Licence Appeal Tribunal File Number: 22-012764/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:
Gurjeet Deol
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Davin Tamber, Counsel
For the Respondent:
Athena Chan, Counsel
HEARD:
By way of written submission
OVERVIEW
1Gurjeet Deol, the applicant, was involved in an automobile accident on March 14, 2022, 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, Intact Insurance Company, 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 $2,144.93 for a psychological assessment proposed by Chinguacousy Physiotherapy and Foot Clinic in a treatment plan dated July 7, 2022?
iii. Is the applicant entitled to interest on any overdue payments of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the respondent entitled to costs in the amount of $500.00 because the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith?
3Issues ii) and iii) b) as set out in the July 14, 2023 Case Conference Report and Order (CCRO) were withdrawn by the applicant.
RESULT
4I find that the applicant’s injuries are predominantly minor and therefore the applicant is not removed from the MIG. The applicant is not entitled to the treatment plan, interest, or an award.
5I also find the respondent is not entitled to costs.
PROCEDURAL ISSUES
The respondent’s request for costs
6In its written hearing submissions, the respondent asked for costs in the amount of $500.00.
7Rule 19.2 of the License Appeal Tribunal Rules, 2023 (Rules) provides that a party may make a request for costs in writing or orally at a case conference or hearing, at any time before the decision or order is released. The applicant made no submissions about the request to add costs as an issue in dispute.
8As the respondent requested costs as part of its written hearing submissions and prior to the decision in this matter, I find that the respondent has requested costs in accordance with Rule 19.2 and, therefore, I order the following issue to be added to the issues in dispute:
v. Is the respondent entitled to costs in the amount of $500.00 because the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith?
The respondent’s request to exclude Dr. Kahlon’s clinical notes is denied
9The respondent’s request to exclude Dr. Kahlon’s clinical notes and records from May 14, 2023 to October 11, 2023 from the hearing evidence is denied.
10In its submissions, the respondent requested that the clinical notes and records (CNRs) for the period of May 14, 2023, to October 11, 2023, from Dr. Pundeep Kahlon, family physician, of Storybook Medical Clinic be excluded from evidence. According to the respondent, these CNRs were not produced by the applicant prior to the filing of written submissions and therefore, should not be considered.
11The applicant disagrees and asks that the CNRs not be excluded. In support of the applicant’s position, they rely on a chain of emails dated September 15, 2023, and October 24, 2023, to demonstrate that the materials were provided to the respondent prior to the written hearing submissions.
12I find that the CNRs were provided via email on October 24, 2023, to the respondent. As a result, the respondent’s request to exclude Dr. Kahlon’s clinical notes and records for this period is denied.
ANALYSIS
Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?
13I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.
14Section 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.”
15An insured may be removed form 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 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.
16In this matter, the applicant submits that they are outside of the MIG because they sustained a psychological condition as a result of the accident.
Does the applicant have psychological injuries that would remove her from the MIG?
17I find the applicant has not proven on a balance of probabilities that she sustained a psychological condition as a result of the accident such that she is removed from the MIG on this basis.
18The applicant relies on the s. 44 reports prepared by Dr. Sabrina Ming-Wai Tu, physician, dated February 7, 2023. The applicant’s position is that Dr. Tu opined that the applicant is suffering from post-accident anxiety, driving anxiety, low mood, and sleep disturbance/insomnia as a direct result of the accident.
19In the report, Dr. Tu stated the applicant “has not been able to do as much of the chores at home as she did prior to the subject MVA due to pain symptoms …”. Dr. Tu’s report states, “From a musculoskeletal perspective [she] has likely suffered from a right shoulder strain, a lumbar strain, and soft tissue injury to her left lower leg as a direct result of the subject MVA … [she] has sustained uncomplicated soft tissue injuries …”. Dr. Tu’s report was completed within 11 days months of the subject accident and visit with her family physician.
20Dr. Tu’s additional reports dated March 30, 2023, and January 18, 2024, state that the applicant sustained soft tissue injuries and minor injuries from musculoskeletal perspective.
21I find Dr. Tu’s reports address the applicant’s physical pain and provided no assessment of any psychological issues. The report also states Dr. Tu “will leave further assessment of her psychological symptoms to the appropriate mental health specialist.” For this reason, I do not place weight on Dr. Tu’s reports to support a finding that the applicant has suffered a psychological impairment.
22The applicant submits that Dr. Kahlon prescribed her psychotropic medication and relies on Dr. Kahlon’s CNRs for the period of March 15, 2022, to October 12, 2023, the prescription summaries from Guardian Storybook Pharmacy and Rexall for the period of March 15, 2019, to June 6, 2023. Dr. Kahlon noted the MVA and driving anxiety on three visits (January 19, 2023, March 16, 2023, and May 13, 2023). “Anxiety” was noted on at least 4 visits (January 19, 2023, May 13, 2023, October 12, 2023, March 16, 2023). The applicant was referred to a pain clinic on May 13, 2023. The respondent states Dr. Kahlon’s clinical notes were not produced by the applicant prior to filing and the records should not be considered. However, I find the applicant provided the records by via email and have considered the records. Dr. Kahlon relied on the applicant’s self-reporting and the notes do not refer to psychometric testing and did not provide reasons for the prescriptions. The applicant did not provide evidence to corroborate psychological issues.
23The applicant stated that the s. 44 insurer’s examination report prepared by Dr. Howard Waiser, psychologist, dated August 29, 2022, is aged and should not be considered. I am not persuaded by this as the applicant did not provide sufficient explanation of how this impacts the applicant’s ability to meet their onus. The applicant states Dr. Waiser’s report does not provide a psychological diagnosis and provides contradictory information questioning the credibility and reliability of the report and this is addressed further below.
24The respondent states that the applicant’s psychological injuries are sub-clinical and fall within the MIG. The respondent relies on the CNRs of Dr. Kahlon and the March 15, 2022 diagnosis of soft tissue injury and sprains. Dr. Kahlon’s CNRs are consistent with the Disability Certificate (OCF-3) dated April 5, 2022 prepared by Dr. Sarathy. Dr. Sarathy lists insomnia, malaise and fatigue with an indication for a psychological exam. It would also be outside the scope of Dr. Sarathy’s practice area as a chiropractor to render a diagnosis of psychological injuries.
25The respondent states the s. 44 psychologist assessment dated August 29, 2022 prepared by Dr. Waiser conducted four psychometric tests. Dr. Waiser stated the applicant did not suffer from “clinically significant psychological impairment” and this would not remove the applicant from the MIG. Dr. Waiser’s report states the applicant is experiencing emotional distress and does not warrant a psychological diagnosis.
26Dr. Waiser reviewed the reports from Ms. Anna Kozina, psychology associate, Dr. Sarathy, chiropractor, CNRs from Storybrook Medical Clinic, and the related OCF-3 and OCF-18. In his report Dr. Waiser states the applicant self reported her anxiety, fear, low energy, sleep issues, and pain. The applicant also disclosed seeing her family physician and being prescribed pain medication.
27Dr. Waiser relied on several testing measures including the Vernon-Mior and Oswestry Pain Questionnaires, the Beck Anxiety Inventory and the Beck Depression Inventory – II, the Multidimensional Pain Inventory, the Pain Patient Profile, the Test of Memory Malingering. These tests are comprised of various dynamics and interpreted along a variety of scales. Dr. Waiser goes on to report that “no further investigations or therapeutic interventions are deemed warranted”. I find Dr. Weiser conducted a thorough and appropriate analysis of the applicant’s psychological state and I am persuaded by Dr. Waiser’s assessment that the applicant shows “mild emotional distress”, and it is subclinical and does not warrant a psychological intervention.
28The applicant raises a question of credibility and reliability of Dr. Waiser’s report. Dr. Waiser’s report presents the results of 6 tests. Each test is explained, and the doctor provides his assessment with the results. The applicant’s question of credibility is based on two statements by Dr. Waiser where he states for one test that the applicant’s responses “are not indicative of emotional distress” and in another test he states the applicant “does experience emotional distress”. Upon further reading of the report, it becomes clear that each test yields a different score and while it may be true that the applicant is experiencing “emotional distress” in some tests it does not reach the threshold of psychological intervention according to Dr. Waiser’s overall assessment. While the individual test results may yield differing results the overall conclusion from Dr. Waiser’s report remains. I find Dr. Waiser’s report is internally consistent, and the applicant is referring to two different test results, one for anxiety/depression and another for pain.
29Dr. Waiser’s report stated, “her injury is considered a minor injury and the applicant’s condition does not warrant a psychological diagnosis as a result of the subject accident”.
30The applicant states psychotropic medication was prescribed by the family physician and submits Dr. Kahlon’s CNRs for the period of March 15, 2022 to October 12, 2023, and prescription summaries from Guardian Storybrook Pharmacy and Rexall for the period of March 15, 2019 to June 6, 2023. Dr. Kahlon noted the applicant’s injuries as soft tissue and sprains. Dr. Kahlon noted the accident and driving anxiety on three visits, noted “anxiety” on seven visits, and referred the applicant to a pain clinic. Dr. Kahlon relied on the applicant’s self-reporting and the notes do not refer to psychometric testing and did not provide reasons for the prescriptions. The applicant did not provide evidence to corroborate psychological injuries or to establish functional impact.
31Before turning to the s. 44 insurer’s examination, the applicant states the CNRs of Dr. Kahlon for the period of May 12, 2022 to July 18, 2022 were not provided to the psychologist. While I appreciate there may have been an impact due to this, I am not persuaded to dismiss the report in its entirety. The psychologist’s document list and relevant documentation reviewed includes substantial and relevant materials and the onus remains with the applicant to provide further compelling evidence in its place.
32I find that the applicant does not suffer a psychological impairment that would remove her from the MIG.
The applicant is not entitled to the proposed psychological assessment
33As I have found that the applicant is not removed from the MIG and the parties agreed the MIG limits have been exhausted as of the date of their written submissions, the applicant is not entitled to the proposed psychological assessment.
Interest
34As no benefits are owing, no interest is payable under s. 51 of the Schedule.
Award
35The 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. I do not find the respondent unreasonably withheld or delayed the payment of benefits.
36As no benefits are owing, there is no basis upon which to grant an award.
The respondent’s request for costs is denied
37I find that the respondent is not entitled to costs in this matter.
38Rule 19.1 of the Rules states that the Tribunal may award costs where a party believes that “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
39While the respondent requested $500.00 in costs, the respondent did not make any direct submissions in support of its costs request. As such, I find the respondent has proven on a balance of probabilities that the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith in this matter such that an award for costs should be made.
ORDER
40As a result of the above and on a balance of probabilities, I find that:
i. The applicant has not demonstrated removal from the MIG is warranted.
ii. The applicant is not entitled to the disputed treatment plans.
iii. As there are no overdue benefit payments, the applicant is not entitled to interest.
iv. There is no award.
v. The respondent is not entitled to costs.
vi. The application is dismissed.
Released: March 3, 2025
Aric Bhargava
Adjudicator