Citation: Liezel v. Pembridge Insurance Company, 2024 CanLII 33175

Licence Appeal Tribunal File Number: 22-001754/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:

Banita Liezel

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Golan Mergui, Counsel

Dayana Soto Santana, Paralegal

For the Respondent:

Zachary Berg, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Banita Liezel, the applicant, was involved in an automobile accident on September 2, 2021, 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, Pembridge 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 $2,210.00 for mental health counselling, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) submitted on November 8, 2021, and denied on March 11, 2022?

iii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments in a plan submitted on November 8, 2021, and denied on November 19, 2021?

iv. Is the applicant entitled to $2,460.00 for a home environment assessment, proposed by 101 Assessments in a plan submitted on December 14, 2021, and denied on January 24, 2022?

v. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan submitted on October 7, 2021, and denied on October 21, 2022?

vi. Is the applicant entitled to $2,460.00 for a functional abilities evaluation, proposed by 101 Assessments in a plan submitted on August 6, 2022, and denied on September 12, 2022?

vii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Assessments in a plan dated June 23, 2022, and denied on August 12, 2022?

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

RESULT

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

4Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits incurred within the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUE

The applicant failed to comply with the written hearing submissions deadline ordered by the Tribunal

5I accept and will consider the applicant’s late-filed submissions on July 26, 2023, and the respondent’s submissions filed on November 17, 2023.

6The applicant failed to file her submissions to the Tribunal by July 12, 2023, in accordance with the submission deadline set out in the Case Conference Report and Order dated December 20, 2022 (“CCRO”), and subsequently filed the same on July 25, 2023 at 7:37 pm. As Rule 6.2 of the Tribunal’s Common Rules of Practice and Procedure establishes that documents delivered after 5:00 PM will be deemed to have been serviced on the next day that is not a holiday, delivery is deemed to have occurred on Wednesday, July 26, 2023.

7The respondent filed a Notice of Motion on July 26, 2023 (“NoM”), and submits that due to the applicant’s late filing of her submissions, it was only left with three days to comply with its submission deadline of July 28, 2023, which was prejudicial and inadequate time to respond. The respondent requested the Tribunal:

i. dismiss the applicant’s case in its entirety; or

ii. alternatively, grant an extension for two weeks to respond to the applicant’s written submissions prior to the scheduled hearing.

8On July 28, 2023, the Tribunal advised the parties that the respondent’s motion would be heard together with the substantive issues at the hearing.

9The applicant submits that her late filing of submissions was due to her counsel’s office “internal calendar issue” and disagrees with the respondent’s request to dismiss her case. She requests the Tribunal accept her late submissions and is agreeable to the respondent’s alternative request for the Tribunal to grant an extension for two weeks to enable the respondent to prepare and file its response submissions.

10On November 17, 2023, the respondent filed its response with respect to the applicant’s submissions on the substantive issues.

11I accept the alternative position of the respondent in its NoM and am therefore considering the submissions of both parties in the rendering of this decision. The applicant agreed with the respondent’s request to allow additional time to file its submission to readdress any possible issues of procedural unfairness that could have result from the applicant’s late initial submissions. As the respondent filed its hearing submissions on November 17, 2023, in accordance with this request in its NoM, this ameliorated any prejudice to the respondent.

12As a result, I am considering the hearing submissions of both parties before me.

ANALYSIS

Minor Injury Guideline

13Section 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.”

14An insured 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. In all cases, the burden of proof lies with the applicant.

15The applicant submits that she should be removed from the MIG on the basis that her accident-related injuries are not a minor injury and that she developed psychological impairments and chronic pain.

The applicant suffered a predominantly minor injury that does not warrant removal from the MIG

16I find that the applicant sustained a predominantly minor injury as a result of the accident that does not warrant removal from the MIG.

17The applicant relies on her disability certificate OCF-3 dated September 17, 2021, completed by Dr. Bill Niklos, chiropractor, who indicated that the applicant sustained injuries including: injury of muscle and tendon at her neck level, sprain and strain at thoracic spine, muscle strain of her shoulder region, dislocation, sprain and strain of joints and ligaments of her shoulder girdle, elbow and knee, contusion of knee, injury of muscle and tendon at lower leg level, headache, non-organic sleep disorders, and severe stress and adjustment disorders.

18I am not persuaded that the applicant sustained all the listed injuries stated in the OCF-3 as a result of the accident, except to her left elbow. The hospital records of Sunnybrook Health Sciences Centre from the day of the accident revealed that the applicant was diagnosed with a “mild soft tissue injury Lt elbow” and was discharged on the same day. An x-ray of the left elbow confirmed that it was normal with no fracture or joint effusion.

19During the physical exam, the hospital doctor noted that the applicant demonstrated a full range of motion in her neck with no pain, a full range of motion in her left arm with 5/5 strength in her upper extremity, tenderness to palpation of left medial epicondyle, a full range of motion in her knees with 5/5 strength, no forearm or wrist or shoulder tenderness, and was ambulatory without difficulty. There is no evidence by way of diagnostic imaging results of any dislocations.

20The applicant also relies on the clinical notes and records (“CNRs”) of her family doctor, Dr. Nicole Shievitz, dated May 16, 2022. The physician diagnosed the applicant with back pain as a result of the accident.

21However, I am not persuaded that the applicant’s back pain is related to the accident. Hospital records from the day of the accident did not indicate that she injured her back, and the applicant was walking without difficulty and had full strength in her upper extremities. I also note that the record of this May 16, 2022 appointment with Dr. Shievitz is the only post-accident medical evidence that mentions the accident. In addition, there is no evidence that Dr. Shievitz reviewed any hospital records or diagnostic test results from the day of the accident during this appointment. I note that the applicant did not make any complaints about her left elbow with Dr. Shievitz during this appointment. I find that Dr. Shievitz’s diagnosis was based primarily on the applicant’s subjective complaints and a physical exam.

22Given the above reasons, I find that the applicant sustained a predominantly minor injury to her left elbow at most, which is within the definition of a minor injury as defined in the Schedule and does not warrant removal from the MIG.

The applicant has not established a psychological impairment warranting removal from the MIG

23I find that the applicant has not met her onus to prove that she sustained an accident-related psychological impairment warranting removal from the MIG.

24The applicant submits that she should be removed from the MIG as she has developed a psychological impairment as a result of the accident. She relies on a s. 25 psychological report dated November 4, 2021, by Dr. Konstantinos Papzoglou, psychologist.

25The respondent disputes that the applicant has sustained an accident-related psychological impairment and relies on its s. 44 insurer examination (“IE”) report dated December 3, 2021, by Dr. Amena Syed, psychologist. In this report, Dr. Syed opined that the applicant was not suffering from any psychological impairment as a result of the accident.

26I am not persuaded by Dr. Papazoglou’s psychological report, as his diagnosis of the applicant with an “adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (passenger)” is unsupported by Dr. Shievitz’s CNRs and the medical evidence. As mentioned above, the applicant did not see Dr. Shievitz until May 16, 2022, and did not make any post-accident psychological complaints during this appointment. Further, Dr. Papazoglou did not review any medical documents in the process of writing this assessment and his findings were based primarily on the applicant’s subjective complaints and the psychometric test results.

27I give weight to Dr. Syed’s IE report, as her clinical opinion was formed by conducting an interview with the applicant, administering psychometric tests, and reviewing medical records. Dr. Syed opined that the nature and severity of the applicant’s distress is below any diagnosable threshold and considered to be subclinical, and that the applicant is not suffering from any accident-related psychological impairment as a result of the accident. Dr. Syed’s conclusion appears to be consistent with the medical record, as there is limited evidence that the applicant is suffering from ongoing psychological impairment resulting from the accident.

28The applicant did not rebut Dr. Syed’s IE report or point to further evidence in support of her claim of a psychological impairment resulting from the accident.

29Given the lack of compelling and contemporaneous evidence of a psychological impairment, I find that the applicant has not met her onus to prove that she warrants removal from the MIG on this ground.

The applicant has not established chronic pain with a functional impairment warranting removal from the MIG

30I find the applicant has not met her onus of establishing chronic pain with a functional impairment warranting removal from the MIG.

31The Tribunal has relied on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed (“AMA Guides”) as an interpretive tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guides state that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:

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

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

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

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

32The applicant submits that she satisfies almost all of the six criteria of the AMA Guides due to her suffering from chronic back, leg, and right arm pain as a result of the accident, and therefore warrants removal from the MIG. She relies on the CNRs from Dr. Shievitz, the CNRs from 101 Physio Clinic, hospital records, an OCF-3 dated September 17, 2021, and Dr. Papazoglou’s s. 25 psychological report.

33The respondent submits that the applicant has not led evidence suggesting that she meets any of the criteria of the AMA Guides. It relies on the IE psychological report dated October 5, 2022, by Dr. Syed, an IE physiatry report dated October 5, 2022, by Dr. Rajka Soric, physiatrist, and an IE report by Dr. J. Rusen, orthopaedic surgeon, dated December 3, 2021, who all opined that the applicant’s accident-related injuries do not warrant removal from the MIG.

34I agree with the respondent that the applicant submitted a blanket statement that she meets “most if not all” of the six criteria of the AMA Guides but has not led evidence to support her claim of how she meets this criteria. Submissions must be supported by evidence.

35I find that the applicant has not establish criteria i and ii. There is no evidence of abuse or over-dependent on prescription drugs. The hospital records indicate that the applicant was recommended over-the-counter Tylenol, on the day of the accident, to be used as needed. However, the applicant did not provide evidence that she was prescribed any other prescription drugs for her accident-related injuries.

36Similarly, the applicant has not led sufficient evidence of excessive dependence on healthcare providers. The applicant attended the hospital on the day of the accident and visited Dr. Shievitz eight months post-accident, on May 16, 2022, about her accident-related injuries.

37I am not persuaded by the applicant’s submission that she was unable to seek medical attention for her post-accident injuries from Dr. Shievitz until May 16, 2022. The applicant saw Dr. Stephen Cord, a physician who worked in the same clinic as Dr. Shievitz, on October 1, 2021 (one month after the accident) to receive a vaccination. During this appointment, the applicant did not make any accident-related complaints. On February 18, 2022, the applicant also saw Dr. David Altman, another physician from the same clinic, also to receive a vaccination. This evidence suggests that the applicant could seek medical attention from another physician for her accident-related injuries if her own family physician was unavailable at the clinic.

38With respect to the remaining AMA criteria, the applicant has not led any evidence of secondary physical deconditioning, withdrawal from social milieu, work or social contacts or failure to restore to pre-accident function.

39The applicant has not led evidence of functional impairment stemming from accident-related pain. A general reference to the CNRs from 101 Physio Clinic as evidence that the applicant continued to follow-up with the clinic regarding her pain and strain in her body is insufficient to prove that she suffers from chronic pain with a functional impairment which warrants removal from the MIG.

40The CNRs from 101 Physio Clinic were handwritten, largely illegible and predominantly documented the applicant’s subjective complaints of her neck and shoulder pain (which I previously found to be unrelated to the accident), the applicant’s attendance and the types of therapies provided to the applicant. There is limited evidence that the applicant made the same accident-related pain complaints to her other treating doctors (i.e. Dr. Shievitz, Dr. Cord and Dr. Altman) or sought medical attention in the months immediately post-accident.

41I find Dr. Soric’s IE physiatry assessment report dated October 5, 2022, to be persuasive as Dr. Soric’s observations and diagnosis is consistent with the hospital records from the accident. Dr. Soric reported that the applicant’s physical examination was “entirely within normal limits. She has normal gait pattern. She has excellent sitting and standing posture and normal alignment of the spine…She can heel, toe rise and squat. She does not have any gait abnormalities.” The applicant also reported that she “was off work for 10 days and then returned to work and continued managing the same work and same hours for nine months at which time she stopped in order to prepare for [her personal support worker] exam.” Dr. Soric also wrote that the applicant did not identify any specific functional limitations at the time of the assessment, that she was diagnosed with soft tissue injuries to her elbow and knees, and that the prognosis was favourable.

42As previously noted, I preferred the respondent’s psychological IE assessment by Dr. Syed, who found that the applicant was not suffering from any psychological impairment that would warrant a DSM-5 diagnosis as a result of the accident. However, even if the applicant established development of psychosocial sequalae, this would only establish one out of the six stipulated AMA Guides criteria.

43Given the above reasons, I find that the applicant has not established that she developed accident-related chronic pain with a functional impairment that warrants removal from the MIG.

44Neither party confirmed in their submissions whether the MIG treatment limit of $3,500.00 limit had been exhausted.

45As I found the applicant’s injuries are predominantly minor, she is therefore subject to treatment within the MIG funding limit. As such, an analysis of whether the disputed treatment plans are reasonable and necessary is not required.

46Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

47Accordingly, the applicant is entitled to the benefits incurred within the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ORDER

48The applicant’s injuries are predominantly minor and therefore subject to the treatment within the $3,500.00 funding limit of the MIG.

49Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits incurred within the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

50The application is dismissed.