Licence Appeal Tribunal File Number: 22-008606/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:
A minor by her litigation guardian, Narendra, Muddapati
Akanksha Muddapati
Applicant
and
TD General Insurance Company*
Respondent
DECISION
VICE-CHAIR:
Hande Bilhan
APPEARANCES:
For the Applicant:
Arvin Gupta, Counsel
For the Respondent:
Mr. Matthew Samuels, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) arising out of a motor vehicle accident on May 2, 2020. The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties participated in a case conference on April 17, 2023, where the adjudicator ordered a written hearing.
ISSUES IN DISPUTE
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 (“MIG”) limit?
ii. Is the applicant entitled to $2,680.76 for chiropractic services, proposed by Reddy’s Physio Rehab Inc. in a treatment plan/OCF-18 (“plan”) submitted April 7, 2022, and denied April 19, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant’s injuries fall within the MIG.
5The applicant is not entitled to the chiropractic services plan in dispute.
6As none of the benefits in dispute are owing, the applicant is not entitled to interest.
PROCEDURAL ISSUE
Exclusion of Evidence: Clinical Notes and Records (“CNRs) of iScope and other records not previously shared
7The respondent requests that the April 23, 2023, CNRs from iScope concussion clinic be excluded as evidence in the matter as they were filed for the first time on December 6, 2023, significantly later than the final production deadline of August 17, 2023, as set out in the Tribunal’s Case Conference Report and Order (“CCRO”) of April 17, 2023.
8The respondent further submits that the applicant has included evidence in her written submissions which is novel to the applicant as it was not previously produced. These include updated CNRs from Reddy’s Physio Rehab Inc., updated to April 2023, and a prescription summary, dated January 2, 2024.
9The respondent submits that this has prevented its assessors from reviewing and reporting on these documents and the respondent having to respond to the applicant’s submissions without the benefit of having its medical professionals reviewing the entirety of the documentary record. For these reasons, the respondent submits that the delay in receipt of the applicant’s submission in addition to the late delivery of this evidence has prejudiced the respondent. They submit that it is procedurally unfair for the Tribunal to consider said evidence of the applicant.
10The applicant did not provide reply submissions and, as a result, did not address the respondent’s request to exclude the aforementioned CNRs as evidence for the hearing.
11The CCRO of April 17, 2023, clearly set the final production deadline as 120 days after the case conference. Therefore, all final productions were due on or before August 15, 2023. I note that the applicant’s submission clearly shows that they received the CNRs from iScope on April 23, 2023, almost 8 months before she shared them with the respondent.
12Rule 9.2 requires parties to disclose their evidence at least 10 days before the hearing or when ordered by the Tribunal. Rule 9.4 states that if you do not comply with the disclosure requirements you may not rely on a document or thing as evidence without the consent of the Tribunal.
13The written hearing notice issued on May 11, 2023, clearly notified the parties that documents filed after the deadlines ordered by the Tribunal may not be considered by the adjudicator hearing the matter.
14Despite being made aware of the Rules, and despite having the documents in her possession the applicant did not share the CNRs with the respondent, depriving them of the opportunity to properly assess them.
15The applicant also did not comply with the submission deadline which was set for 30 days before the hearing date, for December 27, 2023. She did not file her submission until January 4, 2024, leaving the respondent with only seven days to prepare their response.
16I agree with the respondent that the applicant filed her submissions significantly late and filed evidence months later than was ordered by the Tribunal. The late production of the applicant’s documents and late submissions did not provide opportunity for the respondent’s assessors to review and provide any updates or an addendum report. However, when weighing procedural fairness in this instance, I find that excluding the CNRs of iScope could cause prejudice to the applicant as concussion can be a reason why an applicant may be removed from the MIG and that is the key to the rest of the application before me. I find that the documents are relevant to the decision. I will therefore admit them into evidence and review all of the evidence and submissions tabled with the Tribunal that are relevant to the issues in dispute. However, I give this evidence limited weight for the following reasons:
i. The respondent could not assess the report and provide an expert opinion on the same; and
ii. No other contemporaneous reports were provided to support the report, including a diagnosis by her family physician.
ANALYSIS
Minor Injury Guideline (MIG)
17I find that the applicant’s injuries fall within the MIG.
18Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
19An insured person 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 their 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.
20The burden of proof rests with the applicant to prove that her injuries fall outside the MIG.
21The applicant argues that she should be removed from the MIG because of the concussion clinic diagnosis, the numerous complaints of pain, and the severity of the injuries her brother sustained in the same accident.
22The respondent counters that the applicant has not provided any evidence of a pre-existing condition which would prevent her from achieving maximal recovery within the MIG, that following the collision she underwent a series of diagnostic testing which showed no abnormalities, and she underwent X-rays of the chest, pelvis, right hip, right knee and right tibia/fibula, none of which identified any bony, articular or soft tissue abnormality.
23The respondent further submits the applicant has been seen by her family physician, Dr. Sivasubramaniam, in relation to her ongoing pain complaints; however, Dr. Sivasubramaniam has not diagnosed the applicant with any musculoskeletal injuries as a result of the subject accident.
24The respondent relies on the CNRs of the applicant’s family physician reports of the emergency department where the applicant attended post accident, and the insurer examination report, to conclude that the applicant’s injuries fall within the MIG.
25I have reviewed the evidence and submissions of the parties. The applicant has not proven on a balance of probabilities that she can not achieve maximal recovery within the MIG limits and that her injuries fall outside the MIG.
26Following the collision, the applicant attended the emergency room (“ER”) of Mackenzie Health Centre and underwent a series of diagnostic imaging and x-rays. These showed no abnormalities nor any bony, articular or soft tissue abnormalities.
27The applicant has been seen by her family physician routinely but there are no records of her complaining of post accident-related symptoms or ongoing pain complaints until July 2021 and no mention of a potential concussion until January 2022.
28Her family physician has not diagnosed her with any musculoskeletal injuries as a result of the accident. She has also not diagnosed her with chronic pain.
29The mild concussion diagnosis seems to be based on subjective self reported symptoms of the applicant and no contemporaneous reports and physician diagnoses was provided, other than the report by iScope which was produced with significant delay and no opportunity for expert scrutiny.
30The physical exam and neurological testing performed by Linda C. Johnson, Nurse Practitioner at iScope states the following:
“The patient appeared to have normal attention and language including normal fluency and comprehension. Cranial nerve examination 2-12 intact. Visual fields with hand comparison and finger counting is normal. No anisocoria was seen. Fundi were normal. Extraocular movements were full. No nystagmus. Facial strength was normal. No dysarthria. Motor examination reveals normal tone, bulk, and power in the upper and lower extremities, both proximally and distally with 2+ reflexes and down going toes. There was no atrophy or fasciculations seen. There is no Pronator drift. Hoffman sign is not present. Sensory examination revealed normal sensation to temperature and vibration proximally and distally. Coordination testing with finger to nose testing and alternating hand movements was normal. Gait testing was normal. The patient is able to tandem walk. Romberg test was negative.”
31The CT scan of the head conducted on May 3, 2020, shortly after the accident, was normal. The CT of her cervical spine on the same day reported no fracture.
32No further neurologist appointment was made despite the recommendation of Ms. Johnson. Nor were there any further MRIs or CT scans ordered by the family physician or otherwise.
33I do not accept the applicant’s submission that the conclusions of Dr. Edwin Urovitz’s report are unsupportable on the medical evidence as they don’t take into consideration the report of iScope. I agree with the respondent that the insurer’s examiner did not have the opportunity to view and address the report of iScope as these were provided to the respondent significantly later than the production deadline and weeks before the final submission deadline.
34I also do not accept the submission that the applicant’s injuries fall outside the MIG as the applicant was involved in a high impact accident with her brother who sustained serious injuries. First l, I have no evidence of the severity of the brother’s injuries. Second, two people can be in the same accident and suffer completely different outcomes. Third, the impact of the accident was on the driver’s side with the brother driving the vehicle. So, it would also make sense if the brother sustained more serious injuries. His injuries are not related to the injuries of the applicant.
35The applicant further submits that her recovery process was hindered by the attention required for her brother’s recovery and the applicant being a minor and not being able take herself to attend treatment. However, the evidence before me does not support these claims. There are extensive records of the parents attending appointments with the applicant’s family physician and involved in the applicant’s physical and emotional health over the years, including post accident.
36I do not find that the applicant has demonstrated that she is suffering from chronic pain leading to functional impairment or concussion related issues as a result of the accident. The applicant did not establish why she would be unable to achieve maximal recovery within the MIG limits.
37I find that the applicant suffers from injuries that are predominantly minor in nature as defined in the Schedule. She did not establish, on a balance of probabilities, that her injuries fall outside of the MIG. Therefore, she remains within the MIG and is subject to its $3,500.00 limit on treatment.
38As the applicant’s injuries fall within the MIG, I find that the applicant is not entitled to the chiropractic services plan in dispute, beyond any remaining MIG limits.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is payable.
ORDER
40For the reasons set out above, I find that:
i. The applicant’s injuries fall within the MIG.
ii. The applicant is not entitled to the chiropractic services plan in dispute.
iii. As none of the benefits in dispute are owing, the applicant is not entitled to interest.
Released: September 26, 2024
Hande Bilhan
Vice-Chair