Licence Appeal Tribunal File Number: 22-004401/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:
Caleb Foxen
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Haider Bahadur, Counsel
For the Respondent:
Laura Bassett, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Caleb Foxen, the applicant, was involved in an automobile accident on November 23, 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, Aviva Insurance Canada, 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 limit?
ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Imperial Medical Assessments in a treatment plan/OCF-18 (“plan”) submitted March 21, 2020 and denied April 2, 2020?
iii. Is the applicant entitled to $282.50 for psychological services, proposed by Imperial Medical Assessments in a plan submitted March 21, 2020 and denied April 2, 2020?
iv. Is the applicant entitled to $4.018.55 for physiotherapy services, proposed by Newmarket Health and Wellness Center Inc. in a plan submitted June 22, 2020 and denied July 6, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant failed to prove that his injuries are not minor and could not be treated within the Minor Injury Guideline (“MIG”) limit.
4Since the applicant’s injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the MIG are not reasonable and necessary.
5Since no treatment plans are payable, no interest is payable.
PROCEDURAL ISSUES
6The applicant filed a Notice of Motion on September 27, 2023 seeking that the Tribunal strike the entirety of the respondent’s submission since the respondent filed a response of 15 pages, exceeding the ordered page limit of 10 pages.
7Under Rule 15.2 of the License Appeal Tribunal Rules (the “Rules”), the Tribunal may order to have a motion heard at a scheduled event. On September 29, 2023, the Tribunal ordered that the motion be heard at the written hearing.
8Under Rule 9.3, if a party fails to comply with any an order with respect to document submissions, that party requires the permission of the Tribunal to rely on the document. At the same time, under Rule 3.1, the Tribunal will interpret the Rules liberally to facilitate a fair, open and accessible process and to allow effective participation by all parties. It is under Rule 9.3 and Rule 3.1 that I hear the current motion.
9A case conference for this matter was held on January 5, 2023 before Adjudicator Richard Warr. The Case Conference Report and Order (“CCRO”) of February 14, 2023 indicates that the parties consented to a written hearing with a page limit of 10 pages, exclusive of evidence and case law, with applicant and respondent submissions due 30 days and 14 days, respectively, before the scheduled hearing date. Applicant reply submissions would be due 7 days before the scheduled hearing date and would be limited to 5 pages.
10The Tribunal issued a Notice of Written Hearing on March 16, 2023 that indicated that the written hearing would be held on September 29, 2023.
11The applicant filed submissions, 10 pages long, on August 31, 2023, in compliance with the 30-day submission deadline.
12The respondent filed submissions, 15 pages long, on September 15, 2023. The respondent’s submissions complied with the 14-day deadline but exceeded the 10-page limit.
13The applicant notified the respondent, via email, that he would be filing a Notice of Motion regarding the length of the respondent’s submissions on Friday, September 22, 2023 at 3:31 p.m. After receiving the notification, the respondent served amended submissions of 10 pages at 4:34 p.m. that same day. The applicant served his reply submissions at 11:54 p.m. that evening.
14The applicant argues in his Notice of Motion that it would be prejudicial to the applicant to formulate a 5-page applicant response to the 15-page respondent submissions, and then to re-formulate a response to the amended 10-page respondent submission. The applicant asks that, rather than strike pages that exceed the page limit, the Tribunal strike the entire respondent submissions.
15The respondent argues that its amended 10-page submissions are substantially the same arguments as the 15-page version, with less blank space and no new evidence. It acknowledges that it exceeded the page length ordered in the CCRO, but it argues that it did so from inadvertence rather than from bad faith.
16The respondent argues that the applicant’s reply submissions are 7 pages long so are also in breach of the CCRO. The respondent argues further that the applicant’s reply submissions, by being filed at 11:53 p.m., are filed after the 5:00 deadline required under Rule 6.2 of the Rules and were therefore technically filed late.
17I find that the respondent exceeded the page limit ordered in the CCRO but that this did not prejudice the applicant’s ability to formulate reply submissions in any material way, since they would be replying to less content, not more, and no new evidence was submitted.
18I find that the applicant exceeded the 5-page limit for his reply submissions but that this did not prejudice the respondent in any material way since the last two pages were primarily a summary of the arguments in the previous pages.
19I find that the applicant filed his reply submissions late under a technical interpretation of Rule 6.2 but that is understandable given the respondent’s late filing of its amended submissions.
20Under Rule 3.1, to allow effective participation of the parties, I permit the respondent’s amended 10-page submissions and the applicant’s 7-page reply submissions to stand. I will not consider the respondent’s original 15-page submissions.
ANALYSIS
The applicant’s psychological injuries do not place him outside of the MIG
21The applicant did not provide objective medical evidence that the psychological injuries he suffered in the accident were non-minor, nor that he had pre-existing psychological conditions that were exacerbated by the accident such that he required treatment outside of the MIG to recover.
22Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”
23An 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 if they are kept within the confines of the MIG. The Tribunal has also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
24On March 21, 2020, approximately four months post-accident, two treatment plans/OCF-18s for psychological services were submitted by Dr. Eugene Hewchuk, psychologist, of Imperial Medical Assessments Inc. on behalf of the applicant. The first, issue (ii), is for a psychological assessment and the second, issue (iii), is for a psychological pre-screening.
25The applicant submits that Dr. Hewchuk identifies, from the comments in the OCF-18 for a pre-screening, the following psychological symptoms: driving anxiety at intersections, intermittent sleep, flashbacks, fatigue, mood changes, depression, irritability and generalized anxiety. Dr. Hewchuk notes that the applicant’s mental heath prior to the accident was good. Dr. Hewchuk provides a provisional diagnosis that indicates that the applicant suffers from an adjustment disorder.
26The pre-screening comments conclude that a psychological assessment was necessary because “a psychological evaluation will provide specific recommendations for required psychological support.”
27The applicant submitted an additional OCF-18 from Dr. Sommayeh Sabet Ghadam, psychologist, on September 1, 2020, that contained a 13-page “psychological assessment report” regarding the applicant’s post-accident psychological injuries. (This OCF-18 is not in dispute before the Tribunal.) Dr. Ghadam’s report provides the following diagnoses: post-traumatic stress disorder with ongoing specific phobia (situational type: driver and passenger), major depressive disorder and somatic symptoms disorder. Dr. Ghadam opines that the applicant’s injuries cannot be considered “minor” as defined by the Schedule with respect to psycho-social issues.
28The applicant submits that the respondent has failed in its obligations under s. 38(8) of the Schedule to provide sufficient and timely reasons for its denials of the psychological OCF-18s. The applicant submits that the respondent, in its initial denial of the OCF-18s on April 2, 2020, only provided the reason that the health practitioner has had not provided compelling evidence that the impairment sustained was not a minor injury. The applicant submits that the respondent only requisitioned an insurer’s examination (“IE”) on June 5, 2020, more than two months after the initial denial. The applicant argues that the delay imposed by the IE undermines the consumer protection purpose of the Schedule by delaying the applicant’s access to treatment.
29In both his initial and reply submissions, the applicant argues that the respondent’s denials were inconsistent with s. 38(8) of the Schedule, and that the request for an IE was unreasonable and “improperly requisitioned.” The applicant argues that the respondent had no evidentiary basis for requisitioning the IE, and that any evidence from the IE should be ignored by the Tribunal, citing 17-003774/AABS v. Aviva Canada Inc (2018 CanLII 84051 ON LAT).
30The respondent submits that there are no psychological or emotional complaints within any of the clinical notes and records (“CNRs”) of the applicant’s walk-in clinic physician, Dr. Gboyega Famodimu, on nine visits between December 6, 2019 and May 21, 2021. The respondent submits further that the psychological injuries, if they exist, have not resulted in any objective functional impairment since the applicant returned to work shortly after the accident.
31The respondent submits further that the psychological assessment completed by Sarvin Sabet Ghadam, psychological associate, and Dr. Sommayeh Sabet Ghadam, psychologist, should be given little weight since it did not include a review of the applicant’s medical documentation with corroboration of the reported symptoms. The respondent submits that Dr. Ghadam did not conduct any validity testing of the psychometric test results and that Dr. Ghadam relies on the applicant’s self-reports regarding functional limitations.
32The respondent relies on the opinion of its IE assessor, Dr. Alfonso Marino, psychologist, who opines in his report of October 9, 2020 that the applicant does not present with any psychological impairment or diagnoses. The respondent submits that Dr. Marino conducted a review of the applicant’s medical history and performed validity testing. The respondent submits as evidence Dr. Marino’s notes, indicating that the applicant stated that he had no interest in psychological treatment and that he had no psychological issues at the time of the IE. Specifically, Dr. Marino indicates that the applicant stated that he was unaware that the treatment plans were submitted on his behalf and that at no point did he recall ever meeting with a psychologist.
33The respondent argues that its denials of the psychological treatment plans were in compliance with s. 38(8) of the Schedule. The initial denial was provided on April 2, 2020, within 10 business days as required by the Schedule, with an indication that the applicant would be required to attend an IE as permitted under s. 44 of the Schedule. On June 5, 2020, the respondent sent a notice for an in-person psychological IE to occur on July 2, 2020, which was subsequently re-scheduled for September 30, 2020.
34The respondent counters that 17-003774 v Aviva Canada Inc. is not relevant here, since in that case the applicant refused to attend an IE before commencing an application. The respondent argues that in this case the applicant never took issue with the request to attend the IE. The respondent argues that the IE was properly requisitioned under s. 44 of the Schedule.
35I find that the applicant has not met the burden of proving that he suffered a psychological injury as a result of the accident that could not be treated within the MIG. I am persuaded by the respondent’s arguments that the applicant himself indicated that he did not wish to obtain any psychological treatment. I find the IE conducted by Dr. Marino persuasive in that it included an examination of the applicant’s medical history and his treating physician’s CNRs, along with validity testing to formulate his opinions. I find Dr. Marino’s opinion consistent with the medical records of the applicant as well as with the applicant’s statement that he did not seek any psychological treatment.
36I find that the respondent provided proper notification of its denials in accordance with s. 38(8) of the Schedule. The original denial of the psychological OCF-18s indicated that the respondent did not have sufficient information to approve the plans, along with the request for an IE. Both the timing and the content of this denial are in line with the requirements of s. 38(8) of the Schedule. The subsequent confirmation of the original denial also conforms to the requirements of s. 38(8).
37I find that the respondent’s request for an IE is consistent with s. 44 of the Schedule, which states that for the purposes of assisting an insurer to determine if an insured person is entitled to a benefit for which an application is made, an insurer may require an insured person to be examined by a regulated health professional.
38For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related psychological injuries that could not be treated within the MIG and that the respondent’s denials of these treatment plans are compliant with the requirements of s. 38(8) and s. 44 of the Schedule.
The applicant’s physical injuries do not place him outside of the MIG
39The applicant did not provide objective medical evidence that the physical injuries he suffered in the accident were non-minor such that he required treatment outside of the MIG to recover.
40As stated previously, an 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 if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
41The applicant submits that his physical injuries require treatment beyond the confines of the MIG limit to recover. The applicant submits that the Disability Certificate/OCF-3 submitted by Dr. Alan Silverman, chiropractor, on December 5, 2019 indicates that the applicant suffered “a complete inability to carry on a normal life” and that his “task/activity limitation are likely to persist beyond 12 weeks.” The applicant submits further that the OCF-18 submitted by Farhankhan Pathan, physiotherapist, on June 22, 2020, indicates that the applicant’s injuries were not “predominantly a minor injury as referred to in the MIG” and that the MIG is “not applicable to the accident.” The OCF-18 submitted by Mr. Farhankhan recommended physiotherapy, chiropractic and acupuncture treatments with assistive devices and Omega 3.
42The applicant submits that the respondent has an obligation to consider the certified medical evidence provided by way of the OCF-3 and OCF-18 and to expressly rebut the findings if it is to deny the treatment plans. The applicant argues that the respondent failed to provide proper notice according to s. 38(8) of the Schedule and is therefore prohibited from insisting on the applicability of the MIG limit. The applicant requests that the Tribunal apply the remedies in s. 38(11) and that the OCF-18 for physical therapy services and devices be paid in full.
43The respondent submits the applicant’s injuries fall within the Schedule’s definition of a “minor” injury. The respondent points to the CNRs of Dr. Famodimu that indicate that on December 6, 2019, approximately two weeks post-accident, the applicant was diagnosed with muscular aches and pains and was cleared to work at his job as a machine operator. At that time, he was not prescribed any medication or referred to any diagnostic imaging or specialists.
44The respondent submits that the CNRs of Dr. Famodimu indicate that the applicant’s injuries were treated with physiotherapy within the MIG limit as well as a prescription for Naproxen. The respondent argues that the applicant did not rely on the CNRs of Dr. Famodimu in any of his submissions. The respondent also asks the Tribunal to draw an adverse inference against the applicant due to his failure to produce the CNRs of Newmarket Health and Wellness Center Inc. The respondent argues, citing Dowell v. Millington (2016 ONSC 6671) that the applicant’s failure to produce physical treatment CNRs, in support of further physical treatment, should lead the Tribunal to infer that the evidence in those CNRs would have been favourable to the respondent’s case.
45The respondent relies on the IE conducted by Dr. Jacqueline Auguste, orthopaedic surgeon, on August 20, 2020. In her report, Dr. Auguste found “no substantive musculoligamentous, osseous or neurologic impairments on clinical testing today from an orthopaedic perspective and no compelling clinical evidence of any residual accident-related exacerbation of pre-existing conditions.” In her report dated August 27, 2020, Dr. Auguste opined that the applicant’s injuries fell within the MIG and that the proposed treatment plan for physiotherapy, chiropractic and acupuncture treatments with assistive devices and Omega 3 was not reasonable and necessary.
46The respondent argues that the applicant has not submitted any medical evidence beyond the OCF-3 and the OCF-18 to support the assertion that treatment beyond the MIG limit was necessary.
47The respondent submits that its denials were in compliance with s. 38(8). The OCF-18 for physiotherapy, chiropractic and acupuncture treatment was submitted on June 22, 2020 and was denied on July 6, 2020. On July 8, 2020, the respondent advised the applicant that he had been scheduled for an IE to assess whether the applicant’s injuries fell within the MIG. The IE was scheduled and completed on August 20, 2020. I agree with the respondent that it is not prohibited from taking a position that the MIG applies and that its notices, both in their content and their time frames, are compliant with s. 38(8) of the Schedule.
48I decline to draw an adverse inference regarding the lack of CNRs from the Newmarket Health and Wellness Center Inc. I note that the clinic submitted a follow-up OCF-18 with its opinions regarding the applicant’s need for further physical treatment.
49I am persuaded by the opinion of Dr. Auguste that the applicant’s injuries fall within the Schedule’s definition of a minor injury. Dr. Auguste’s assessment is consistent with the CNRs of Dr. Famodimu. In a subsequent paper review conducted by Dr. Auguste on January 12, 2021, she reviewed the applicant’s CNRs, diagnostic imaging and hospital records and maintained her opinion that the applicant’s injuries fell within the Schedule’s definition of a minor injury.
50I find that the applicant has not met his burden of providing medical evidence that his condition precludes recovery if he is kept within the confines of the MIG. In particular, I find that the applicant has not provided corroborating medical evidence from his treating physician that he requires treatment outside of the MIG limit.
51For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related physical injuries, nor exacerbation of pre-existing physical impairments, that could not be treated within the MIG.
The applicant is not entitled to the funding for the proposed treatment plans
52To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
53On all three of the plans in dispute, the applicant indicated that his impairments are not minor and sought treatment outside of the MIG.
54Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary. I note that the MIG limits have been exhausted, so further analysis is not required.
Interest is not payable
55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.
ORDER
56The applicant has not demonstrated that his injuries cannot be treated within the limits set by the MIG.
57The proposed treatment plans are not payable since they propose treatment outside of the MIG.
58Since no benefits are payable, no interest is payable.
Released: January 5, 2024
Bernard Trottier
Adjudicator