Licence Appeal Tribunal File Number: 22-008580/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:
Ravathyrunal Nagularajah
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Arvin Gupta, Counsel
For the Respondent:
Adrienne Bramson, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ravathyrunal Nagularajah, the applicant, was involved in an automobile accident on October 16, 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 the benefits by the respondent, Economical Mutual Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The preliminary issue to be decided is:
i. Is the applicant barred from proceeding with their claim for benefits because the applicant failed to submit information that was requested pursuant to s. 33 of the Schedule?
ISSUES
3The 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 limit?
ii. Is the applicant entitled to $1,594.32 for chiropractic services, proposed by Dynamic Health and Sports Injury Clinic in a treatment plan (“plan”) submitted on September 3, 2020?
RESULT
4For the preliminary issue, I find the applicant is not statute barred from proceeding with their claim and the hearing may proceed.
5The applicant has not proven on a balance of probabilities that her injuries are outside the MIG. As the parties agree that the MIG limits are exhausted, it is not necessary to consider whether the plan for chiropractic services is reasonable and necessary.
6The application is dismissed.
PROCEDURAL ISSUES
The March 14, 2023 Treatment Plan is not properly before the Tribunal
7The case conference report and order dated March 24, 2023 listed two substantive issues in dispute, one of which included a treatment plan for chiropractic services submitted on September 3, 2020. No other treatment plans were listed as being in dispute.
8The applicant, however, made submissions on a treatment plan dated March 14, 2023 for physical rehabilitation in the amount of $2,200.00 completed by Dr. Frederick Levenston, chiropractor, and submitted as evidence a treatment plan dated March 14, 2023 by a Dr. J.A. Nathason, chiropractor, for a functional impairment assessment in the amount of $2,200.00.
9In my view, the issue of the treatment plan dated March 14, 2023 is not properly before the Tribunal. Neither party filed a motion to add the treatment plan dated March 14, 2023 to this proceeding. As such, the Tribunal will not consider the issue and will focus its analysis on the issues that are outlined in the case conference report and order.
The documentation from Scarborough Hospital and Dr. Lavanya Dinesh is admitted into evidence
10In its hearing submissions, the respondent requests that Scarborough Hospital records and the clinical notes and records of Dr. Dinesh not be considered as they were not provided to the respondent prior to the final production deadline of July 21, 2023.
11The applicant’s evidence from Scarborough Hospital and Dr. Lavanya Dinesh is admitted into evidence, but its late disclosure will be considered when determining the weight it will be given.
12The case conference report and order ordered that by no later than 120 calendar days after the case conference (July 21, 2023), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.
13Although the applicant did not make any submissions regarding the timing of these documents or why they should be considered given the missed production deadlines, I am exercising my discretion and admitting the documents from Scarborough Hospital and Dr. Lavanya Dinesh into the hearing evidence. I am allowing the documents to be admitted because the records are relevant to the issues in dispute. The applicant attended Scarborough Hospital after the accident and Dr. Dinesh is her family physician.
14The late disclosure of the documents, however, will be considered when determining the weight it will be given.
15The hospital records in issue are dated April 18, 2023. The clinical notes and records of Dr. Dinesh are dated May 23, 2023. Since these documents were in the applicant’s possession on April 18, 2023, the applicant could have produced them far earlier than December 12, 2023. The fact that the applicant only produced them to the respondent with their submissions prejudiced the respondent who only had 14 days to respond to those to abide by their deadline for submissions of December 22, 2023. If the applicant had intended to use new documents after the production deadlines, they should have introduced them at the earliest opportunity which I find they did not do.
16The respondent did never-the-less address the substance of the late-filed evidence. The respondent has not made submissions on prejudice that would result if the applicant’s documents were included. I will take the evidence into account but determine the weight to accord to them which will be addressed below.
The applicant’s submissions are admitted into evidence
17The case conference report and order ordered that the applicant provide its written submissions by no later than 30 calendar days before the written hearing (December 6, 2023).
18The applicant provided her submissions to the respondent on December 12, 2023, after 5:00 p.m. Since the applicant’s submissions were due on December 6, 2023, the respondent had less time to review the evidence and file responding submissions.
19In its hearing submissions, the respondent requests that the applicant’s submissions not be considered because they were not delivered to the respondent 30 days before the written hearing date of January 5, 2024.
20I will consider the applicant’s submissions but their late delivery will be considered.
21Although the applicant did not make any submissions to explain the reason the submissions were filed late or address any prejudice to the respondent, I am exercising my discretion and including the applicant’s submissions in the hearing record. I am allowing the applicant’s submissions to be considered because the respondent has made no submission that the applicant abandoned the proceeding. Despite the lateness of the applicant’s submissions, it did not result in a breach of procedural fairness or significant prejudice to the respondent.
22The respondent did provide its written submissions in accordance with the case conference report and order. The respondent has not made submissions on prejudice that would result if the applicant’s submissions were included. I will take the submissions into account.
ANALYSIS
Preliminary Issues
The application is not statute-barred from proceeding with the hearing
23I find that the applicant is not statute-barred from proceeding with this application due to non-compliance with section 33(1).
24Section 33 of the Schedule states that an insured person shall, within 10 business days, provide the insurer with any information reasonably required to assist the insurer in determining entitlement to a benefit. Pursuant to s. 33(1), an applicant is required to provide any information reasonable required to assist the insurer in determining the applicant’s entitlement to a benefit after receiving a request from the insurer.
25Section 33(6) of the Schedule states that an insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s. 33(1).
26The respondent submits that the Tribunal does not have jurisdiction to determine the applicant’s substantive entitlement to benefits given the application of s.33(6) of the Schedule. The respondent’s position is that the applicant has not complied with its s. 33 requests dated December 19, 2019 and October 27, 2020 for the decoded OHIP summary and the clinical notes and records of her family physician. The respondent submits that the applicant did not provide relevant information pursuant to s. 33(1), therefore a statutory requirement before proceeding to the Tribunal has not been met.
27Section 55 of the Schedule identifies circumstances when the applicant is barred from applying to the Tribunal for resolution of a dispute. Section 55 does not prohibit an applicant from proceeding with a claim for non-compliance with section 33.
28I find that the applicant is not statute-barred from proceeding with this application due to non-compliance with section 33(1). A failure to comply with the obligations under section 33 relieves the respondent of its obligation to pay for the benefits during the period of non-compliance. It is not a bar to a hearing and does not fall under s.55(1). As a result, the applicant may proceed to a hearing.
Substantive Issues
The applicant did not demonstrate that she sustained accident-related injuries that warrant removal from the MIG
29Section 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 in accordance with the MIG. 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.” An 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 may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
30The applicant submits that she should be removed from the MIG based on the following accident-related physical and psychological injuries:
a. her diagnosis of chronic pain;
b. her migraine headaches, and;
c. her anxiety disorder and depressed mood.
31To this end, the applicant relies on the clinical notes and records of Dr. Dinesh, various hospital visits and the records of Dr. Susan Mae Laidlaw of Northumberland Hills Hospital.
The applicant has not established accident-related chronic pain for removal from the MIG
32The applicant submits that she should be removed from the MIG on account of her accident-related chronic pain, and migraine headaches. The applicant points to various emergency room visits after the accident regarding cough, chest pain, leg pain and headaches. he applicant makes no submissions that her pre-existing conditions are grounds for her removal from the MIG.
33The applicant points to hospital visits dated March 19, 2020 for cough and COVID testing, October 2, 2020 for headaches, February 21, 2021 for leg pain, December 3, 2021 for lower extremity pain and December 29, 2021 for headaches, and cardiac-related complaints. The applicant also refers to a visit dated December 30, 2021 with Dr. Susan Mae Laidlaw at Northumberland Hospital diagnosing the applicant with migraine headaches.
34However, the clinical notes and records of Dr. Ernest Linzon, family physician at Malvern Medical Centre includes a referral to a neurologist, Dr. Marek Gawel for headaches before the accident on January 4, 2019. he applicant makes no submissions to explain the difference between her pre- and post-accident headaches and chronic pain.
35On reviewing the applicant’s hospital records and clinical notes and records of her treating physicians, there is a significant pre-accident medical history, including chest pain, syncope, severe migraine headaches, chronic pain and lumbar disc protrusion with stenosis and depression. The applicant made similar complaints before the accident regarding a prior motor vehicle accident on December 1, 2017, including concussion and chronic pain with stenosis in the lumbar spine.
36The applicant does not point to a diagnosis of accident-related chronic pain or psychological impairment by any of her treating doctors.
37In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the clinical noes and records of the applicant’s treating physicians, and the IE report dated August 15, 2023 of Dr. Mohamed Khaled, which indicates that the applicant sustained uncomplicated soft tissue injuries with a good prognosis for complete functional recovery.
38The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain to warrant removal from the MIG. The respondent further submits that the applicant has provided no evidence that she meets 3 of the 6 criteria in the American Medical Association Guides for functional impairment to establish a diagnosis of chronic pain syndrome.
39I find that the applicant has not met her burden of establishing a diagnosis of chronic pain with functional restrictions or migraine headaches as a result of the accident warranting removal from the MIG.
The applicant has not established an accident-related psychological impairment for removal from the MIG
40The applicant submits that she should be removed from the MIG on account of her accident-related psychological injuries. The applicant also made complaints before the accident regarding depression and severe headaches. The applicant makes no submissions that her pre-existing conditions would prevent her from achieving maximum recovery under the MIG limit.
41The respondent submits that the applicant has not provided medical documentation in support of a psychological impairment to warrant removal from the MIG.
42The applicant relies on an OCF-18 dated March 14, 2023 by Dr. J.A. Nathanson which listed anxiety disorder as an accident-related injury.
43I find that the applicant has not proven on the balance of probabilities that she suffers from an accident-related psychological impairment warranting removal from the MIG.
44Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of any consistent findings in support of a chronic pain or psychological diagnosis.
The applicant is not entitled to chiropractic services
45I find that the treatment plan in dispute is not payable.
46The applicant seeks payment for a plan in the amount of $1,594.32 for chiropractic services at Dynamic Health and Sports Injury Clinic.
47Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plan is reasonable and necessary.
ORDER
48For the reasons set out above, I find that:
i. The applicant is not barred from proceeding with her claim for benefits at the Tribunal pursuant to s.55 of the Schedule.
ii. The applicant has failed to demonstrate that removal from the MIG is warranted. There is no medical evidence in support of an accident-related chronic pain, migraine headaches or psychological diagnosis. Therefore, it is not necessary to consider whether the plan for chiropractic services is reasonable and necessary.
iii. The application is dismissed.
Released: September 26, 2024
Lisa Holland
Adjudicator