Tribunal File Number: 16-002815/AABS
Case Name: 16-002815 v The Personal Insurance Company of Canada
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:
C.J.
Applicant
And
The Personal Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
Applicant: C.J.
The Applicant’s Father: L.J.
Counsel for the Applicant: Andrew Kerr, Counsel
Representative for the Respondent: Anup Kaushal, Adjuster
Counsel for the Respondent: Kathleen Mertes, Counsel
Hybrid Hearing: Written Hearing
Teleconference Hearing: May 10, 2017
OVERVIEW:
1The applicant was injured in a motor vehicle accident on February 24, 2014. He applied for accident benefits to the Personal Insurance Company of Canada (“the respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied claims for medical benefits and an examination expense on the basis that it found the applicant’s injuries to be minor and subject to the policy limit of the Minor Injury Guideline (“MIG”).
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefit Services. The parties were unable to resolve their dispute at a case conference held on December 14, 2016, and the matter proceeded to this hybrid hearing – a combination of written and telephone hearing.
3Following the case conference, the respondent approved a treatment plan dated June 18, 2017, in the amount of $2,200.00 for physiotherapy recommended by Marcin Danda of IAM Intelligent Approach. To date, $3,275.00 has been approved of the $3,500.00 MIG limit.
PROCEDURAL ISSUE:
4According to the case conference adjudicator’s order the parties agreed to a hybrid hearing. The parties were to file written submissions and documentary evidence. All witness examination in-chief was to be done by way of affidavit evidence or medical reports. The purpose of the teleconference portion of the hearing was to give the parties the opportunity to cross-examine on the affidavit evidence and medical records.
5The case conference order indicated the applicant intended to call the applicant, two doctors and a physiotherapist as witnesses. The respondent was to call their two IE assessors as witnesses. Neither party requested from the Tribunal a summons for their respective witnesses.
6At the teleconference hearing neither party had any witnesses available for the purpose of cross-examination. The sole-purpose of the teleconference hearing was for cross-examination on affidavit evidence. Applicant’s counsel indicated that he wished to cross-examine the IE assessors on their reports. He also indicated it was not his intention to call the applicant or any other witnesses and he had not filed any affidavit evidence. The respondent objected to the applicant’s request as his witnesses were not present and no affidavit evidence had been filed for the purpose of cross-examination.
7Since neither party had their witnesses available for the teleconference hearing and to ensure procedural fairness to both sides, my decision was that both parties would rely on their medical reports. I then gave both parties the opportunity to provide brief submissions at the teleconference hearing.
ISSUES IN DISPUTE:
8The following issues are in dispute before the Tribunal:
- Did the applicant suffer predominantly minor injuries as a result of the February 24, 2014 motor vehicle accident? 1
9If the applicant’s injuries fall outside of the MIG, is he entitled to the following treatment plans for medical benefits and an examination expense recommended by Marcin Danda of IAM Intelligent Approach:
a) $2,400.00 for physiotherapy denied by the respondent on December 8, 2015;
b) $700.04 for physiotherapy denied by the respondent on June 26, 2015; and
c) $1,950.00 for a psychological assessment denied by the respondent on October 21, 2014.
RESULT:
10After reviewing the parties’ submissions and documentary evidence and hearing the parties’ oral submissions, I find that the applicant suffered predominantly minor injuries. I find that the applicant did not provide compelling evidence of a pre-existing medical condition that would remove him from the MIG. Nor did the applicant provide sufficient evidence that his accident related injuries were not minor.
11I do not find the treatment plans for medical benefits and examination expenses to be reasonable or necessary.
THE LAW, EVIDENCE AND ANALYSIS:
Did the applicant suffer predominantly minor injuries as a result of the accident of February 24, 2014?
12In order for me to make a finding with respect to whether or not the applicant’s injuries are minor, I must look to section 3 of the Schedule which provides the following definition of a minor injury:
“A “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
13Section 18(1) of the Schedule states if the insured person sustains impairments that are predominantly a minor injury in accordance with the MIG that the sum of benefits payable under medical and rehabilitation benefits is limited to $3,500. Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence … the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery…”
The Parties Submissions:
14The applicant’s submissions provided an overview of the MIG and attached a copy of the (MIG). The applicant argued that there could be a number of explanations why an individual would not fit into the MIG. Those would include if an individual suffered from a pre-existing medical condition that would remove them from the MIG, or suffered from chronic pain or a psychological impairment. The applicant argued that he fits into one of these categories.
15Further, the applicant maintained that his injuries are not minor because he is only 22 years old, and given his young age, his injuries should have healed by now. In addition, the fact that he has ongoing complaints supports that his injuries are not minor. Finally, the applicant submits there is no evidence to suggest that he is faking his illness. Therefore, further medical treatment is required and additional assessments are needed to investigate his issues. The applicant asserted that further physiotherapy is required to relieve his pain and restore him to the lifestyle of someone of his age. The compelling evidence is the situation itself as it is abnormal that he is so young and has not healed from his accident related injuries.
16The respondent argued that the applicant’s injuries are minor as indicated in the applicant’s own orthopaedic assessment, family doctor’s records and insurer examinations. Further, the applicant has not met his onus in providing compelling medical evidence of a pre-existing condition that would remove him from the MIG.
17The respondent highlighted the fact that applicant’s counsel has provided his own opinion regarding the applicant’s impairments and has failed to support his position with any evidence. The respondent referred to the various clinical notes and records and reports which demonstrate the applicant’s injuries are minor.
The Evidence:
Psychological Assessments
18The applicant submitted an Intake Report by Dr. Philip Miller, Psychologist, dated October 8, 2014. Dr. Miller stated the applicant reported struggling with feelings of depression as he could not do the work he could prior to the accident and feels anxious in vehicles. Dr. Miller opined that the applicant had symptoms of post- traumatic stress disorder and recommended a full psychological assessment. Dr. Miller indicated that the scale of pain catastrophizing was moderately high and could lead to the development of a chronic pain profile.
19The respondent submitted the insurer examination of Dr. Marc Mandel, Psychologist, dated November 24, 2014. The applicant reported that he still suffered from pain but is independent with personal care, household chores and still has an active social life with friends and his girlfriend. Further, he still goes hunting, fishing and works on restoring his truck – at a slower pace. He reported he still suffers from nightmares about the accident and wakes up feeling anxious. The report notes that he sleeps 7-12 hours a night. Dr. Mandel concludes that the applicant did not have any pre-existing injuries, found no impairment from a psychological perspective and found the treatment plan for a psychological assessment not reasonable and necessary.
20I found the respondent’s report more thorough and persuasive. In addition, the applicant did not submit any other evidence to support a psychological impairment resulting from the accident. Therefore, I do not find the treatment plan for a psychological assessment to be reasonable or necessary.
Orthopaedic Assessment
21The applicant also submitted an Orthopaedic Assessment dated July 11, 2016 completed by Dr. D.J McGonigal. I am of the view that Dr. McGonigal’s assessment established that the applicant’s physical injuries are minor. The applicant reported shoulder, neck and lower back pain. The applicant informed the doctor that he had no significant limitations and that he is independent with personal care and continues to work as a fork-life operator. Further, his injuries have not prevented him from completing his household chores and his hobby restoring trucks with his father even though he goes at a slower pace now. Dr. McGonigal states that at no time during the assessment did the applicant appear in distress.
22Dr. McGonigal’s assessment concluded that the applicant sustained soft tissue injuries to his left shoulder and lumbar spine and has reached maximum medical recovery. Dr. McGonigal indicates there is no evidence of a more significant injury. While he states physiotherapy would help improve the applicant’s current subjective complaints, he notes it would not promote resolution of same.
CNRs of Dr. Attapatu
23The applicant submitted the clinical notes and records of Dr. Vidura Attapatu, his family doctor. I reviewed these records and Dr. Attapatu diagnosed the applicant with soft tissue injuries arising from the accident and the records did not establish that there was a pre-existing medical condition that would remove him from the MIG.
Insurer examination by Dr. Wong
24The insurer examination conducted by Dr. Jason Wong, General Practioner dated July 23, 2015 found no objective evidence of ongoing neuropathy and diagnosed the applicant with WAD II disorder, a myofascial strain of trapezius and parispinals (back muscles) and an uncomplicated soft tissue injury to the left shoulder. Dr. Wong concluded that the applicant’s injuries were minor and maintains that there was no compelling evidence of any pre-existing injuries that would remove him from the MIG.
Findings/Conclusions
25In the respondent’s oral submissions it pointed out that the document history outlined in Dr. McGonigal’s report refers to one of Dr. Attapatu’s records which revealed that the applicant had missed several physiotherapy appointments. The entry relating to West Shore Physiotherapy on March 31, 2014, by Kyle Murphy, physiotherapist indicates the applicant was discharged after missing several appointments. The applicant advised that he missed several appointments due to a personality conflict with the physiotherapist.
26The respondent further points out that to date only $1,075.00 in medical treatment has been incurred by the applicant despite the fact that it had approved the treatment plan for $2,200.00 following the case conference in December 2016. The applicant indicated that there was some confusion regarding the approval of this treatment plan.
27I find that the applicant’s impairments falls within the MIG and he has not met his obligation in demonstrating that he had a pre-existing medical condition or any other condition that would remove him from the MIG. For example, the injuries noted on treatment plans, his family doctor’s clinical notes and records and the report of his orthopaedic specialist all reach the same conclusion that the applicant’s injuries are minor.
28In addition, the medical evidence submitted by the applicant falls short of compelling as required by section 18 of the Schedule, or as established by the court, which found that it is the applicant who has the burden of proof to justify that his injuries fall outside of the MIG. 2
29After reading the submissions of the parties and reviewing the evidence, I do not find that the applicant has provided compelling evidence of a pre-existing medical condition or evidence of injury resulting from the accident that would prevent him from achieving maximum medical recovery under the MIG.
30Finally, the applicant has not incurred the approved treatment and has not met his onus to demonstrate that additional treatment is required. Therefore, I do not find the treatment plans to be reasonable and necessary.
ORDER:
1For the above-noted reasons this application is dismissed.
Released: July 31, 2017
Rebecca Hines, Adjudicator