Licence Appeal Tribunal File Number: 21-009663/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:
Kerian Smith
Applicant
and
Nordique Insurance
Respondent
DECISION
ADJUDICATOR:
Lisa Yong
APPEARANCES:
For the Applicant:
Mireille Dahab, Counsel
Avneet Kaur, Counsel
For the Respondent:
Michael Rattray, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kerian Smith the applicant, was involved in an automobile accident on October 23, 2020, 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, Insurer, 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $3,782.56 for chiropractic services, proposed by Healthmax Physiotherapy Clinic (“HPC”) in a treatment plan/OCF-18 (“plan”) submitted on April 06, 2021, and denied on May 04, 2021?
iii. Is the applicant entitled to $2,454.35 for chronic pain assessment, proposed by HP in a plan submitted on June 08, 2021, and denied on July 05, 2021?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a predominantly minor injury as a result of the accident. She remains within the MIG and is subject to its $3,500.00 treating limit.
4As the MIG treating limit has been exhausted, the applicant is not entitled to any of the disputed treatment plans.
5As no benefits are owing, withheld or unreasonably delayed, no interest and award are payable.
PROCEDURAL ISSUES
Respondent’s motion to exclude Dr. Chen’s letter dated July 15, 2023 and the clinical notes and records of HPC
6I accept and consider all evidence submitted by the parties including the letter by Dr. Julian Chen dated July 15, 2023 (“Dr. Chen’s letter”), and the clinical notes and records (“CNR”) from HPC as they are relevant to the issues in dispute. I also accept all the parties’ submissions with respect to the substantive issues in dispute.
7The respondent filed Notices of Motion on August 11 and 17, 2023, which sought to:
i. exclude Dr. Chen’s letter, which was produced and served on the respondent on August 2, 2023;
ii. exclude the CNRs of HPC (collectively “new evidence”); and
iii. exclude the relevant applicant’s submissions that makes references to the abovementioned two documents.
8The respondent submits that the new evidence should be excluded as they were not exchanged by the production deadlines as set out in the Case Conference Report and Order dated January 10, 2023 (“CCRO”). It submits that the applicant withheld and delayed producing Dr. Chen’s letter for approximately 17 days after receipt from the relevant clinic on July 17, 2023, and served the same on the respondent on August 2, 2023; and the CNRs of HPC was served on August 11, 2023.
9The respondent further submits that if the Tribunal were to accept the new evidence and relevant applicant’s submissions, it would cause prejudice to the respondent by not having the opportunity to obtain updated responding reports from its own IE assessors. It submits that accepting the new evidence would contravene the principles of procedural fairness, which includes ensuring that parties comply with the orders set by the Tribunal.
10The applicant submits that the late production of the new evidence was due to the respective clinics’ delayed response and was out of her control. She also submits that the new evidence holds substantial probative value in determining the extent of the applicant’s condition and outweighs the perceived prejudice on the respondent. She submits that the medical documents do not contain any novel or significantly new information that would prejudice the respondent.
11The CCRO provides that all responsive items are due by no later than January 31, 2023 (i.e. 90 days from the date of the case conference, which was held on November 2, 2022). The main purpose of a case conference is to set deadlines for production and submissions with the parties’ consent, in most cases, to ensure a fair and efficient process leading up to the hearing.
12As the applicant served the new evidence on the respondent on August 2 and 11, 2023, I find the applicant breached the production order as set out in the CCRO. The applicant did not remedy her breach by filing a motion with the Tribunal requesting an extension of the production deadline or to seek consent to accept the late filed new evidence. The applicant risks the potential exclusion of the new evidence.
13While I acknowledge the respondent’s inability to obtain updated medical opinions from its assessors due to the limited time constraints for when the new evidence was served, I am persuaded that the new evidence is relevant to the issues in dispute because it provides recent information about the applicant’s medical condition.
14As the evidentiary onus rests on the applicant to demonstrate that she warrants removal from the MIG and whether the proposed disputed plans are reasonable and necessary, I accept the applicant’s new evidence, the relevant submissions into consideration and will assign them less weight.
Applicant’s request to exclude the respondent’s surveillance evidence and an Insurer’s Examination report by Dr. Eric Silver dated May 29, 2023
15The applicant raised in her reply submissions that the respondent failed to serve surveillance evidence and an Insurer’s Examination (“IE”) report dated May 29, 2023 by Dr. Silver, in accordance with the production deadlines as set out in the CCRO. Therefore, the applicant submitted that the evidence should be excluded from the evidence. Specifically, the applicant submitted that:
i. the surveillance report dated June 27, 2023, was only served on July 10, 2023 (i.e. 6 months after the deadline for production stated in the CCRO) and she had insufficient time for her assessors to review and provide comment on the surveillance report; and
ii. Dr. Silver’s IE report dated May 29, 2023 should be excluded because it was in contravention of s. 44 of the Schedule or, alternatively, that the Tribunal draws an adverse inference due to improper and late service of the evidence.
16The respondent did not provide a response with respect to Dr. Silver’s IE report dated May 29, 2023 in its submissions and did not have an opportunity to respond in relation to the issue of its surveillance evidence as it was only raised by the applicant in her reply submissions.
17I find that both the respondent’s surveillance report June 27, 2023 and Dr. Silver’s IE report dated May 29, 2023, were issued after January 31, 2023 (i.e. the final production deadline for responsive documents), and therefore are in breach of the CCRO.
18However, given that the applicant received the surveillance evidence on July 10, 2023, and the applicant was granted an adjournment on September 13, 2023 to allow more time for her to address the respondent’s submissions, I find that the applicant has had sufficient time to review and provide her response with respect to the surveillance evidence, where applicable.
19Although Dr. Silver’s IE report dated May 29, 2023 was late served on the applicant, I find that this report to be specifically relevant to the issues in dispute, in that Dr. Silver addresses the issue of the MIG and issue number 3 (as stated above). Further, the applicant was able to make submissions with respect to this report in her submissions. Therefore, I will accept the respondent’s evidence into consideration and will assign less weight due to late service.
ANALYSIS
Minor Injury Guideline (MIG)
20I find the applicant’s injuries are predominantly a minor injury as defined in the Schedule.
21Section 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.”
22An 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.
23The applicant did not specify the grounds for which she should be removed from the MIG. The majority of her submissions were focused on the treatment plans in dispute. However, from these submissions, I infer that the applicant submits that she sustained injuries to her wrists, back, left neck and both her knees as a result of the accident which are not minor and that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
The applicant does not suffer from any pre-existing conditions that warrant removal from the MIG
24I find that the applicant does not suffer any pre-existing conditions that warrant removal from the MIG for the following reasons.
25The applicant submits that she suffers from pain in her wrists as a result of the accident and relies on the clinical notes and records of Dr. Henry Thai, her family doctor, and diagnostic imaging results.
26Although the applicant did not refer to any pre-accident CNRs from Dr. Thai that document any pre-existing conditions in her wrists, I acknowledge that the applicant was found to have bilateral ganglion cysts in her wrists as confirmed in an ultrasound result dated October 26, 2019. An x-ray of her bilateral wrists dated October 22, 2019, was normal.
27However, I agree with the respondent that there was no objective compelling medical evidence by the applicant’s treating physicians or Dr. Thai stating that her pre-existing condition in her wrists preclude her from achieving maximal recovery if kept within the treating limits of the MIG.
28Given the above, I find that the applicant has failed to establish her onus on this ground for the removal from the MIG based on a pre-existing condition.
The applicant sustained predominantly a minor injury as a result of the accident
29I find the applicant sustained a predominantly minor injury as a result of the accident and does not warrant removal from the MIG.
30The applicant submits that she suffers from back, shoulder, knees, left leg injuries as a result of the accident. She relies on the CNRs of Dr. Thai and Dr. Seyed Taghaddos, family physicians of Boniface Mark Medical, an OCF-3 Disability Certificate dated December 2, 2020, the CNRs of Dr. Chen. She also relies on a Chronic Pain Assessment Report dated February 7, 2022, by Dr. Kevin Rod, medical doctor.
31The respondent submits that the applicant failed to meet her burden to prove that she should be removed from the MIG. The respondent also submits that the applicant does not suffer a non-minor injury or chronic pain as she returned to full-time work, working 40-hour work weeks, following the accident and was able to play basketball in her leisure time. It relies on the Insurer’s Examination (“IE”) reports dated June 9, 2021, and May 29, 2023, by Dr. Eric Silver, medical doctor.
32The applicant referred to an OCF-3 in her submissions but this document was not found in “Tab 12” as referenced in her evidence brief. Hence, I was unable to review the same.
33While I accept that the applicant made post-accident complaints of pain in her neck and back to Dr. Thai, I find the applicant suffered soft tissue injuries as a result of the accident which falls squarely within the definition of a minor injury as defined in the Schedule. During the applicant’s first post-accident appointment with Dr. Thai on October 27, 2020 (i.e. 4 days post-accident), he diagnosed her with “likely whiplash or soft tissue injuries” and recommended heat, massage, stretches and prescribed Naproxen. No diagnostic tests were ordered.
34Although Dr. Thai referred the applicant to see Dr. Chen, medical doctor, during this visit, I find that Dr. Chen did not provide the referral on the basis that he thought the applicant’s condition warranted further investigation by another specialist, but rather the referral was given at the applicant’s request to see the same doctor as her friend (i.e. who was the driver in the subject accident).
35On October 29, 2020, the applicant saw Dr. Taghaddos, family physician, and Dr. Chen, in separate appointments and they noted the following:
i. Dr. Taghaddos reported the applicant’s complaints about pain in her back, left side pressure in her neck and in both her knees. He reported that the applicant was fully oriented, no external signs of injury, normal gait, no abnormality in joint and musculoskeletal systems, her neck and cervical spine were non-tender. He did not provide a diagnosis but recommend the applicant to take Tylenol as needed; and
ii. Dr. Chen (i.e. previously referred by Dr. Thai) reported that the applicant demonstrated full ranges of motion in her neck with mild stiffness or tenderness, full ranges of motion in her right and left rotator cuff with mild tenderness and full ranges of motion in her knees. He diagnosed the applicant with a whiplash and pain in her neck and shoulders. He ordered an x-ray and ultrasound diagnostic imaging for the applicant’s back and knees. Dr. Chen made a number of recommendations including a referral to a medical cannabis program and suggested further treatments if conservative measures fail. Dr. Chen classified the applicant as falling under Class 1 – “normal healthy patient” under the American Society of Anesthesiologist Risk Classification System.
36While I am persuaded by the CNRs of Dr. Thai and Dr. Chen of their diagnoses that the applicant suffered a whiplash or soft tissue injury as a result of the accident, I am not persuaded by the applicant’s submission that she has developed a chronic pain condition as a result of the accident-related injuries at this point.
37The applicant did not see Dr. Thai again until after seven months on May 20, 2021. During this visit, the applicant made no accident-related complaints or any other complaints of pain. Dr. Thai reported that the applicant’s “neuro + gait [were] grossly normal” and musculoskeletal system was grossly normal. Dr. Thai provided counselling on a healthy lifestyle and diet. He did not prescribe any medications or referrals to any other specialists. In fact, the applicant did not tender any further CNRs from her family physicians after May 20, 2021, in support of her submissions.
38The post-accident diagnostic imaging results of the applicant’s cervical, lumbosacral spine and shoulder were largely normal, I find this evidence to be consistent with the rest of the applicant’s medical evidence that the applicant sustained a minor injury as a result of the accident.
39With respect to the applicant’s complaint of pain in her knees, I am not persuaded that her knee injuries are a non-minor injury that would warrant removal from the MIG. The applicant made no post-accident complaints about her knees to Dr. Thai during the first post-accident visit on October 27, 2020. Notwithstanding the above, the post-accident x-ray of her bilateral knees were normal. Although the ultrasound of the applicant’s bilateral knees revealed joint effusion, this type of injury falls squarely within the definition of a minor injury as defined by the Schedule and do not warrant removal from the MIG.
40The applicant submits that she was prescribed medical cannabis oil by Dr. Anthony Duzenli, physician, and separately, received Naropin (epidural/nerve block) injections from Dr. Chen on November 6 and 21, 2020, as evidence that she has been suffering from a chronic pain condition resulting from the accident-related injuries.
41While I acknowledge that the applicant has been taking medical cannabis oil for her pain and insomnia symptoms as a result of the accident, the CNRs from Dr. Duzenli noted that the applicant reported improvement in both her pain and quality of sleep. The applicant failed to point to further evidence of any functional impairment or physical limitations as a result of her accident-related injuries.
42Further, I find the evidence does not support a finding that the applicant received injections for pain relief as Dr. Chen’s noted “Procedure: NA” and “NA” on multiple occasions throughout his clinical records. I find that Dr. Chen stated only that the applicant’s neck and back were tender and recommended rehabilitation but did not prescribe any further medications for the applicant’s complaints of pain. As mentioned above, there were no compelling and contemporaneous medical evidence of ongoing pain complaints documented by the applicant’s family doctor that supported the applicant’s claims that she continued to suffer from chronic pain with a functional impairment such that it would warrant removal from the MIG.
43The applicant also relies on a s. 25 chronic pain assessment report dated February 7, 2022, by Dr. Rod, medical doctor, who diagnosed the applicant with a chronic pain syndrome in her joints, cervical, lumbar and thoracic spine, bilateral shoulder, bilateral wrist, bilateral knee, chronic sleep and chronic mood disturbances.
44I am not persuaded by Dr. Rod’s report because he was only provided and reviewed a limited number of medical records of the applicant and did not provide detailed explanation for the basis of reaching his final diagnoses of the applicant in his report. Notably, Dr. Rod was not provided with any pre-accident medical documents including the diagnostic imaging results of the applicant’s wrist. Hence, he was unaware of the applicant’s condition of her wrists at the time of his assessment and assumed that her complaints about her wrists were part of the accident-related injuries.
45Also, Dr. Rod was not provided with the CNRs from the applicant’s family physicians and was unaware that she was diagnosed with a whiplash and soft tissue injuries immediately after the accident. I find that Dr. Rod’s assessment is limited to his observations of the applicant at the time of his assessment, physical examination and subjective complaints of the applicant during the time period of approximately two years post-accident.
46Despite reviewing the post-accident diagnostic imaging results, which showed that the applicant’s shoulders were normal, cervical spine was normal; bilateral shoulders and knees were normal, Dr. Rod diagnosed the applicant with chronic pain syndrome in numerous areas including lumbar, thoracic, cervical spine, bilateral wrist, bilateral shoulder, bilateral knee pain, cervicogenic headaches, sleep disturbances and mood disturbances. He did not provide any explanation for the basis of his findings and conclusions. I do not find Dr. Rod’s findings to be persuasive or consistent with the rest of the applicant’s medical evidence. For example, the applicant did not make any post-accident complaints about headaches to her family physicians. Hence, I have assigned less weight on Dr. Rod’s report.
47I prefer Dr. Silver’s IE report dated June 1, 2021, over Dr. Rod’s report for the following reasons. In my opinion, Dr. Silver would be able to better assess the applicant’s accident-related injuries as well as any chronic pain condition as his assessment was conducted around eight months after the subject accident.
48I find that Dr. Silver’s report to be thorough and consistent with the CNRs of the applicant’s family physician. I acknowledge that Dr. Silver reviewed medical documents and noted the applicant’s report of soreness and pain in her lower back, left-sided neck and upper trapezius and left knee during the physical examination. He reported that the applicant demonstrated full ranges of motion in her cervical spine, thoracolumbar spine, bilateral shoulder and bilateral knees. He also noted inconsistencies between the applicant’s reported knee injuries, mechanism of the accident and the post-accident diagnostic imaging results. However, Dr. Silver opined that the applicant’s accident-related injuries were consistent with the complaints of myofascial neck, upper trapezius, upper back and lower back pain and that she sustained uncomplicated soft tissue injuries as a result of the accident which are minor as defined in the Schedule. Dr. Silver also reported that he did not observe significant functional or physical limitations during his assessment.
49The applicant made submissions that she has not returned to several daily activities of living such as cleaning tasks around the house and suffers limitations at her workplace, however she did not refer to any medical evidence to corroborate and support her claims. The applicant also failed to provide references to any further updated medical evidence from her family physician or treating doctors of any chronic pain with functional impairment.
50Lastly, the applicant relies on a referral dated March 3, 2021, by Dr. Deepak Murphy who recommended a brace for her left knee for a post fracture pain and instability and a TENS unit for her chronic mechanical back pain. However, there were no CNRs from Dr. Murphy to support his recommendations or objective medical evidence that the applicant suffered any fractures in her left knee as a result of the accident. As mentioned above, the post-accident x-ray of the applicant’s knees were normal.
51Given the above reasons, I find the applicant suffered a predominantly minor injury as defined by the Schedule and does not warrant removal from the MIG.
52As the applicant has been found to remain within the MIG and given that the $3,500.00 funding limit was previously exhausted, no additional analysis is required to determine if the plans in dispute are reasonable and necessary pursuant to the Schedule. As no benefits are overdue, no interest is payable.
Award
53The applicant sought an award under s. 10 of Reg. 664. Under s. 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 the payment of benefits. As no benefits are unreasonably withheld or delayed, it follows that the respondent is not liable to pay an award.
ORDER
54The applicant sustained a predominantly minor injury as a result of the accident. She remains within the MIG and is subject to its $3,500.00 treating limit.
55As the MIG treating limit has been exhausted, the applicant is not entitled to any of the disputed treatment plans.
56As no benefits are owing, withheld or unreasonably delayed, no interest and award are payable.
57The application is dismissed.
Released: August 29, 2024
Lisa Yong
Adjudicator