Licence Appeal Tribunal File Number: 21-015826/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:
Mohammad Nuri
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
VICE-CHAIR:
Geneviève Painchaud
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Murleen McLean, Counsel
HEARD:
In Writing
OVERVIEW
1Mohammad Nuri, the applicant, was involved in an automobile accident on August 20, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was the driver of a vehicle going approximately 40 km/h in stop-and-go traffic when another vehicle cut in front of him and stopped suddenly, causing the applicant to brake suddenly and rear-end the vehicle in front of him.
3The applicant was denied treatment plans and an income replacement benefit on the basis that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (the “MIG”) and that the treatment plans were not reasonable or necessary.
ISSUES
4The 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 the assessments and services proposed by Mediwise Health Care Centre, as follows:
(a) $1,920.53 for a psychological examination, in a treatment plan/OCF-18 (“plan”) submitted on August 31, 2020, and denied on September 15, 2020;
(b) $3,195.84 for chiropractic sessions, in a treatment plan submitted on October 20, 2020, and denied on November 3, 2020;
(c) $3,424.70 for chiropractic sessions, in a treatment plan submitted on November 22, 2019, and denied on December 18, 2019; and
(d) $3,963.64 for psychological sessions, in a treatment plan submitted on October 28, 2020, and denied on November 9, 2020?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
5The issue of income replacement benefits was resolved prior to the hearing.
RESULT
6Based on the totality of the evidence before me, I find:
a. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
b. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of any overdue benefits in accordance with s. 51 of the Schedule.
PROCEDURAL ISSUE
The applicant’s submissions beyond the 10-page limit have not been considered
7The applicant submitted 15 pages of submissions, contrary to the 10-page limit mentioned in the motion order of March 29, 2023 (the “Order”). The respondent asked that I exercise my authority and order that the applicant be held to the 10-page limit, and disregard pages in excess of the limit. The applicant did not respond to this order request in reply submissions.
8A case conference was held on October 25, 2022 and the parties confirmed the issues in dispute and requested a videoconference hearing. On March 29, 2023 the parties requested a change of format to a written hearing which was granted in the Order.
9The Order also directed that the applicant’s and respondent’s submissions be a maximum of 10 pages each with 5 pages for reply. It specified that “the hearing adjudicator may not consider submissions which exceed the page limits”.
10Again, on June 29, 2023, the page limit of submissions was reiterated in another motion order regarding extending the deadline for submissions.
11When the Tribunal ordered these page limits, they included accounting for the issue of income replacement benefits that was resolved prior to the hearing.
12The respondent submits that the applicant has failed to abide by the submission page limits set out in the Order and requests that I should exercise my authority to disregard pages in excess of the page limits, relying on Bonilla-Lopez v. BelairDirect, 2023 CanLII 26940 (ON LAT), where Vice-Chair DiBattista stated:
Submissions for both parties to this dispute were written by counsel licensed by the Law Society of Ontario, who ought to know the risks of disregarding an order issued by the Tribunal.
13This decision explains that a counsel, or a paralegal in this case, understands what an order is and should be aware that there are risks involved in disobeying an order, which I agree with. Orders would be meaningless if they did not have to be followed or if there were never any possible consequences when disregarded.
14As per Rule 3.1 of the LAT Rules, in order to facilitate a fair, proportional and open process, both parties should comply with the page limit for submissions as ordered or otherwise varied by the Tribunal.
15As a 10-page limit was sufficient for the planned hearing, a 10-page limit is more than sufficient for a hearing with fewer issues to cover.
16I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, it falls directly within my discretion to strike any submissions in excess of the 10-page limits laid out in the Order, and that point is also clearly articulated in the Order.
17If the applicant believed that the page limit was insufficient, he could have brought a motion to be granted a higher page limit for his submissions. No such motion was brought nor any consequent order varying the page limits.
18The applicant’s submissions exceeded the allowable limit set out in the Order by 50 percent. The applicant’s representative, a paralegal, is presumed to understand the risk of defying an Order and there is no explanation why I should consider the extra submissions. Given the reasons above, I exercised my discretion to not consider the applicant’s initial submissions beyond the 10-page limit, but chose to consider the extra half page of the reply submissions since the excess was minimal.
ANALYSIS
The applicant remains within the MIG
19I find that the applicant has not met his onus and demonstrated that his accident-related impairments warrant removal from the MIG.
20Section 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.
21Even if the applicant’s injuries fall within the definition of minor injury, he can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. He must meet all three of the following requirements in order to be removed from the MIG under this section:
a. have a pre-existing medical condition;
b. the pre-existing medical condition was documented by a health practitioner before the accident; and
c. the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.
22The applicant bears the onus of establishing, on a balance of probabilities, his entitlement to coverage beyond the $3,500.00 cap for minor injuries.
The applicant does not suffer from a psychological impairment arising from the accident that warrants removal from the MIG
23I find that the applicant has not provided sufficient evidence to demonstrate that he sustained psychological impairments as a result of the accident, which would justify his removal from the MIG.
24An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
25In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
26The applicant submits that he suffered from a psychological impairment as a result of the accident. The applicant relies on the clinical notes and records of his family doctor, Dr. Renee Beland, on a psychological interview/screening and a psychological assessment performed by Dr. Bruce Cook, M.A.,C. Psych Assoc.
27In response, the respondent asserts that the applicant has not produced compelling evidence that any of the injuries sustained in the accident warrant removal from the MIG. The respondent relies on the psychological assessment of Dr. Charlotte Lynn Gooden Ph.D., C. Psych.
28It is undisputed that the applicant did suffer from depression and anxiety prior to the accident, and that he continued to suffer from these after the accident, although this doesn't necessarily indicate that he suffered a psychological injury as a result of the accident itself.
29Based on Dr. Beland, his family doctor’s clinical notes and records (“CNRs”), the applicant went on stress leave approximately 1 month prior to the accident and at that point, Dr. Beland considered his anxiety and depression to be “severe”. In the following visits pre-accident, Dr. Beland indicated the applicant’s sleep was “beyond terrible” and that the depression/anxiety scores worsened.
30I do put significant weight on Dr. Beland’s clinical notes and records as the applicant had multiple appointments with Dr. Beland before and after the accident to which there are extensive CNRs. It is clear that the applicant suffered significant psychological impairments at least in the month prior to the accident as he consulted his family doctor several times during that period. The applicant also saw him frequently following the accidents but did not mention the accident at the five visits in the following two months. At approximately the two-month mark, he told his doctor about the accident and indicated that dealing with insurance made things worse. Besides that, there are barely any mentions of the accident in subsequent visits. The applicant was being seen regularly due to unrelated medical issues.
31The report of Dr. Cook, Psych Assoc., is based on self-reports without having looked at the applicant’s medical records. In the report, he states that the applicant started to experience psychological difficulties shortly after the accident. This is contrary to his family doctor’s clinical notes and records clearly indicating this was a factor pre-accident. His provisional diagnoses were of a Moderate Depressive Episode and General Anxiety Disorder. Dr. Cook also indicates that the applicant’s current symptoms significantly interfere with his full level of pre-accident functioning, although this is inconsistent with Dr. Beland’s CNRs regarding the applicant’s functioning immediately pre-accident. The comparison to a level of functioning must be to the level just prior to the accident and not months or years prior, especially when those are significantly different. I therefore do not put much weight on this report.
32It appears that the applicant’s pre-accident condition from a psychological perspective has been minimized in the assessors’ reports along with a version of his pre-accident activity level immediately before that accident that is inconsistent with Dr. Beland’s notes.
33As a result, I am not satisfied that the applicant has proven that he suffered a psychological impairment as a result of the accident.
The applicant does not suffer from a pre-existing psychological condition that precludes his recovery within the MIG
34I find that the applicant has not satisfied me that he should be removed from the MIG based on a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule.
35The applicant submits that the fact that he suffered a psychological impairment prior to the accident should remove him from the MIG. The applicant relies on the clinical notes and records of his family doctor, Dr. Renee Beland, on a psychological interview/screening and a psychological assessment performed by Dr. Bruce Cook, M.A.,C. Psych Assoc.
36In response, the respondent argues that the applicant has not shown how the pre-existing condition would impact his recovery within the MIG limits. The respondent relies on the psychological assessment of Dr. Charlotte Lynn Gooden Ph.D., C. Psych.
37Dr. Beland’s CNRs demonstrate that the applicant’s anxiety and depression were “severe” and that his sleep was “beyond terrible” and based on this, Dr. Beland supported the applicant’s short-term disability (“STD”) claim, which was ultimately unsuccessful. One point of significance highlighted by the applicant is a letter written by Dr. Beland in support of the applicant’s STD denial where she states that the applicant’s symptoms were exacerbated because of the accident, but unfortunately her clinical notes and records do not support such a position nor has this been elaborated. I still put significant weight on Dr. Beland’s CNRs as the applicant had several appointments with Dr. Beland before and after the accident. Although there are a multitude of visits post-accident, there are very few and minor mentions of the accident.
38As mentioned above, the report of Dr. Cook, Psych Assoc., describe that the applicant started to experience psychological difficulties shortly after the accident contrary to Dr. Beland’s CNRs, I therefore do not put much weight to this report.
39I prefer again the information contained in the insurer examination of Dr. Gooden, Ph.D., C. Psych., who reviewed a much more extensive file of documents to assist with her conclusions. and concluded the applicant did not meet DSM-5 diagnostic criteria for a formal diagnosis as a result of the accident, and that he has sustained a minor injury (as defined by the Schedule) as a result of the accident from a psychological perspective.
40Having a pre-accident psychological condition does not automatically remove someone from the MIG, unlike the position the applicant is taking. It must be shown that the pre-existing psychological condition precludes maximal recovery from any accident-related minor injury if he were kept in the MIG.
41When analyzing s. 18(2) of the Schedule, it is undisputed that the applicant has a pre-existing medical condition and that the pre-existing medical condition was documented by a health practitioner, Dr. Beland, before the accident. But I have not been convinced that the applicant’s treating health practitioner determined and provided compelling evidence that the pre-existing psychological condition will prevent maximal recovery from the minor injury if the person is subject to the MIG limit.
42As a result, I find that the applicant suffered minor injuries as a result of the accident which are treatable within the MIG. The applicant has not convinced me that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.
The applicant did not suffer from physical injuries that fall outside of the MIG
43I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.
44The applicant relies on Dr. Cook’s report that describe his symptoms as ongoing pain in his left shin and knee, low back pain, neck and shoulder pain and headaches that have been persisting since the accident, but I accord little weight to this coming from a psychological screening interview.
45The applicant also claims that physical therapy has led to positive outcomes and that medical records and assessments from Mediwise Healthcare Centre demonstrate that ongoing treatments are reasonable and necessary to improve his quality of life. Dr. Rakkar, chiropractor, indicated that the injuries were sprains and strains and the prognosis was determined to be poor based on the sustained injuries.
46In response, the respondent relies on the clinical notes and records of Dr. Beland, and two independent section 44 evaluations: a musculoskeletal assessment completed by Dr. Pankaj Bansal, family physician, a musculoskeletal assessment completed by Dr. Eric Silver, family physician. While a functional abilities evaluation by Dr. Hytman, chiropractor was also performed, the respondent has not used it in submissions.
47The respondent argues that the applicant did not seek medical attention after the accident. Although the applicant saw Dr. Beland, his family doctor, approximately five times in the weeks following the accident, he did not mention the accident for two months and only in passing while discussing other issues. He stated that he was not injured at the time but noticed back pain several days later. No diagnosis tests were ordered, no medication prescribed nor were there recommendations to pursue specific treatments at the time. The medical appointments dealt with another ongoing unrelated medical issue.
48In relation to the OCF-23 from Mediwise Health Care Centre provided by the applicant to suggest a need for treatment, the respondent suggests that they include more injuries than were ever reported to Dr. Beland.
49Dr. Bansal, family physician, diagnosed uncomplicated self-resolving soft tissue injuries with no valid signs of musculoskeletal, orthopaedic or neurological injury and considered this was a minor injury as per the Schedule. The respondent also relies on the report of Dr. Silver, family physician, that indicates the applicant reported pain in his left shin, lower back and neck pain and headaches, to which Dr. Silver concluded the applicant had uncomplicated strain injuries that are considered minor injuries under the Schedule.
50Although Dr. Silver concluded that the applicant’s injuries are considered minor under the MIG, the applicant argues that the injuries discussed in the report extend beyond the MIG. In response to Dr. Hytman’s report, the applicant does acknowledge that although the injuries described would typically fall under the MIG, there is a greater severity to the symptoms that could impact his return to work.
51I have evaluated the totality of the evidence presented to me in making my decision, including the s. 44 assessments.
52I prefer the position of the respondent. The respondent’s argument that there are little to no physical pain complaints to the family doctor that would warrant removal from the MIG is significant as the applicant has seen this doctor repeatedly. The independent assessments presented also support this position as well as the fact that no further diagnostics tests were undertaken or recommended.
53Accordingly, the applicant has not substantiated that he suffers from physical injuries that fall outside the MIG.
Conclusion
54For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
55As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
56However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
ORDER
57I find that:
a. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
b. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.
c. The application is dismissed.
Released: January 12, 2024
Geneviève Painchaud
Vice-Chair