St Nicolous v. Intact Insurance Company
Licence Appeal Tribunal File Number: 23-002528/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:
Soosaipillai St Nicolous
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Yong
APPEARANCES:
For the Applicant: Tal Eshel, Counsel
For the Respondent: Farzana Merchant, Counsel
HEARD: By way of written submissions
OVERVIEW
1Soosaipillai St Nicolous, the applicant, was involved in an automobile accident on March 25, 2018, 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 (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 $2,250.53 psychological assessment, proposed by Scarborough Rehabilitation Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated July 3, 2018, and denied on August 28, 2018?
iii. Is the applicant entitled to $1,650.00 chiropractic services, proposed by Scarborough Rehabilitation Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated July 27, 2018, and denied on September 14, 2018?
iv. Is the applicant entitled to $1,989.85 chronic pain assessment, proposed by Scarborough Rehabilitation Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated April 8, 2019, and denied on June 10, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s accident-related injuries are predominantly minor as defined under the Schedule. He remains subject to the treatment limit of the MIG.
4The applicant is not entitled to payment of any disputed plans and interest.
PROCEDURAL ISSUES
Request to exclude the applicant’s late served written submissions is denied
5The respondent submits that the applicant served and filed his submissions late, which is a breach of the Case Conference Report and Order dated October 26, 2023 (“CCRO”). Specifically, it submits that the applicant served these documents on May 20, 2024 (i.e. 5 days late). The respondent requests that the applicant’s written submissions be struck on the basis of procedural fairness and natural justice, as it did not have adequate time to prepare its submissions for the hearing.
6The applicant did not file any reply submissions and therefore is silent on this issue.
7While I have the authority under Rule 9 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (“Rules”) to strike out a party’s late submissions or evidence, I must also consider the prejudice it may cause to each party, as well as the consequences and relevance of these documents to the issues in dispute.
8I find that the respondent was able to submit its submissions by the deadline, and it has not provided evidence in support of its claim that it did not have adequate time to prepare, such as any motion requests to the Tribunal requesting an extension of time prior to the hearing.
9I find that striking out the applicant’s written submissions would cause significant prejudice to the applicant. The applicant bears the onus to prove that his injuries fall outside of the MIG and entitlement to the treatment plans in dispute.
10For the above reasons, I decline to grant the respondent’s request and will consider the applicant’s written submissions.
Request to exclude the applicant’s late-served productions is denied
11The respondent submits that the applicant breached the CCRO by serving and filing his productions late. The CCRO states that the final production deadline was December 16, 2023 (i.e. 60 days from the case conference). It submits that the applicant served the following productions on May 1, 2024 (i.e. 137 days late):
i. CNR from Dr. Damiano Serio, GP, from June 26, 2018 to March 12, 2023;
ii. Letter dated January 20, 2024 by Dr. Serio;
iii. Letter dated January 19, 2024 from Scarborough Rehabilitation Clinic; and
iv. Decoded OHIP Summary from October 18, 2018 to April 22, 2024.
12The respondent requests that the abovementioned productions be struck out on the basis of procedural fairness and natural justice, as it did not have adequate time to prepare for the hearing, pursuant to Rule 9 of the Rules, or alternatively, if the Tribunal accepts the productions, then to assign the appropriate weight noting the non-compliance with the CCRO and prejudice on the respondent. Further, it submits that the applicant was in possession of the decoded OHIP summary as early as April 2023. Similarly, it submits that the CNR of Dr. Serio were in the applicant’s possession since January 2024.
13As the applicant did not file any reply submissions, he is silent on this issue.
14The respondent did not provide evidence to show when these productions were served. The respondent’s allegations of late-served productions were not substantiated with evidence, such as producing the email correspondence between the parties, and evidence showing that the applicant received the decoded OHIP summary in April 2023 as alleged. Submissions must be supported by evidence.
15Given the above reasons, I decline to grant the respondent’s request and will accept the applicant’s late-served productions.
ANALYSIS
The applicant’s accident-related injuries are predominantly minor and are within the treatment limits of the MIG.
16I find the applicant’s accident-related injuries are predominantly minor and are within the treatment limits of the MIG.
17Section 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.”
18An 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 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.
19The applicant submits that he should be removed from the MIG on the grounds of chronic pain and psychological impairment as a result of the accident. He submits that, prior to the accident, he had no diagnosable medical conditions, but he was diagnosed post-accident with a chronic pain syndrome by Dr. Igor Wilderman, medical doctor, and an adjustment disorder, by Dr. Harinder Mrahar, psychologist.
20The applicant relies on the Disability Certificate/OCF-3 dated March 27, 2018, completed by Dr. Majid Arabkhari, chiropractor; a Chronic Pain Medical Assessment report dated November 12, 2019, by Dr. Wilderman; a Psychological Assessment report dated December 20, 2019 by Dr. Mrahar; and the clinical notes and records (“CNR”) and a letter dated July 30, 2023 by Dr. Damiano Serio, family doctor, and CNR from Scarborough Rehabilitation Clinic.
21The respondent submits that the applicant’s accident-related injuries are minor injuries that are treatable within the MIG. It relies on the Insurer’s Examination (“IE”) reports: dated August 22, 2018, by Dr. Mbongani Kabila, general practitioner; dated August 3, 2018, by Dr. David Prendergast, psychologist; and dated May 14, 2019, by Dr. Sabrina Ming-Wai Tu, general practitioner. All of these IE reports address the MIG and the disputed treatment plans.
Chronic Pain
22I find that the applicant has not proven, on a balance of probabilities, that he suffers from chronic pain that warrants removal from the MIG.
23The applicant relies on Dr. Serio’s chronic pain diagnosis on March 7, 2023, as well as Dr. Wilderman’s diagnosis of chronic pain syndrome (in his report dated December 20, 2019), to support his position that he should be removed from the funding and treating limits of the MIG.
24I find that the applicant made limited accident-related complaints to Dr. Serio following the accident. The applicant only saw Dr. Serio on 4 occasions between 2018 and 2023 - on March 27, 2018, May 16, 2018, March 7, 2023 and March 12, 2023. There is a considerable gap between his 2018 and 2023 appointments, which leads to the probable conclusion that he did not have any accident-related complaints that required him to seek medical advice from Dr. Serio during this time.
25I find Dr. Serio’s diagnosis of chronic pain in relation to the applicant’s left shoulder on March 7, 2023, is unrelated to the accident. This was the only visit where Dr. Serio diagnosed the applicant with chronic pain. The applicant made no complaints of any left shoulder injury or pain associated with the accident during the first post-accident visit with Dr. Serio on March 27, 2018 (i.e. two-days post-accident) or during his treatments with Mr. Majid, the chiropractor at Scarborough Rehabilitation Clinic, in the four months immediately post-accident. The applicant only made complaints of back and right shoulder pain resulting from the accident. Dr. Serio diagnosed the applicant with “AP Pain s/p MVA”, and he recommended a right shoulder x-ray, right shoulder ultrasound and physiotherapy for right elbow pain, left leg pain and lower back pain. He did not prescribe any pain medication and advised the applicant to return to the clinic for a “[follow-up] if not settling”.
26I was not referred to any subsequent CNR which document any follow-up appointments regarding accident-related medical complaints with Dr. Serio in the months immediately following the accident. This evidence does not support the applicant’s position that he continued to suffer from chronic pain as a result of his accident-related injuries. Although Dr. Serio referred the applicant to undergo an x-ray and ultrasound of his right shoulder, I was not referred to any diagnostic reports.
27I then find that the visit with Dr. Serio on May 16, 2018 is unrelated to the subject accident. During this visit, the applicant complained about “some dizziness and occasional vomiting for the past few weeks”. He made no complaints about his accident-related injuries. Dr. Serio observed and noted that the applicant “looks well, NAD and gait was normal”. Given that the accident occurred in March 2018 (i.e. 2 months prior), and there was no reference to the accident in this CNR entry, I find that the applicant’s medical complaint during this visit is unrelated to the accident.
28Further, I give less weight to Dr. Serio’s letter dated July 30, 2023, where he opined that the applicant’s accident-related injuries are or have become chronic, because it was issued over 5 years post-accident. In this letter, Dr. Serio stated that “[the applicant] sustained a cervical strain and bilateral shoulder strains as a direct result of his motor vehicle accident on Mar 25, 2018”. This was the only diagnosis made in the letter. I find that these diagnoses fall squarely within the definition of a “minor injury” pursuant to the Schedule.
29In summary, I am not persuaded by Dr. Serio’s evidence because he only recommended physiotherapy and did not prescribe any pain medication to the applicant and did not refer the applicant to other specialists, such as an orthopaedic surgeon, to obtain further medical opinions to explore pain management or treatment options.
30The applicant further relies on Dr. Wilderman’s report that he suffers from chronic pain that would warrant removal from the MIG. However, I find Dr. Wilderman’s report to be unpersuasive because it is unsupported by contemporaneous medical evidence from Dr. Serio or other treating medical professionals.
31Dr. Wilderman was not given any diagnostic reports for review during his assessment of the applicant. During this assessment the applicant made complaints of bilateral shoulder pain, neck pain, lower back pain, right knee pain, right wrist pain, headaches and dizziness. As mentioned above, the applicant only made complaints of back pain and right shoulder pain in his first post-accident visit with Dr. Serio. In my opinion, his left shoulder pain, right knee pain and headaches are unsupported by contemporaneous medical evidence and, therefore, the applicant has not demonstrated that these complaints are related to the subject accident.
32Further, Dr. Wilderman’s diagnosis of a chronic pain syndrome appears to be based on the applicant’s subjective reporting. The applicant reported to Dr. Wilderman that he suffers difficulties with household tasks which resulted in his reliance on family members for assistance and was only taking “Advil PRN” at the time of the assessment. The applicant was not taking any prescribed pain medications. I find that the applicant’s reported complaints are unsupported by contemporaneous medical records by other treating doctors or medical providers.
33I give more weight to the IE reports, because their findings are consistent with the applicant’s medical evidence. Both IE assessors were provided with additional post-accident medical records for review. In their respective IE reports, Dr. Kabila and Dr. Tu noted the applicant’s self reports of improvement after receiving physical therapy during the months following the accident. Of note, the applicant reported 80-90% improvement of his overall symptoms. Here, the applicant’s self-reporting is compelling as it aligns with the rest of his medical records, and particularly, as mentioned above, he had very few visits with his own family doctor regarding his accident-related injuries.
34During the assessment, Dr. Kabila noted symptom magnification due to consistencies with formal and informal testing and observations. For example, Dr. Kabila observed that the applicant was able to remove his shirt for clinical examination without difficulty, but exhibited restrictions in his range of motion, namely his left side. Dr. Kabila opined that it was asymptomatic and not involved in the accident-related injuries that the applicant reported. Dr. Kabila diagnosed the applicant with “neck sprain/strain, lumbosacral spine sprain/strain, right shoulder sprain/strain, right elbow contusion and right wrist sprain and strain”. He opined that the applicant’s accident-related soft tissue injuries have good to excellent prognosis.
35Dr. Tu also opined that the applicant sustained a right shoulder strain as a result of the accident with excellent prognosis, and there were no objective musculoskeletal or neurological impairments that would warrant removal from the MIG.
36For the reasons above, I am not persuaded that the applicant suffers from chronic pain or a chronic pain syndrome that warrants removal from the MIG.
Psychological Impairment
37I find that the applicant has not proven, on a balance of probabilities, that he sustained any psychological impairment resulting from the accident that warrants removal from the MIG.
38The applicant submits that his psychological impairments are not captured by the definition of the MIG and therefore warrant removal from the MIG. The applicant submits that he was diagnosed with an adjustment disorder (with mixed anxiety and depressed mood) by Dr. Mrahar, psychologist, in a report dated December 20, 2019. According to the applicant, this report supports his position that his psychological impairment warrants removal from the MIG. He also relies on an OCF-3 dated March 27, 2018, by Dr. Arabkhari, chiropractor.
39The respondent submits that the applicant does not suffer from any psychological impairment as a result of the accident, and it relies on the IE report dated August 15, 2018, by Dr. Prendergast, psychologist.
40I am not persuaded by the OCF-3 completed by Dr. Arabkhari, as his initial diagnoses of the applicant included dizziness, non-organic disorder of the sleep-wake schedule, nightmares, reaction to severe stress, adjustment disorders, and person with feared complaint in whom no diagnosis is made. I find that the applicant has not reported any post-accident psychological complaints with Dr. Serio, and Dr. Serio has not provided any preliminary psychological impairment findings or referrals to any psychologist for further treatment as a result of his post-accident injuries. Hence, Dr. Arabkhari’s diagnoses as listed in the OCF-3 do not align with the rest of the applicant’s medical records. Further, Dr. Arabkhari is a chiropractor, and, therefore, he does not have the expertise to diagnose psychological disorders or symptoms.
41I am also not persuaded by Dr. Mrahar’s psychological diagnosis, as it too is unsupported by any other contemporaneous medical records. Dr. Serio’s CNR do not record any psychological complaints or diagnose the applicant with any psychological impairment. Although Dr. Serio prescribed Cymbalta to the applicant on March 7, 2023, this prescription was issued almost 5 years post-accident and having not diagnosed the applicant post-accident with any psychological impairment resulting from the accident, I am not persuaded that this prescription is related to the subject accident.
42I give more weight to Dr. Prendergast’s IE report, because the psychological examination was conducted closer to the date of the subject accident than Dr. Mrahar’s report. It is also consistent with the rest of the applicant’s medical records. Furthermore, Dr. Prendergast reviewed the applicant’s medical documents, administered four psychometric tests, and opined that the applicant’s testing results did not suggest or reflect substantive or diagnosable levels of emotion concern. Dr. Prendergast also noted in his report that “[a]t the end of the assessment, [the applicant] agreed with my findings that he did not have any significant mental health problems and that he did not require mental health services”. Finally, the applicant reported to Dr. Prendergast that he was not aware of any OCF-18s submitted for psychological services, and he was not interested in mental health services.
43Given the above reasons, I find that, on a balance of probabilities, the applicant has not proven that he sustained any psychological impairment resulting from the accident that warrants removal from the MIG.
44For the above reasons, I find the applicant remains subject to the treatment limits of the MIG.
45In its submissions, the respondent confirmed that the MIG limit of $3,500.00 for medical and rehabilitation benefits has been exhausted. The applicant did not raise any objections on this point. However, if any amounts remain within the MIG, the applicant is entitled to any balance remaining in the MIG funding limit.
46As I have found that the applicant has not proven, on a balance of probabilities, that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing or overdue, no interest is payable.
ORDER
48For the reasons above, I find and order that:
i. The applicant’s accident-related injuries are predominantly minor as defined under the Schedule. Accordingly, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary, because the applicant remains subject to the funding limit of $3,500.00 under the MIG.
ii. No interest is payable under s. 51 of the Schedule; and
iii. This application is dismissed.
Released: March 6, 2025
__________________________
Lisa Yong
Adjudicator