Licence Appeal Tribunal File Number: 22-004698/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:
Resende Sobrinho
Applicant
and
Royal & Sun Alliance
Respondent
DECISION
ADJUDICATOR:
Tami Cogan
APPEARANCES:
For the Applicant:
Alexandra L Patruno, Paralegal
For the Respondent:
Maryam Younes, Counsel
HEARD: In Writing
OVERVIEW
1Resende Sobrinho, the applicant, was involved in an automobile accident on September 26, 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, Royal & Sun Alliance, 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 $2,564.96 for physiotherapy services, proposed by Midland Wellness Clinic, in a treatment plan/OCF-18 (“plan”) dated July 3, 2020?
iii. Is the applicant entitled to $2,269.34 for physiotherapy services, proposed by Midland Wellness Clinic, in a plan dated September 28, 2020?
iv. Is the applicant entitled to $3,093.20 for physiotherapy services, proposed by Midland Wellness Clinic, in a plan dated January 17, 2020?
v. Is the applicant entitled to $1,973.72 for physiotherapy services, proposed by Midland Wellness Clinic, in a plan dated January 8, 2021?
vi. Is the applicant entitled to $1,825.91 for chiropractic services, proposed by Midland Wellness Clinic, in a plan dated July 10, 2021?
vii. Is the applicant entitled to $1,995.33 for psychological services, proposed by Midland Wellness Clinic, in a plan dated January 29, 2021?
viii. Is the applicant entitled to $1,646.67 for physical rehabilitation, proposed by Midland Wellness Clinic, in a plan dated June 4, 2022?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
x. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant sustained a predominantly minor injury as a result of the accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
4The applicant is entitled to the benefits set out in the disputed treatment plans, if already incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.
5No award under s. 10 of Regulation 664 is payable.
PROCEDURAL ISSUES
Respondent’s Motion to Exclude Reply Submissions
6The respondent’s motion is granted. Paragraphs 7 through 13 of the applicant’s reply and the clinical notes and records of Dr. Dao related to those paragraphs will be excluded.
7The respondent filed a motion dated November 22, 2023, one day after receiving the applicant’s reply submissions. The respondent submits paragraphs 7 through 13 of the applicant’s reply and the clinical notes and records of Dr. Dao should be excluded because they are prejudicial to the respondent. The deadline for document productions was April 16, 2023 and the applicant is in breach of Rule 9.4. The clinical notes and records were received by the applicant on November 16, 2023, and not provided to the respondent until filed with the reply submissions on November 21, 2023. The respondent was unable to know the case they needed to meet and unable to prepare a proper response. In the alternative, the respondent requests an opportunity to file a sur-reply.
8The applicant does not dispute that the evidence was not filed in accordance with the production deadlines set in the Case Conference Report and Order, but submits the evidence is relevant and was not available until after the initial submissions were filed. The applicant requests that the clinical notes and records and reply should be admitted into the hearing. The applicant does not oppose the respondent filing a sur-reply.
9I previewed the documentation attached to the applicant’s reply submissions in search of a date that it was created by Dr. Dao, and when it was sent to the applicant. I note that these records are of very poor quality and largely illegible. If entered into evidence, there is a probability that important information would be missed or inadvertently misrepresented due to the illegibility.
10I note that the applicant’s submissions were due on October 25, 2023. Dr. Dao’s records were created on October 26, 2023. The applicant was late in filing the submissions on November 2, 2023. The records of Dr. Dao were received on November 16, 2023. The applicant’s reply submissions were filed late on November 21, 2023.
11When the applicant became aware of the new records, appropriate actions should have been taken to request the documentation be accepted into evidence pursuant to Rule 9.4, prior to filing them as part of the reply submissions. I have no evidence before me that suggests the applicant alerted the respondent to the anticipated documentation, nor did the applicant send the documentation to the respondent when received, in advance of filing reply submissions.
12I find that as a direct result of the applicant not following appropriate procedures to submit new evidence after the deadlines, the respondent suffered prejudice when it did not have the opportunity to know the case it must meet to put forth a full response. For this reason, the applicant’s reply submissions at paragraphs 7 through 13 and the records of Dr. Dao are excluded from this hearing and neither will be considered by the Tribunal.
ANALYSIS
Minor Injury Guideline (“MIG”)
13The applicant has not met their burden of proof that he has suffered an injury or condition as a result of the accident that warrants removal from the MIG.
14The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
15The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition or that he has a pre-existing health condition that would preclude him from reaching maximal recovery of any accident-related minor injury if he remains subject to the MIG and the $3,500.00 funding limit on treatment.
16The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the applicant’s entitlement to them is contingent on a finding that his injuries are not included in the minor injury definition. If such a finding is made, the applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.
17The applicant submits he has a pre-existing condition, a psychological injury, as well as chronic pain, and he should not be subject to the MIG limits for treatment.
18The respondent submits the applicant has failed to meet his burden and should remain subject to the treatment limits of the MIG.
Pre-existing Condition
19I find that the applicant does not have a pre-existing condition that would prevent maximal recovery from any accident-related minor injury, if he were treated within the MIG.
20In order to be removed from the MIG limits based on a pre-existing condition, pursuant to s. 18(2) of the Schedule, the applicant must provide compelling evidence, documented before the accident, from his health practitioner that he has a pre-existing medical condition that will prevent his achieving maximal recovery from his accident-related minor injuries if he remains subject to the MIG limit.
21The applicant submits he had a pre-existing right wrist condition that was aggravated by the accident.
22The respondent submits the existence of a pre-existing injury is not sufficient for the applicant to be removed from the MIG. There must also be compelling evidence that the pre-existing condition will prevent the applicant from achieving maximal recovery of any accident-related minor injury.
23I note that Dr. Thai documented on August 20, 2020, the applicant reported intermittent pain in his right wrist since the accident. Dr. Thai sent the applicant for x-rays and recommended he wear a wrist brace at night. On September 24, 2020, the applicant followed-up on an x-ray of his right wrist. The applicant reported the pain had resolved spontaneously without medication. The x-ray showed osteoarthritis, unchanged since 2018. The applicant had full range of motion, and no bony tenderness. The applicant was instructed to take Tylenol for osteoarthritis flare-ups. I have not been directed to any medical evidence that the applicant’s pre-existing osteoarthritis has or will prevent maximal recovery if treatment is subject to the MIG limits.
24I find the applicant has not met his burden of proof that he suffered from a pre-existing condition that would prevent maximal recovery from his minor injuries. The applicant remains subject to the MIG limits on this basis.
Chronic Pain
25I find that the applicant has failed to prove, on a balance of probabilities, that he suffers chronic pain with functional impairment.
26Chronic pain with functional limitations is not included in the minor injury definition and a finding that the applicant sustained chronic pain with functional limitations as a result of the accident would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG.
27The criteria for a chronic pain condition are outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA 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 forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
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 contracts.
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 needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
28The applicant relies on the eight treatment plans (date ranges between January 17, 2020 and October 18, 2022), which all state the applicant suffers from low back pain, pain in thoracic spine, subluxation complex, nervousness, and other symptoms and signs involving cognitive functions and awareness. The applicant also relies on psychological pre-screening interview completed on January 29, 2021 by Mila Popova, psychotherapist.
29I note that other than listing the symptoms, none of the treatment plans provide any explanation or detail of how these symptoms were identified, the extent or severity of the symptoms, or any physical limitations resulting from the symptoms. The psychological pre-screening interview does provide additional information to support the conclusions of the assessor. The applicant reported his pain interferes with his recreational activities, activities of normal life, and socializing. The applicant also reported anxiety that he attributed to the accident. However, this is the only evidence before me in which the applicant reported these complaints.
30I note that on September 28, 2019, two days after the accident the applicant reported pain in his back to Dr. Van, who diagnosed strain/sprain in lower back and neck. The applicant returned to work. The applicant did not report any physical limitations at that time. The physiatry assessment of Dr. Lori Feigelson conducted on September 17, 2020, confirmed soft tissue tenderness and pain between the applicant’s neck to his lower back, however, Dr. Feigelson opined the applicant sustained a soft tissue injury, subject to treatment under the MIG limits. On December 22, 2021, the applicant reported recent, worsening back pain to Dr. Thai and requested an x-ray. The applicant did not report any physical limitations at that time. Dr. Thai ordered the x-ray and recommended heat/ice, Advil/Tylenol as needed. The clinical history on the x-ray report does indicate a history of “chronic back pain”, however, that does not equate to a diagnosis.
31I have not been directed to any medical records in which the treatment provider identifies physical limitations or recommends limiting physical activity. I have not been directed to any medical records to support a diagnosis of chronic pain with functional impairment. Only the psychological pre-screening interview speaks to symptoms that pertain to the AMA Guides criteria for chronic pain, and only two of the six criteria are addressed.
32It is not ongoing pain alone that takes an applicant out of the MIG, but rather, it must be continuous or of such severity that it causes a functional impairment.
33Although the applicant’s back pain is documented, on a balance of probabilities I cannot find that the applicant has functional limitations. The applicant has not met his burden of proof that he has chronic pain with functional impairment, and on this criterion remains subject to the MIG.
Psychological Impairment
34The applicant has not met his onus to prove he suffers from a psychological impairment that would remove him from the MIG.
35Psychological impairments are not included in the minor injury definition. A finding that the applicant sustained psychological impairment as a result of the accident would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
36The applicant relies on the treatment plan completed by Mila Popova, psychotherapist on January 29, 2021. The treatment plan indicates a provisional diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. I note the first and only medical record from the family physician that reports any psychological symptom is from Dr. Thai on March 22, 2023. During that appointment the applicant declined a psychological referral but opted for teleCBT. I have not been directed to any evidence that supports the teleCBT service was engaged by the applicant. The Insurer’s Examination assessments conducted by Dr. Louise Koepfler, psychologist on October 26, 2020 and September 7, 2021 do not support any psychological symptomology, and reports the applicant denied seeking any treatment for his mental health and denied any psychological symptoms or loss of functioning.
37I find that on a balance of probabilities the applicant has not suffered a psychological impairment as a result of the accident. The applicant has not met his burden to prove he should be removed from the MIG as a result of a psychological condition. The applicant remains subject to the MIG limits.
Treatment Plans and Interest
38Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, if already incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.
Award
39The respondent is not liable to pay an award under s. 10 of Regulation 664.
40Under s. 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. An award should be proportionate and considerate of the blameworthiness of the insurer, the vulnerability of the insured and the advantage wrongfully gained by the insurer from its misconduct. The Tribunal has found unreasonable behaviour by an insurer to be behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
41The applicant submits an award is owing pursuant to s.10 of Regulation 664 because the insurer acted in a stubborn and inflexible manner, denying and withholding payments for treatment and assessments.
42The respondent submits that it has not unreasonably withheld or delayed treatment. The applicant has failed to provide evidence to support the claim for an award.
43I find the applicant has not met the burden of proof to support the respondent has acted in a manner worthy of an award. No award is payable.
Conclusion and ORDER
44The Tribunal orders the following:
i. The applicant sustained a predominantly minor injury as a result of the accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. The applicant is entitled to the benefits set out in the disputed treatment plans, if already incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
Released: May 13, 2024
Tami Cogan
Adjudicator```