Citation: Sutherland v. Economical Insurance Company, 2024 ONLAT 22-000410/AABS

Licence Appeal Tribunal File Number: 22-000410/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:

Lloyd Sutherland

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Sandy Williams, Counsel

For the Respondent:

Kari-Anne Layng, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Lloyd Sutherland (the “applicant”) was involved in an automobile accident on February 23, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Economical Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. The parties agree that the MIG limit is exhausted. As a result, the applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans.

ISSUES

3The issues in dispute are:

1. 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 MIG limit?

2. Is the applicant entitled to $3,399.00 for physiotherapy services, proposed by Medex Health Services in a treatment plan/OCF-18 (“treatment plan”) dated June 30, 2021?

3. Is the applicant entitled to $3,940.31 for psychological services, proposed by Medex Health Services in a treatment plan dated September 28, 2021?

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

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

RESULT

4For the reasons that follow, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

2. The applicant is not entitled to the disputed treatment plans.

3. The applicant is not entitled to interest.

4. The respondent is not liable to pay an award.

PROCEDURAL ISSUE

5The respondent filed a Notice of Motion on July 27, 2023 seeking to exclude evidence and to strike the applicant’s claim for an award as the applicant failed to comply with the Case Conference Report and Order (“CCRO”) released on February 8, 2023.

6The respondent submits that the parties agreed to exchange various documents in accordance with the timelines set out in the CCRO. Despite the agreed upon timelines, several documents that the applicant was ordered to produce by January 12, 2023 were not produced until May 3, 2023, June 20, 2023, and July 6, 2023. The respondent further submits that the particulars of the award were due by no later than February 11, 2023, and the applicant did not produce the particulars until June 26, 2023.

7The respondent argues that given the applicant’s breach of the CCRO, as a matter of procedural fairness, his late-produced documents should be excluded from the evidence, and his claim for an award should be struck. The respondent also notes that natural justice demands that the parties know the case they must meet at a hearing. The respondent relies on Rule 9.4 of the Common Rules of Practice and Procedure, Osei-Kumi v. Certas Home and Auto Insurance Company, 2023 CanLII 2691 (ON LAT) [Osei-Kumi], and Zhao v. Allstate Canada, 2021 CanLII 18931 (ON LAT) [Zhao].

8In response, the applicant submits that the timing of the production of documents by third parties is beyond his control. He states that he made best efforts to produce documents as they were received. The applicant further submits that he gave the respondent notice of the grounds for the award on December 13, 2022, during the case conference. The applicant claims that he did not receive the adjuster log notes until June 7, 2023 and that he promptly provided the particulars on June 26, 2023.

9The applicant argues that Zhao and Osei-Kumi are distinguishable. He also submits that the governing legislation should be treated as remedial and interpreted broadly, and he notes that the Schedule is consumer protection legislation and is remedial in nature. Further, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 allows the Tribunal to admit as evidence any relevant document.

10Finally, the applicant seeks to amend the timetable set out in the CCRO.

11The respondent subsequently sought to file reply submissions to correct factual inaccuracies contained in the applicant’s responding submissions. The applicant opposed the respondent’s request and indicated that it did not have a right to reply to the motion. Ultimately, the respondent did not file reply submissions.

12For the reasons that follow, the respondent’s motion is partially granted.

Respondent’s request to exclude evidence

13The respondent’s request to exclude evidence is granted.

14Pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, if a party fails to comply with any Rules, directions or order with respect to disclosure or inspection of documents or things, that party may not rely on the document or thing as evidence without the consent of the Tribunal.

15As noted by the respondent, the parties agreed to exchange documents for the hearing in accordance with the CCRO. The agreed upon timelines were to ensure that the parties had a fair hearing and that no party was surprised by last minute evidence at the hearing. The evidence that the respondent seeks to exclude was produced for the first time after all of the timelines to exchange documents had passed. As a result, the respondent was not afforded with the opportunity to respond to the applicant’s updated records. Procedural fairness requires that a party have the opportunity to be heard and an opportunity to respond to the position taken against them. This ensures that the parties understand the case that they must meet, and that the parties have the opportunity to be heard and to respond accordingly.

16It was the applicant’s obligation to comply with the Tribunal’s order, and he failed to do so. Further, given that the onus is on him to demonstrate entitlement to the benefits in dispute, he ought to have requested relief from the timelines set out in the CCRO and obtained the Tribunal’s consent to rely on the late-produced documents before including them with his written hearing submissions. Per Rule 9.4, without the Tribunal’s consent, he cannot rely on these documents.

17Given the applicant’s breach of the Tribunal’s order, it falls within my discretion to determine whether to consider his late-produced documents (see: Statutory Powers Procedure Act, ss. 23(1) and 25.0.1).

18In the circumstances, I am not prepared to consider the applicant’s late-produced documents. I am not persuaded by the applicant’s reasons for not complying with the Tribunal order. I find the applicant’s evidence lacking in demonstrating the alleged difficulties he experienced in obtaining Dr. Okafor’s records, and the applicant has not provided particulars of his efforts in obtaining these records. Also, no explanation was provided as to why these records were only produced to the respondent on June 20, 2023 when they were provided to the applicant via email on May 9, 2023.

19Further, while I appreciate that the applicant believed that Dr. Bahiraei’s report had been delivered on October 1, 2021, the applicant has not provided an explanation as to why this report was not produced during the course of this proceeding by February 11, 2023 as a document upon which he intended to rely at the hearing as required by the CCRO. As for the balance of the late-produced documents, like Dr. Okafor’s records, the applicant’s efforts in obtaining same have not been substantiated.

20I find that the applicant’s failure to make disclosure as required by the Tribunal frustrates the Tribunal’s ability to determine the issues and the parties’ ability to make full and fair submissions. Further, the onus is on the party contravening an order of the Tribunal to explain their non-compliance and show that they should be granted relief.

21Accordingly, I grant the respondent’s request to exclude the following records from the hearing record:

1. OHIP summary from April 15, 2022 to January 9, 2023;

2. Records of Dr. Kamela Kathur from July 18, 2022 to January 9, 2023;

3. Records of Medex Health from June 17, 2021 to February 7, 2023;

4. Clinical notes and records of Dr. Innocent Chukwudumebi Okafor from February 23, 2015 to May 12, 2023;

5. Clinical notes and records of Charolais IDA Pharmacy for February 23, 2015 to June 15, 2023; and

6. Report of Dr. Hadi Bahiraei of Medex Health Services dated June 16, 2021.

Respondent’s request to strike the claim for an award

22The respondent’s request to strike the applicant’s claim for an award as an issue in dispute is denied.

23I am not persuaded by the applicant’s submissions that he did not receive the adjuster log notes on January 12, 2023. While I appreciate that the respondent’s correspondence dated January 12, 2023 was addressed to Ariane Wiseman as opposed to Ryan Naimark, it was sent to the email address provided by the applicant.

24Pursuant to Rule 4.4 of the Common Rules of Practice and Procedure, the applicant or his representative must notify the Tribunal and the other parties or their representatives, in writing, as soon as possible, of any change in their contact information. There is no evidence that the applicant’s email address changed during the course of this proceeding.

25Although the applicant indicates that there is no Declaration of Representative for Ms. Wiseman on file, Ms. Wiseman appeared at the case conference as his legal representative, and based on an email dated June 6, 2023, the applicant’s current legal representative, Sandy Williams, took over the file from Ms. Wiseman. Despite the apparent change in legal representation, the applicant did not deliver a Declaration of Representative until January 31, 2024.

26Nevertheless, in the present case, I am prepared to allow the applicant to pursue his claim for an award. In Waldock v. State Farm Mutual Automobile Insurance Company, 2019 ONSC 6105, the Divisional Court held at paragraph 49 that “a special award is always a possibility if the arbitrator finds that the insurer unreasonably withheld or delayed the payments of benefits.” As such, it falls within my discretion to allow the applicant to pursue his claim for an award.

27Further, I find that it is not procedurally unfair to the respondent to allow the applicant to pursue his claim for an award. Although the applicant did not deliver his particulars in accordance with the CCRO, the respondent had the opportunity to respond to the applicant’s submissions, and it exercised its participatory rights by delivering written hearing submissions on the issue of an award. This is consistent with the principles of procedural fairness.

28Accordingly, the Tribunal will consider the issue of whether the respondent unreasonably withheld or delayed payment of benefits.

Applicant’s request to amend the timetable set out in the CCRO

29The applicant’s request to amend the timetable set out in the CCRO is denied.

30In the circumstances, I find that it would be procedurally unfair for the Tribunal to consider the applicant’s request. The applicant did not file a Notice of Motion in accordance with Rule 15 of the Common Rules of Practice and Procedure. Although the respondent requested to file reply submissions, the applicant opposed the request. As a result, the respondent did not have the opportunity to respond to the relief sought by the applicant.

ANALYSIS

Minor Injury Guideline (“MIG”)

31Section 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 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.”

32An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside 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 their 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. In all cases, the burden of proof lies with the applicant.

33At the time of the accident, the applicant was 65 years old, and he was retired.

34The applicant submits that he should be removed from the MIG because he suffers from chronic pain and a psychological impairment as a result of the accident. The applicant relies on the CNRs of Brampton Civic Hospital, the CNRs of Medex Health Service, and the disputed treatment plans.

35In response, the respondent submits that the applicant sustained soft-tissue injuries as a result of the accident, and that the applicant has failed to meet his onus of proving that his accident-related injuries warrant removal from the MIG. The respondent further submits that there is no evidence to support that the applicant suffers from chronic pain with functional impairment or a psychological condition as a result of the accident.

36The respondent relies on various insurer examination reports including a physiatry assessment report dated July 24, 2018 and a physiatry paper review report dated November 18, 2018, both completed by Dr. Yuri Marchuk, physiatrist, a psychiatric assessment report dated July 24, 2019 and a psychiatric paper review report dated November 28, 2018, both completed by Dr. Stephanie Wiesenthal, psychiatrist, and an occupational therapy in-home assessment report dated July 24, 2018 completed by Jag Dhirayain, occupational therapist.

The applicant did not sustain injuries that warrant removal from the MIG

37I find that the applicant failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 on treatment.

Chronic Pain

38The applicant submits that he meets three out of six criteria outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). The applicant also submits that he was diagnosed with chronic pain syndrome by Farzaneh Pariman, a psychological associate who practices under the supervision of Dr. Hadi Bahiraei, psychologist.

39I find that the applicant has failed to demonstrate that he meets the test for chronic pain as outlined in the Guides. While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set fourth that a person must meet at least three out of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including working, recreation, or other social contacts;

5. 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

6. Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

40I am not persuaded by the applicant’s medical evidence or submissions that he meets three out of the six criteria set out in the Guides for establishing chronic pain. The applicant has not identified which criteria has been met. Although the applicant claims that the insurer examination reports of Dr. Wiesenthal, Dr. Marchuk, and Mr. Dhirayain support a diagnosis for chronic pain, none of these assessors have concluded that the applicant suffers from chronic pain as a result of the accident.

41Moreover, while the applicant relies on a diagnosis of chronic pain made by Ms. Pariman and Dr. Bahiraei, their corresponding report has been excluded from the evidence. Even if I were incorrect in excluding this report, it would not have changed my conclusions and findings as the applicant has not directed me to any other medical evidence to support the diagnosis, and there is no evidence to support that the applicant was diagnosed with chronic pain syndrome by a physician.

42I further find that the evidence supports that the applicant sustained soft tissue injuries within the definition of minor injury under s. 3 of the Schedule. Two days following the accident, the applicant attended the emergency room of the Brampton Civic Hospital with complaints of neck and back pain as a result of the accident. Diagnostic imaging was unremarkable, and the applicant was prescribed anti-inflammatory medication.

43The applicant was later assessed by Dr. Mylinh Duong, chiropractor, who completed the Disability Certificate (OCF-3) dated April 11, 2018. Dr. Duong noted the following accident-related injuries: whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs, sprain and strain of the thoracic spine and lumbar spine, sprain and strain of other and unspecified parts of knee, and headache. The anticipated duration of the applicant’s disability was 9-12 weeks.

44The applicant also received passive therapy for his physical injuries at Medex Health Services throughout 2018, and he reported improvement with respect to his pain and functioning. For example, by June 2, 2018, he was feeling better in general, and by July 28, 2018, he was no longer experiencing headaches.

45Moreover, I accept the conclusion of Dr. Marchuk that the applicant sustained minor injuries as defined by the Schedule. Dr. Marchuk assessed the applicant on June 15, 2018 and concluded that the applicant suffered from whiplash associated disorder (WAD 2), cervicogenic headaches, cervicothoracic bilateral shoulder myofascial dysfunction, lumbar musculoligamentous dysfunction (superimposed over suspected degenerative changes), left knee patellofemoral joint dysfunction as a result of the accident.

46In his report dated July 24, 2018, Dr. Marchuk indicated that there were no outside factors preventing the applicant from achieving maximal medical recovery from his accident-related injuries. Further, there were no limitations or other restrictions that may delay or prevent the applicant from reaching full recovery from his injuries. Further, in his report dated November 18, 2018, Dr. Marchuk noted that there was no compelling evidence that the applicant’s accident-related injuries cannot be treated within the MIG due to a pre-existing condition that was documented by a health practitioner prior to the accident. He also found that there was no pre-existing condition that would impact recovery of a minor injury.

47Accordingly, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that his injuries warrant removal from the MIG.

Psychological Impairment

48The applicant submits that his psychological impairment warrants his removal from the MIG. In response, the respondent denies that the applicant sustained a psychological impairment as a result of the accident.

49I do not find the applicant’s argument and medical evidence that he sustained a psychological impairment as a result of the accident persuasive. The applicant submits that he was diagnosed by Ms. Pariman and Dr. Bahiraei with suffering from an adjustment disorder (with mixed anxiety and depressed mood), situational phobia (driver/passenger and being a pedestrian), non-organic sleep disorder of the sleep-wake schedule, other specific trauma and stressor related disorder, and chronic pain as a result of the accident.

50The applicant primarily relies on Ms. Pariman’s and Dr. Bahiraei’s corresponding report, which was excluded from evidence. Even if I were incorrect in excluding this report, it would not have changed my conclusions and findings as the applicant has not directed me to any other medical evidence to support the diagnosis.

51Indeed, there is insufficient evidence to support that the applicant suffers from a psychological impairment. Although Dr. Duong noted in the OCF-3 that the applicant was on LTD for psychological issues 11 years ago until he was 65 and that he was seeing a psychiatrist, the applicant has not directed me to any document in the evidence in the evidentiary record to support a pre-existing psychological condition. Also, despite a reference that the applicant was seeing a psychiatrist, the applicant has not included these records in the evidentiary record.

52Additionally, there is no evidence that the applicant complained of psychological symptoms to his family physicians, Dr. Okafor and Dr. Kathur, that he was referred for any psychological treatment, or that he was prescribed any psychotropic medications. While I appreciate that the family physicians’ records and the Charolais IDA Pharmacy records were excluded, even if I were incorrect in excluding these records, it would not have changed my conclusions and findings because aside for the excluded psychological assessment report, the applicant has not directed me to any other medical evidence to support a psychological impairment as a result of the accident.

53Moreover, I accept the conclusion of Dr. Wiesenthal that the applicant does not suffer from psychiatric related injuries relating to the accident. Dr. Wiesenthal assessed the applicant on June 25, 2018. In her report dated July 24, 2018, Dr. Wiesenthal indicated that despite the notation in the OCF-3 indicating that the applicant had pre-existing psychological issues, the applicant did not report any past psychiatric history.

54During the assessment, the applicant denied having symptoms of post-traumatic stress disorder, driving anxiety, or any other anxiety. He reported feeling sad at times following the accident, but overall, he continued to experience enjoyment with his family, to attend church, to drive, to complete errands, and to enjoy watching sports. While the applicant reported issues related to sleep, his energy, concentration, and appetite were intact, and he was not suicidal.

55Further, Dr. Wiesenthal administered psychometric measures. Regarding the Beck Anxiety Inventory, a self-report measure of anxiety, the applicant scored in the moderate range. Regarding the DASS 21, a self-report measure for distress, which assesses depression, anxiety, and stress, the applicant scored in the extremely severe range for depression and the severe range for anxiety and stress. However, Dr. Wiesenthal noted that these reported scores were not in keeping with the clinical information provided by the applicant, and it was her opinion that these scores were not representative.

56In her report dated November 28, 2018, Dr. Wiesenthal noted that there was no compelling evidence that the applicant’s accident-related injuries could be treated within the MIG due to a pre-existing condition that was documented by a health practitioner prior to the accident. She also found that there was no pre-existing condition that would impact recovery of a minor injury.

57In light of all of the evidence, I find that the applicant has failed to meet his evidentiary burden to demonstrate on a balance of probabilities that his injuries fall outside the MIG.

58When an insurer denies a treatment plan, s. 38(8) of the Schedule requires that the insurer reply to a treatment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision.

59Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) of the Schedule, which includes the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.

60The applicant submits that the respondent is required to pay for the treatment plan pursuant to s. 38(11) of the Schedule. The applicant states that the respondent did not provide sufficient medical and other reasons as required by s. 38(8) of the Schedule in its denial letters.

61In response, the respondent submits that it advised the applicant that his injuries could be treated within the MIG and that it responded to the applicant’s request for treatment on a timely basis. Further, it provided fulsome reasons for each denial.

The disputed treatment plans are not payable under s. 38(11) of the Schedule

62I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are payable pursuant to s. 38(11) of the Schedule.

63In its notice letter dated July 12, 2021, the respondent acknowledged receipt of the treatment plan dated June 30, 2021 for physiotherapy services in the amount of $3,399.00 and advised the applicant that it was not prepared to pay for the treatment plan. The respondent relied on Dr. Marchuk’s findings as set out in his report dated November 28, 2018 and noted, among other things, that from a physical perspective, the applicant’s accident-related injuries were minor and that there were no limitations or other restrictions that may delay or prevent him from reaching full recovery from these injuries.

64In its notice letter dated October 13, 2021, the respondent acknowledged receipt of the treatment plan dated September 28, 2021 for psychological services in the amount of $3,940.31 and advised the applicant that it was not prepared to pay for the treatment plan. The respondent relied on Dr. Wiesenthal’s findings as set out in her report dated July 24, 2018, and noted that the applicant did not experience any psychiatric related injuries as a result of the accident and that the applicant denied having symptoms of post-traumatic stress disorder, driving anxiety, or any other anxiety disorder. The respondent further indicated that over three years had passed since the accident and that there were no medical records on file supporting any psychological impairment as a result of the accident.

65I am not persuaded by the applicant’s submissions that the respondent’s denial letters failed to provide sufficient medical and other reasons as required by s. 38(8) of the Schedule. Further, while I am alive to the applicant’s argument that the respondent’s denials were based on stale reports, the applicant has not directed me to any authority to support that the respondent was barred from relying on these reports in the circumstances.

66I find that the reasons provided for denying the treatment plans clearly indicate the medical reasons, including the specific details about the applicant’s condition forming the basis of the respondent’s decision, or information about the applicant’s condition that it does not have but requires to make a determination of whether the treatment plan is reasonable and necessary. Moreover, the reasons provided are sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision. The medical and other reasons contained in the respondent’s denial letters are consistent with the Schedule and M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).

67Accordingly, the applicant has failed to establish that the treatment plans are payable pursuant to s. 38(11) of the Schedule. Moreover, having determined that the applicant’s injuries fall within the MIG, the applicant is not entitled to the disputed treatment plans because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

Interest

68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

Award

69Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant remains in the MIG, and is not entitled to treatment outside the MIG, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.

ORDER

70For the reasons outlined above, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

2. The applicant is not entitled to the disputed treatment plans.

3. The applicant is not entitled to interest.

4. The respondent is not liable to pay an award.

71The application is dismissed.

Released: April 5, 2024

__________________________

Ludmilla Jarda

Adjudicator