Citation: Sharma v. CUMIS General Insurance Company, 2024 ONLAT 21-008290/AABS

Licence Appeal Tribunal File Number: 21-008290/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:

Kamakshi Sharma

Applicant

and

CUMIS General Insurance Company

Respondent

DECISION

VICE-CHAIR: Geneviève Painchaud

APPEARANCES:

For the Applicant: Kamakshi Sharma, Applicant Robert Lamot, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By way of written submissions

1Kamakshi Sharma, the applicant, was involved in an automobile accident on November 15, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, CUMIS 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?

ii. Is the applicant entitled to a medical benefit in the amount of $1,995.50 for physiotherapy services, proposed by We Care Rehab Clinic in a treatment plan/OCF-18 (“plan”) submitted November 18, 2019 and denied on November 22, 2019?

iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. Is the respondent liable to pay costs to the applicant?

RESULT

3Based on the totality of the evidence before me, I find:

i. The applicant has demonstrated that she suffers from a chronic pain condition that warrants removal from the MIG.

ii. The applicant is entitled to the disputed treatment plan.

iii. The applicant is entitled to interest on overdue payment of benefits as required by section 51 of the Schedule.

iv. The applicant is not entitled to an award nor costs.

PROCEDURAL ISSUES

4The applicant’s evidence from Dr. Mazengia is admitted into evidence, but its late disclosure will be considered when determining the weight it will be given.

5Dr. Mazengia is the applicant’s new family doctor. The respondent requests that Dr. Mazengia’s notes not be considered as they were not provided to the respondent prior to the final production deadline of March 22, 2023. The consultation notes in issue from this doctor are dated June 2023 and generated August 10, 2023. They were not provided to the respondent prior to the applicant filing their submissions on August 31, 2023.

6The applicant did not make any submissions regarding the timing of this evidence and why I should consider it as it missed production deadlines.

7The case conference ordered that by no later than 120 calendar days after the case conference (March 22, 2023), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.

8Since these documents did not exist on March 22, 2023, the applicant could not have produced them, nor could they have known they intended to rely on them. On the other hand, the fact that they only produced them to the respondent with their submissions could have prejudiced the respondent who only had 14 days to respond to those to abide by their deadline for submissions of September 14, 2023. If the applicant had intended to use new documents after the production deadlines, they should have produced them at the earliest opportunity which I find they failed to do.

9The respondent did nevertheless address the substance of the late-filed evidence. I will take the evidence and submissions into account but determine the weight to accord to them which will be addressed below.

ANALYSIS

The applicant is removed from the MIG

10The applicant was denied a treatment plan on the basis that she sustained predominantly minor injuries that are treatable within the MIG and that the treatment plans were not reasonable or necessary.

11The respondent submits that she suffers from chronic pain syndrome that warrants removal from the MIG.

12Section 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.” The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

13The applicant bears the onus of establishing, on a balance of probabilities, her entitlement to coverage beyond the $3,500.00 cap for minor injuries.

14The applicant submits that, as a result of the accident, she suffers from severe injuries to her neck, shoulders, upper back, mid back, and lower back, that she has decreased energy and suffers from anxiety and nervousness and that her chronic pain condition warrant her removal from the MIG. She relies on the following:

i. St-Joseph’s Healthcare Hamilton records dated November 16, 2015;

ii. Clinical notes and records (“CNRs”) of her family physician Dr. Jordan Wronzberg between March and November 2015, in February 2019 and in March 2020;

iii. CNRs of her other family physician Dr. Saadia Tahir in 2016, 2017, 2018 and 2019;

iv. A lumbar spine MRI dated November 4, 2019;

v. A consultation report dated December 11, 2019 by Dr. Arthur Lau, a specialist in rheumatology;

vi. CNRs of Angela Marmsman, physiotherapist that are undated but post-accident,

vii. A Chronic Pain Medical Assessment Report by Dr. Mark Friedlander, MBChB, FRCPC dated December 2, 2020, and

viii. CNRs of Dr. Getachew Mazengia, family physician of June 6, 2023.

15The respondent relies on the same evidence produced by the applicant.

The applicant’s injuries are considered minor as defined under the Schedule subject to the allegation regarding chronic pain

16I find that the applicant's injuries are within the definition of "minor injury" set out in s. 3(1) of the Schedule subject to the determination of whether the applicant has sustained chronic pain which removes her from the MIG.

17Both parties agree that the applicant sustained strains, sprains and other injuries that fall within the Schedule's definition of "minor injury". However, they do not agree on the chronicity of her injuries and, therefore, do not agree whether the applicant should remain within the MIG or be removed from it.

18The applicant submits that the day after the accident, November 16, 2015, her symptoms persisted so she went to the hospital and was referred to her family doctor who she saw the following day. Dr. Wronzberg noted that the applicant had banged her head against the window, had jaw pain, which was improving, and that she was told she had musculoskeletal injury at the hospital. One week later, at a follow-up visit the applicant stated she had intermittent back pain and wanted to do physiotherapy. The respondent concurs that the applicant consulted Dr. Wronzberg and was diagnosed with a neck sprain and that later complained of back pain. I find that these injuries fall within the MIG.

19The applicant also submits that in the approximately 4 years leading up to the disputed treatment plan, the CNRs of her other family physician, Dr. Tahir, demonstrated she complained of lower back pain, headaches, insomnia, irritability, and stress. In response, the respondent submits that in 2016 and 2017, the applicant was diagnosed with musculoskeletal back pain, that can be linked to a lack of exercise and situational stress that, in turn, appear to be linked to the home situation, yet she did not seek psychological assistance. While I find that the psychological issues appear to be unrelated to the accident based on the CNRs, the suggestion that the applicant should exercise more was an overall recommendation for her health. I find that these accident-related issues also fall within the MIG.

20The applicant also relies on CNRs of a third family physician family physician, Dr. Getachew Mazengia who she saw in June 2023. He notes lower back pain because of the accident and pain radiating down both legs and referred her to an orthopaedic surgeon. As mentioned earlier, the respondent requests that I do not consider these due to the late filing. I did review the documents and find these are duplicative of notes of other physicians and therefore I did find the respondent was not prejudiced. Due to their limited content and their duplicative nature, they do not alter my decision that these injuries fall within the MIG.

The applicant suffers from chronic pain syndrome that removes her from the MIG

21I find that the applicant has satisfied her onus that she has chronic pain syndrome as a result of the accident, thereby removing her from the MIG limits.

22The applicant relies on a November 2019 MRI which concluded the applicant had lumbar scoliosis, “L4-L5 right paramedian extruded disc herniation with significant thecal sac and mild L4 nerve root compression. L5-S1 diffuse mild disc bulge.” There is also a consultation report of Dr. Arthur Lau, specialist in rheumatology, dated December 2019. It noted the applicant’s MRI results and that she also had numbness radiating down her left leg and had difficulty sleeping as a result of the pain. He recommended a referral to spine surgeon for surgical consideration. No further reports from such referral were provided to me. The respondent submits that the applicant’s back issues from 2019 to current have to do with her being diagnosed with scoliosis, as stated by Doctor Lau. There is insufficient evidence for me to determine from the conclusion of this report that the pain is related or unrelated to the accident and prefer the evidence of Dr. Friedlander who used the information from these reports to come to his overall conclusions.

23The applicant submits that the chronic pain medical assessment report by Dr. Mark Friedlander, chronic pain specialist, dated December 2, 2020, concludes that the applicant suffers from chronic pain syndrome and specifically has:

i. Lumbar vertebral column sprain/strain causing chronic posttraumatic lumbar mechanical and myofascial (muscle and soft tissue) pain and nerve root irritation symptoms;

ii. Cervical vertebral column sprain/strain causing chronic post traumatic musculoskeletal neck and shoulder blade pain;

iii. Chronic post traumatic headache;

iv. Possible psychological impairment;

v. Sleep disorder associated with chronic pain;

vi. Possible temporomandibular joint disturbance; and

vii. Chronic pain syndrome.

24Dr. Friedlander’s report discusses a causal relationship between the chronic pain and the accident as follows: “But for the accident in question, the clinical course of Ms. Sharma’s injuries and resultant physical and possible psychological impairments would not have been as described. I do not believe there was anything in Ms. Sharma’s pre-accident history that contributed to making her vulnerable to the injuries sustained in this accident. There were no preexisting conditions that contributed to Ms. Sharma’s chronic pain condition.”

25While the respondent points to the fact that this assessment was performed virtually when it could have been done in person, based on the fact this was conducted in December 2020, in the middle of the pandemic, I accept the virtual visit was appropriate.

26The respondent also submits that the report is at odds with the rest of the medical evidence as there is no evidence of a link between the back pain and the accident, but rather that the scoliosis condition can be blamed for such pain. I agree that the report does mention more severity to some symptoms compared to what was previously raised in the records of the doctors involved in the applicant’s care. On the other hand, I find that Dr. Friedlander also reviewed the applicant’s medical records and makes mention of them. He also concludes there was a causal relationship between the accident and the chronic pain. The respondent has presented no medical opinion that supports its allegation that the medical evidence indicates that the applicant’s ongoing pain complaints were the result of her scoliosis or that Dr. Friedlander’s assessment is incorrect. I have no medical report that contradicts the conclusion of chronic pain syndrome caused by the accident made by Dr. Friedlander and therefore accept his diagnosis.

27The respondent further argues that in 2018 the applicant advised her family doctor that she was doing well academically and that her back pain had fully resolved. The applicant notes that she later recanted this and stated that it was a mistake and that she said that because she was tired of the visits to doctors and clinics. I find that this is plausible for her age and circumstances and accept the applicant’s version.

28I find that the applicant's chronic pain syndrome is caused by the accident.

Conclusion

29I find that the applicant has proven on a balance of probabilities that she suffers from chronic pain syndrome warranting removal from the MIG.

The applicant is entitled to physiotherapy services in the amount of $1,995.50

30To 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.

31The physiotherapy services sought in an OCF-18 are described has having a goal of pain reduction and increase in strength in order to return to activities of normal living. While there are barriers to recovery listed, notable the chronicity of the injury, a multi-disciplinary approach to treatment was recommended to overcome these, as well as 18 physiotherapy sessions of 1 hour.

32As I have found the applicant should be removed from the MIG for chronic pain, which is largely back pain, I find that the physiotherapy plan proposed is reasonable and necessary.

The applicant is entitled to interest

33In view of my findings above, the applicant is entitled to interest on overdue payment of benefits as required by section 51 of the Schedule.

The applicant is not entitled to an award under s. 10 of Reg. 664

34In her appeal, the applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed payments of the benefits.

35While I have found that the applicant is out of the MIG and entitled to the treatment plan in dispute, I do not find that the respondent acted unreasonably in its denials. The applicant did not make submissions to substantiate the request for an award.

The applicant is not entitled to costs

36In submissions, the applicant added a request for costs. As Rule 19.2 of the Tribunal’s Common Rules of Practice & Procedure allows a party to make a request for costs in writing or orally at a case conference or hearing at any time before a decision or order is released, I have added it to the list of items in dispute.

37On the other hand, the applicant did not make any submissions relating to costs in terms of quantum or merit. I cannot entertain such a request that has not been properly argued in submissions. Accordingly, the applicant is not entitled to costs.

ORDER

38I find that: