Licence Appeal Tribunal
Tribunal File Number: 17-004604/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:
F.W. Applicant
and
Certas Direct Insurance Company Respondent
DECISION
Adjudicator: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: David Fenicky Counsel for the Respondent: Stephanie Charikar
Heard in writing on: December 4, 2017
OVERVIEW
1The applicant was injured in an automobile accident on November 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for medical benefits that were denied by the respondent because he was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
3The following are the issues to be decided as per the case conference order dated October 6, 2017:
i. Are the applicant’s injuries predominantly minor as that terms is defined in s. 3(1) of the Schedule and thus, subject to a $3,500.00 treatment limit pursuant to section 18?
ii. If the answer to issue one is no, then:
iii. Is the applicant entitled to receive a medical benefit in the amount of $3,492.70 for physiotherapy services, recommended in a treatment plan by North Toronto Rehabilitation and Physiotherapy Centre, dated December 18, 2015;
iv. Is the applicant entitled to receive a medical benefit in the amount of $1,886.29 for physiotherapy services by North Toronto Rehabilitation and Physiotherapy Centre, submitted in a treatment plan dated February 16, 2016; and
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find:
i. The applicant has predominately minor injuries as defined in the Schedule and it is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.
ANALYSIS
Applicability of the Minor Injury Guideline
5The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
6Section 18(2) of the Schedule provides for injured persons who have a pre- existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
7In the decision of Scarlett v. Belair Insurance,2 the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
Did the applicant sustain a predominately minor injury?
8I find that the medical evidence before me indicates the applicant sustained an impairment that is predominantly a minor injury.
9The applicant attended the emergency room at [a hospital] on November 21, 2015 and the examination conducted by the emergency room physician, Dr. Simard states the applicant has no tenderness to the areas of his neck, thoracic area and lumbar area. He has full range of motion in all four extremities with normal range of motion in the elbows, wrists, shoulders, hips, knees and ankles. Dr. Simard recommended Tylenol and Advil as needed for his pain and to follow up with his family doctor.
10The applicant’s family doctor’s clinical notes and records from November 25, 2015 state the applicant has pain in his neck, back and hip with no broken bones.
11On January 8, 2016 the family doctor notes that the applicant is “feeling much better now with his back pain” and the applicant’s lumbar strain is “much improved”.
12The February 3, 2016 entry of the family doctor’s notes state the applicant “feels normal” with “no issues at all” and “no back pain” and that he “feels okay”. The notes also state the applicant is able to bend and twist and walk without any difficulty.
13On February 26, 2016 the applicant attended an insurer examination before General Practitioner, Dr. Pravesh Jugnundan. Dr. Jugnundan’s report lists the applicant’s current complaints as intermittent low back pain when he is at work and that his right rib pain has resolved. The applicant states he has no other complaints. The clinical examination revealed pain in the lower lumbosacral region and left sacroiliac joint region.
14Dr. Jugnundan classifies these injuries as soft tissue injures to the applicant’s lower back and neck and that the applicant has achieved maximum medical recovery for these minor injuries.
15Based on the evidence from the emergency room doctor at [the hospital], the applicant’s family doctor and from the insurer examining doctor, Dr. Jegnundan, I find the applicant’s injuries to be predominantly minor and within the definition of section 3(1) of the Schedule.
16The applicant has not provided any submissions or evidence to show injuries that fall outside of the MIG. Although the applicant provided submissions and clinical notes and records to show that he continues to suffer from pain and based on the evidence provided in this case, I do not find that references to pain complaints alone take the applicant outside of the MIG. Once the injuries are established to be outside of the MIG, only then can an analysis of whether the treatment plans in dispute are reasonable and necessary take place. As such, I do not need to determine whether the treatment plans are reasonable and necessary.
Requirements to be removed from the MIG
17If the applicant’s injuries fall within the definition of the MIG, the applicant can still be considered to be out of the MIG in accordance with section 18(2) of the Schedule. In order to do so, the applicant must meet all three of the following requirements in order to escape the MIG under this section:
a) There was a pre-existing medical condition;
b) The pre-existing medical condition was documented by a health practitioner before the accident; and
c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.
18I find that the applicant has not satisfied his onus and has not provided any submissions or evidence that any of the three criteria above apply. The applicant’s position that his injuries should be considered outside of the MIG appears to be based on his argument that the insurer’s examining doctor, Dr. Jugnundan, did not consider in his report whether any future treatment was necessary or whether the treatment plan was reasonable.
19Unfortunately for the applicant, as he provided no evidence that his injuries fall outside the MIG, the reasonableness or necessity of the treatment plan cannot be considered.
20As I have found that the applicant has not met his onus to show his injuries are outside of the MIG there is no need for me to conduct an analysis of whether the treatment plans are reasonable and necessary and accordingly, no interest is payable.
CONCLUSION
21For the reasons outlined above, I find that:
a. the applicant sustained predominately minor injuries as defined in the Schedule; and
b. the applicant has not established that he has a pre-existing medical condition that prevents recovery under the MIG and therefore the applicant is not entitled to the treatment plans or the interest that is in dispute for this application.
Released: December 28, 2017
Sandeep Johal Adjudicator