly, she has not produced a copy of the note provided by Dr. Seaman. In any event, Dr. Seaman in his record noted that the applicant would be reassessed again, which as noted above, in a subsequent entry, Dr. Seaman did not provide an opinion with respect to the applicant’s work function, or whether she has any ongoing limitations.
63In addition, the applicant failed to produce a copy of her Employment Insurance File, which would have clarified the ROE, and whether the applicant was laid off or quit as a result of her injuries. Thus, I draw an adverse inference as a result. The applicant was ordered to produce the Employment Insurance File by the Tribunal but failed to do so and provided no explanation. I am left to conclude that the Employment Insurance File was not produced because it is unfavourable to the applicant.
64Finally, I find the s. 44 reports of Dr. Silverman, and Dr. Zabieliauskas to be persuasive. Dr. Silverman concluded that from a psychological perspective, she was not suffering a substantial inability to perform the essential tasks of her pre-accident employment. Also, Dr. Zabieliauskas noted that the applicant refused to move her arms or her lower back in any direction during the virtual examination due to reported pain. Dr. Zabieliauskas diagnosed the applicant with uncomplicated soft tissue injuries and that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.
65Accordingly, the applicant has not established that she is entitled to IRBs.
The applicant is not entitled to interest pursuant to s. 51 of the Schedule
66Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award pursuant to Regulation 664
67The applicant seeks an award and interest under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being simply an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
68As the applicant has been found to have sustained minor injuries and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.
The applicant is not liable to pay costs
69I find that the applicant is not liable to pay costs to the respondent.
70According to the provisions of s. 19 of the Rules, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.
71Here, the respondent requests for $1,000.00 in costs in its written submissions, as the applicant’s submissions were late.
72The applicant provided no reply submissions in response.
73In any event, I find that the respondent has not established that the high threshold for costs is warranted. Moreover, the respondent has not directed me to evidence of prejudice that was caused by this slight delay. As such, I am not persuaded the threshold for costs has been met. Thus, no costs shall be awarded.
ORDER
74For the reasons outlined above, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted.
The applicant is not entitled to IRB.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
The applicant is not liable to pay costs.
The application is dismissed.
Released: February 23, 2024
Tanjoyt Deol
Adjudicator