Citation: Mirza v. Unifund Assurance Company, 2024 ONLAT 22-005245/AABS

Licence Appeal Tribunal File Number: 22-005245/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:

Imran Mirza

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent:

Callum Micucci, Counsel

Written Hearing:

Heard by way of written submissions

OVERVIEW

1Imran Mirza, the applicant, was involved in an automobile accident on July 10, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The following preliminary issues are in dispute:

i. Should tabs 7a-7g, 8, and 9 of the applicant’s submissions (records from Etobicoke Walk-In Clinic and Humber River Hospital, and records from Castlemore Family Medical Centre prior to September 22, 2020), along with any arguments referencing these documents, be excluded from consideration due to the late submission of these documents in contravention of the Case Conference Report and Order (“Order”) from February 24, 2023?

ii. In the alternative, should an adjournment be ordered to allow the respondent time to review the above evidence?

iii. Should the Tribunal exclude from the hearing pages 11-13 of the applicant’s submissions due to a contravention of the Order?

3For the following reasons, I am denying the respondent’s requests to exclude evidence and submissions from this hearing.

4The Order stated that the applicant would provide a number of documents no later than 60 days after the case conference. The respondent submits that the applicant failed provide any of the requested documents in advance of this hearing. Instead, the applicant provided some of the documents for the first time at tabs 7a-7g, 8, and 9 of its submissions.

5The respondent submits that this constitutes a hearing by ambush, and offends the principles of procedural fairness. It submits that in accordance with Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, those documents should not be considered as evidence before the Tribunal. In the alternative, it submits that if the Tribunal allows these documents into evidence, an adjournment should be ordered to allow the respondent time to review the evidence and properly respond.

6The applicant did not provide any reply submissions.

7I find that the respondent has failed to demonstrate how it has been prejudiced by the late production of these documents. The respondent referred to the records of Humber River Hospital and Etobicoke Walk-In Clinic in its own submissions. Although the respondent submits that this should not be taken as consent to admit those documents into evidence, it cannot be said that the respondent did not have an opportunity to review and respond to the documents. The respondent has not explained how this new information would have changed the way its file was adjusted. It has not explained whether it intended to obtain medical evidence of its own based on the new information, what that timeline would look like, or what kind of evidence or opinion it would be seeking. No particulars were provided in that regard.

8With respect to the request for an adjournment, I find that the timely resolution of this matter outweighs any prejudice or disadvantage to the respondent under these circumstances.

9As a result, I exercise my authority under Rule 9.4 of the Common Rules of Practice & Procedure and provide consent for these documents and the related arguments of the applicant to be entered into evidence. I also rely on s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 to admit these documents and related arguments into evidence, as I find them relevant to the subject matter of this proceeding.

10The respondent also submits that the applicant’s submissions exceeded the 10-page limit prescribed by the Order, as its submissions were 13 pages. The respondent argues that this gives the applicant a tactical advantage, and requests that I not consider the applicant’s submissions in excess of the 10-page limit.

11The respondent has not provided particulars with respect to the tactical advantage it refers to, or any prejudice it would suffer if the applicant’s submissions were allowed in full. While I note that perhaps there is an implicit tactical advantage in being allowed to include more pages in submissions than allowed, there is also prejudice to the applicant if his submissions past page 10 are excluded.

12In accordance with Rule 3.1(a) of the Licence Appeal Tribunal Rules, 2023, I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. I find that if I excluded the submissions, the prejudice to the applicant would outweigh any prejudice to the respondent by allowing them. However, Tribunal orders must be followed. Although I am prepared to admit the submissions in full, I may assign the non-compliant portions less weight.

ISSUES

13The 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 of the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $3,696.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. (MMRC) in a treatment plan submitted on July 27, 2020, and denied on July 28, 2020?

iii. Is the applicant entitled to $2,026.55 for chiropractic services, proposed by MMRC in a treatment plan submitted on November 17, 2020 and denied on December 1, 2020?

iv. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by MMRC in a treatment plan submitted on December 29, 2020 and denied on December 29, 2020?

v. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Q Medical in a treatment plan submitted on December 10, 2020, and denied on December 16, 2020?

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

RESULT

14The applicant has not met his onus of proving that his injuries warrant removal from the MIG.

15An analysis of whether the treatment and assessment plans are reasonable and necessary is not required. As no benefits are owing, no interest is payable.

ANALYSIS

Application of the Minor Injury Guideline

16Section 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.”

17An 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 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.

18The applicant submits that he does not belong in the MIG because he is suffering from psychological impairments, chronic pain, and bursitis, and needs ongoing medical treatment. The respondent disagrees, and relies on the opinions of its s. 44 assessors.

19I find that, for the following reasons, the applicant’s injuries fit within the definition of the MIG.

The applicant does not have a chronic pain condition

20The Tribunal has found that in order for a chronic pain condition to remove an insured from the MIG, they must prove that the pain is accompanied by a functional impairment or disability (VG v. Aviva Insurance, 2019 CanLII 22214). Chronic pain is also described as a severe, debilitating condition that is distinct from ongoing or recurring pain (MK v. Aviva General Insurance Company, 2019 CanLII 43873).

21The applicant submits that “the support for physical therapy treatment is implicit in [his] continued suffering from chronic pain.” He relies on Scarlett v. Belair, 2015 ONSC 3635, stating that the case “has determined that ongoing medical treatment is necessary due to the accident. This ruling aligns with [his] situation and further strengthens the argument for his removal from the minor injury guideline.”

22Scarlett dealt with a legal analysis and not a factual one. Aside from clarifying certain legal principles, the results of that case were that the Divisional Court upheld the decision of the Director Delegate in ordering a new hearing. The applicant has not explained how the underlying facts of that case were similar to his, or whether a new hearing even occurred such that the facts were analyzed. I do not find that Scarlett is applicable in the circumstances.

23The respondent submits that although the applicant made a submission that he suffers from chronic pain, no treatment provider or assessor made such a diagnosis, and the evidence does not support him having such a condition.

24The applicant was seen by Dr. Zia Sial at the Etobicoke Walk-In Clinic, as well as his family physician, Dr. Malthry Uddaraju, on a number of occasions after the accident. By July 21, 2020, he reported to Dr. Uddaraju that his pain had improved, and he was not taking any medication. He reported to Dr. Sial on July 26, 2020, that he experienced “significant improvement” and was relying less on pain medication. He reported on July 28, 2020 that he had returned to work on modified duties. The applicant reported to Dr. Uddaraju on September 22, 2020 that he felt much better. He reported on November 12, 2020 that his pain was intermittent, and had improved overall. He advised Dr. Uddaraju that his pain was improving again on December 23, 2020. The final record before me from Dr. Uddaraju is from January 28, 2021, where he reported again that his pain was still improving, even though physiotherapy had stopped. The records depict someone with improving pain, who is less reliant on medication and physical therapy, and who is has returned to work.

25The applicant was assessed under s. 44 by Dr. Sukhinder Bhangu, physiatrist, for the purpose of determining whether the applicant belonged in the MIG. He reported to Dr. Bhangu on January 22, 2021 that he continued to experience pain in his left shoulder and bilateral hips, but his left knee pain resolved three weeks after the accident. He reported an overall improvement of 40%. He reported being able to complete all of his personal care tasks and almost all of his household chores, aside from lawn work and show shoveling. He had resumed driving and going on walks. He had also returned to his regular work hours and duties. He performed home exercises twice per week for 20 minutes.

26The applicant described intermittent pain to his left shoulder, occurring twice per week for 15 minutes, and intermittent pain in his hips, occurring three times per week for 30 minutes. Dr. Bhangu opined that the applicant sustained a soft tissue injury to his left shoulder and lumbosacral spine. He had functional range of motion with full strength on examination. His prognosis was good. It was Dr. Bhangu’s opinion that the applicant’s injuries were treatable within the MIG. He did not recommend any formal treatment programs, and instead stated that he should perform his home-based stretching more frequently through the week.

27The applicant submits that “the narrative woven by the assessment, from the subjective reporting of pain to the objective clinical findings, and the plateau in treatment response, provides a foundation upon which arguments for further chiropractic treatments and psychological assessment are supported.” He does not appear to dispute the findings of Dr. Bhangu, but instead relies on them in order to form his own conclusions. I do not accept the applicant’s interpretation here without evidence to support it. Unlike Dr. Bhangu, he is not a medical professional.

28The applicant also relies on the s. 44 report of Dr. Ray Douglas Baskind, neurologist, stating that Dr. Baskind’s report provides a detailed account of his ongoing discomfort.

29I do not agree that Dr. Baskind’s report assists the applicant. The applicant was assessed by Dr. Baskind on July 22, 2021. When listing the injuries he sustained in the accident, the applicant advised that he had pain in his shoulders, left hip, left knee, and headaches. He reported that he had experienced a 40-50% improvement in his symptoms, but that he had stopped performing almost all of his household chores due to back pain. I note that the applicant did not mention back pain to Dr. Bhangu, and at the time of that assessment, he was able to complete almost all of his household chores. Due to these discrepancies, and a lack of corroborative medical evidence past January 2021, I am not convinced that the applicant was unable to complete almost all of his household chores due to back pain, as reported to Dr. Baskind.

30The applicant’s pain in his shoulders, left hip, and left knee were described to Dr. Baskind as intermittent, occurring in damp and cold environments. He relieved these pains by stretching or squatting. This does not lead me to believe that the applicant’s pain was severe or debilitating.

31The applicant’s headaches occurred three times per month for 30 minutes. They were relieved by drinking hot tea. No neurological functional limitations or diagnoses were identified. Dr. Baskind opined that from a neurological perspective, the applicant fell within the MIG, and did not require any formal treatment. I note that the applicant never reported experiencing headaches to Dr. Sial or Dr. Uddaraju. The only other mention of headaches in the records before me is from an OCF-18 from Dr. Adam Russell, chiropractor, on October 5, 2020, and in an OCF-1 from July 17, 2020. The OCF-1 lists a number of injuries that the applicant never described to anyone, including injuries to his hand, arms, and upper back. I am accordingly not convinced that the OCF-1 provided an accurate description of his injuries at the time. Even if the applicant was suffering from headaches as a result of the accident, he has not provided evidence that they were severe or debilitating, or caused him any functional difficulties.

32Aside from making one statement about experiencing chronic pain in his submissions, the applicant did not submit any evidence to support that he should be removed from the MIG as a result of chronic pain. The applicant has not been diagnosed with a chronic pain condition. The pain complaints described to the s. 44 assessors do not appear to be severe or debilitating at all. He has been able to return to almost all of his activities of daily living, employment, and housekeeping. His unresolved pain was described as intermittent, and was steadily improving. There are no records before me showing that the applicant sought medical assistance past January 2021.

33For all of the reasons above, I find that the applicant has not met his burden of proof in showing that he has developed chronic pain that would remove him from the MIG.

The applicant’s bursitis does not take him out of the MIG

34The applicant submits that his musculoskeletal complaints and suprapatellar bursitis suggest he may have injuries outside the scope of the MIG.

35The respondent relies on Jones-Linton v. Wawanesa Mutual Insurance Company, 2023 CanLII 91428, which states that bursitis is a form of inflammation or tendinitis, which is captured within the definition of the MIG.

36I agree with the respondent that bursitis is captured within the definition of a minor injury. The applicant has not identified what other musculoskeletal complaints he believes takes him out of the MIG, and based on the records before me, no other diagnosis was made aside from soft tissue injuries. I note that the applicant has not made any reply submissions or attempted to explain why a diagnosis of bursitis does not fit within the MIG.

37The applicant also refers to the ultrasound report, which states: “If there is a clinical concern regarding internal derangement, MRI is recommended”. He submits that the recommendation for an MRI “should also be considered to further evaluate the knee condition”. It is not clear exactly what the applicant is arguing here, but nonetheless the applicant has not gone for an MRI or been referred for one. If Dr. Uddaraju suspected internal derangement of the knee, he likely would have made this referral. I also note that the applicant reported to Dr. Bhangu that his knee symptoms had resolved, which does not lead me to believe that an MRI was warranted. In any event, the applicant has the burden of proving that his injuries warrant removal from the MIG. Mere speculation is not enough.

38I accordingly find that the applicant is not removed from the MIG by virtue of his bursitis, or by a musculoskeletal condition that has yet to be diagnosed.

The applicant does not have a psychological impairment

39The applicant argues that there is compelling medical evidence that justifies the need for an exhaustive psychological assessment. He relies on Pastore v. Aviva Canada Inc., 2012 ONCA 642, which he says sets a precedent for entitlement to benefits beyond the MIG where psychological impairments are evidence. That case deals with whether an insured person had sustained a catastrophic impairment. The MIG is not discussed anywhere in that decision. That case is not applicable to the issue before me.

40The applicant also relies on 18-008335 v. Unifund Assurance Company, 2019 CanLII 101709, stating that a lack of medical documentation from a family physician is not grounds to dismiss the severity of his impairments, given that he sought treatment from other healthcare practitioners who provided continued care. In that case, there were continuous psychological complaints to treating practitioners other than the family physician, and the Tribunal preferred the applicant’s report over the insurer’s s. 44 report.

41I do not accept the applicant’s argument, and do not find that case to be analogous to the one before me. The applicant has not provided any records from the clinics he attended for treatment. The only clinical notes and records before me are from the applicant’s family physician, his single visit at the hospital, and three visits at a walk-in clinic. The only documentation before me from the applicant’s chiropractors are a handful of OCF-18s, an OCF-3 without a list of injuries, and an OCF-24 with boxes checked without elaboration. I have no ability to substantiate the applicant’s claim in this regard without having access to the records he refers to. In any event, it cannot be said that the applicant was not utilizing his family physician as he was being treated elsewhere; he did visit his family physician regularly and the notes are detailed.

42The only indication of psychological difficulties in the clinical notes and records before me was from July 15, 2020, when the applicant reported to Dr. Uddaraju that he was having flashbacks and nightmares, and was afraid to drive. He never complained of psychological difficulties to Dr. Uddaraju after that visit. He was never referred for a psychological assessment or treatment by Dr. Uddaraju. The applicant reported to Dr. Louise Koepfler, s. 44 psychologist, that his sleep was initially disturbed by thoughts of the accident, but this resolved after two months. There are no other indications of nightmares or flashbacks in any documents before me. Dr. Koepfler indicated that the applicant drove routinely to work. When asked about anxiety while driving, he reported thinking about the accident sometimes when he drove, and was more careful. He also reported to Dr. Baskind that although he had returned to his driving habits, he experienced anxiety and avoided the accident location.

43The applicant relies on treatment plans from Dr. Patricia Porco (chiropractor) on November 16, 2020, and Dr. Rick Lindal (psychologist) on December 10, 2020. Dr. Porco indicated that the applicant was experiencing sleep disturbances and stress, and recommended a psychological assessment. Given the applicant’s report to Dr. Koepfler that his sleep was no longer disturbed by thoughts of the accident, it is entirely possible that these disturbances were related to pain rather than psychological difficulties. In addition, the notation of “stress” was not elaborated on. Further, Dr. Porco is a chiropractor and not a mental health professional. For all of these reasons, I afford less weight to her opinion with respect to the need for a psychological assessment.

44Dr. Lindal’s treatment plan states that the applicant reported anxious and depressive symptoms that reportedly interfered with his activities of daily living, social and recreational activities, and interpersonal relationships. He reported sleep disturbances, negative cognitions, and mood disturbances. There are no further details provided. Most of the symptoms described by Dr. Lindal are not corroborated by any other evidence, and in fact the applicant denied experiencing some of the listed symptoms during his assessment with Dr. Koepfler. He did not report any symptoms of depression to her, and said that he occasionally felt anxious but opined that everyone feels that way. He did not describe any psychological symptoms that interfered with his life. I find that Dr. Lindal’s treatment plan is of limited assistance in this analysis.

45The applicant submits that his scores on the testing completed by Dr. Koepfler might indicate a deeper psychological distress that necessitates further evaluation. He states that any inconsistencies between the applicant’s self-reporting and Dr. Koepfler’s testing might warrant a more in-depth psychological assessment. He also argues that Dr. Koepfler’s conclusions should be revisited given his high scores on the Pain Catastrophizing Scale (PCS).

46The respondent submits that the applicant took the scores out of context and ignored Dr. Koepfler’s conclusions. The respondent argues that the applicant is not a medical doctor or psychologist, whereas Dr. Koepfler, who has worked in the field of psychology for 30 years, analysed the scores herself and concluded that they were invalid due to symptom magnification.

47Dr. Koepfler administered a battery of eight tests. She concluded that there was no indication that the applicant suffered from significant psychological impairment directly related to the accident. There were no limitations or restrictions to his activities from a psychological perspective. There was no indication that he required formal psychological treatment. Dr. Koepfler did not diagnose the applicant with any psychological conditions.

48With respect to the applicant’s comment regarding the PCS, Dr. Koepfler found that the applicant’s scores put him in the 100th percentile for ruminations, 100th percentile for magnification, and 97th percentile for helplessness. She opined that these scores suggested that it was an invalid profile due to symptom magnification, because it was not consistent with his presentation and self-report. Throughout the record before me, there is very little evidence of psychological difficulties (aside from some anxiety in a vehicle), and no evidence that the applicant’s psychological symptoms impacted his life in a meaningful way. This is consistent with what the applicant reported to Dr. Koepfler. I accordingly have no reason to disagree with her finding that the PCS scores were not representative of his condition.

49The applicant does not explain why he felt Dr. Koepfler’s report lacked depth. The inconsistencies were explained by Dr. Koepfler to be due to symptom magnification. I have no reason to disagree with Dr. Koepfler’s conclusions, and therefore I do not agree with the applicant that these discrepancies merit further psychological evaluation.

50The applicant also submits that “research has established a strong correlation between high levels of catastrophizing and self-perceived disability, occupational disability, and depression.” The applicant did not explain what research he was referring to, and simply made that statement without any additional evidence. I have no reason to accept this statement.

51Psychological symptoms alone are not enough to remove the applicant from the MIG. The applicant must show that he has an actual psychological impairment and not just symptomatology. The applicant may have been experiencing nightmares and flashbacks immediately after the accident, but this resolved within a short period of time, and Dr. Uddaraju did not make any referrals or recommendations for these symptoms. The only remaining difficulty that the applicant experienced was anxiety while driving sometimes, but this did not warrant a diagnosis, and did not impair the applicant’s ability to drive.

52For all of the reasons above, I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment such that he should be removed from the MIG.

The applicant is not removed from the MIG by virtue of the need for ongoing treatment

53The applicant makes a number of vague submissions that he should be removed from the MIG because he needs ongoing treatment. He does not point to any authority for that proposition. I do not accept that an insured person would be removed from the MIG just because they require additional treatment past the $3,500 limit.

54As I have found that the applicant remains within the MIG, I find that it is not required that I review the treatment plans in dispute to determine if they are reasonable and necessary.

Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

ORDER

56The applicant has not met his onus of proving that his injuries warrant removal from the MIG.

57An analysis of whether the treatment and assessment plans are reasonable and necessary is not required. As no benefits are owing, no interest is payable.