Licence Appeal Tribunal
Tribunal File Number: 17-001473/AABS
Case Name: 17-001473 v Unica Insurance Inc.
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:
N. K.
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
For the Applicant: Kiro Soliman, paralegal
For the Respondent: Angela Comella, counsel
HEARD: Written Hearing: July 11, 2017
REASONS FOR DECISION
1This is an application to the Licence Appeal Tribunal (the “Tribunal”) in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
Background
2N.K. (the “applicant”) was involved in an automobile accident on October 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
3The applicant applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
4A case settlement conference held on May 15, 2017 failed to resolve the issues disputed by the parties. Accordingly, a written hearing was ordered to be conducted in this matter, commencing July 11, 2017.
Issues
5The issues to be determined are:
Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500.00 and to treatment within the Minor Injury Guideline (the “MIG”)2?
Is the applicant entitled to payment for the cost of examination in the amount of $2,200.00 for a chronic pain assessment, recommended by Health One Physio Inc. in a treatment plan submitted on November 2, 2016 denied by the respondent on December 12, 2016?
Is the applicant entitled to receive a medical benefit in the amount of $1,500.00 for an in-home assessment, recommended by Health One Physio Inc. in a treatment plan submitted on November 28, 2016 and denied by the respondent on December 12, 2016?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under Regulation 664, Automobile Insurance3 (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?
Findings
6I find that the applicant’s injuries fall outside the MIG because:
(i) The applicant is correct that concussion, post-concussion syndrome and related sequelae are not governed by the MIG.
(ii) I have concluded that the applicant did sustain concussion and post-concussion syndrome and related sequelae as a result of the accident.
7The applicant has failed to prove that a chronic pain assessment as proposed in issue 2 is reasonable and necessary.
8The applicant has failed to prove that an in-home assessment as proposed in issue 3 is reasonable and necessary.
9No payments are due to the applicant from the respondent; accordingly, the claim for a special award is dismissed.
10No interest on overdue payments is owed.
Reasons: Issue 1 – MIG Determination
11The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the MIG.
12If the respondent is correct, then the applicant is subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether claimed benefits are reasonably and necessary will be unnecessary as the $3,500.00 has been exhausted.
13Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”
14I agree with the applicant that concussions and post-concussion syndrome, if established, fall outside the MIG, because:
(i) The MIG relates only to “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition set out therein does not include brain injuries.
(ii) I note that the applicant’s arguments that brain injuries, including concussions and post-concussion syndrome, if proven, are outside of the MIG are uncontested by the respondent.
(iii) The applicant has adduced evidence, undisputed by the respondent, that concussion and post-concussion syndrome are brain injuries, citing authorities such as Health Guide Canada and the American Association of Neurological Surgeons (“AANS”) that I find convincing.
15As a result of the foregoing, I must determine whether or not the applicant actually sustained a concussion and post-concussion syndrome as the result of the accident.
16The applicant relies on the following diagnoses to establish that he sustained a concussion and post-concussion syndrome:
(i) Dr. Rajaratnam Kimbaharan, family physician, diagnosed concussion on October 14, 2015.
(ii) The applicant reported symptoms to Dr. Kimbaharan over the course of 2015-2016 consistent with post-concussion syndrome including migraines, chronic dizziness and chronic fatigue.
(iii) Dr. Sumeet Anand, otolaryngologist, diagnosed Benign Paroxysmal Positional Vertigo on October 4, 2016.
(iv) Dr. Lance Majl, neurologist, diagnosed post-concussion syndrome on December 12, 2016 and referred the applicant to an optometrist to deal with blurred vision.
17The respondent does not directly challenge the diagnoses set out by the applicant.
18The respondent relies on its insurer examinations (IEs) to rebut the applicant’s claims.
19I find only one of the IEs to have significant weight on this issue, namely the IE by Dr. Roy Baskind, neurologist, dated April 6, 2017, in which the physician:
(i) did not detect neurological deficits in his examination of the applicant; and
(ii) concluded that the applicant fell within the MIG from “a neurological perspective”.
20I find the applicant’s medical evidence more persuasive that the respondent’s evidence because:
(i) The respondent does not directly challenge the diagnoses set out by the applicant’s doctors. None of the IEs speak to concussion or post-concussion syndrome, which I would find essential to contradicting the applicant’s asserted diagnosis.
(ii) According to AANS, “mild injuries to the brain may not be observable in routine neurological exams”, and “sometimes the blow can result in microscopic damage to brain cells without obvious structural damage visible on a CT scan.”4 I find that this effectively means that Dr. Baskind’s report (and the imaging results he references) is inconclusive with respect to concussion or post-concussion diagnoses.
21The respondent seeks to raise doubts about the causation of the applicant’s symptoms – headaches, dizziness, chronic fatigue – because they manifested over time. It disputes whether or not the applicant lost consciousness after the accident. The respondent’s arguments are weak, for the following reasons:
(i) The respondent fails to provide support for its apparent assertion that symptoms or problems arising from concussion and post-concussion syndrome must arise immediately or shortly after the initial injury.
(ii) AANS, as noted by the applicant, states that there is no evidence that concussions necessarily involve a loss of consciousness.
(iii) The respondent offers no proof of any correlation between the severity of the injury and the likelihood of developing persistent post-concussion symptoms.
22The respondent’s arguments do not refute the applicant’s evidence that he sustained a concussion and post-concussion syndrome as a result of the accident.
23On the basis of the evidence that I reviewed, I conclude that the applicant suffered a concussion and post-concussion syndrome as a result of the accident; accordingly, he has sustained injuries that fall outside of the MIG, and he is entitled to a determination of whether or not the proposed treatment plans are reasonable and necessary.
Reasons: Issue 2 – Chronic Pain Assessment
24Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.5
25The respondent argues that the applicant has not put forth any evidence or argument to demonstrate that a chronic pain assessment is necessary for the treatment of concussion or any other specific issue.
26My review of the applicant’s submission substantiates the respondent’s argument. The applicant focuses on concussion and post-concussion syndrome in his submission and offers no discussion of chronic pain syndrome or symptoms at all.
27There is a lengthy series of “encounter reports” from the applicant’s personal physician that mention various pain-related complaints and there are references to pain-related treatments in reports submitted by both parties. None of this information is developed by the applicant into argument, beyond referring to his assertion, without further analysis, that his “evidentiary record is vast and laden with proof of [his] position.”
28My review of the disputed chronic pain assessment treatment plan prepared by Dr. Marco Curcio, chiropractor, provides scant help to the applicant. There is no specific mention of concussion or post-concussion issues, although there are symptoms listed that correspond to post-concussion syndrome, such as chronic post-traumatic headache, dizziness and persistent headaches.
29I find from my review of the OCF 18 that Dr. Curcio does not provide sufficient evidence that the applicant suffers from chronic pain syndrome nor does it clearly explain how a chronic pain assessment and treatment will address the applicant’s concussion/post-concussion syndrome injuries The applicant’s arguments do not clarify this point. For this reason, I conclude that the applicant has not met the onus on him to prove that a chronic pain assessment is reasonable and necessary.
Reasons: Issue 3 – In-Home Assessment
30The applicant seeks an in-home assessment to identify barriers to resuming activities of daily living (ADLs) in his personal living environment. The assessment plan also includes a line about assessing attendant care needs.
31The applicant’s submission omits any argument in support of a need for an in-home assessment: his submission does not discuss any difficulties with ADLs. Similarly, it fails to speak to attendant care needs.
32My review of the disputed in-home needs assessment plan prepared by Dr. Curcio, chiropractor, provides an opinion that the applicant has some difficulties with ADLs (laundry, garbage disposal, meal preparation, vacuuming) but not personal care (hygiene, feeding, etc.). Dr. Curcio advises that an assessment is needed to identify barriers to the applicant’s return to normal activities. Dr. Curcio notes no safety issues.
33The respondent asserts that the applicant has reported to IE physicians that he is independent in looking after his personal care needs. While this is true, I think it fair to note that the applicant also reported pain and difficultly in performing certain tasks, such as grocery shopping and garbage disposal to Dr. Baskind and to a psychologist, Dr. Hannah Rockman (noted in her IE report of November 10, 2016).
34None of the foregoing information is developed by the applicant into a coherent and convincing argument that an in-home assessment is necessary for him to carry out normal ADLs.
35I find that the applicant has not met the onus on him to prove that an in-home assessment is reasonable and necessary.
Reasons: Issue 4 – Special Award
36Because I have found that no payments are due to the applicant from the respondent, the claim for a special award is dismissed.
Interest: Issue 5 – Interest
37Because I have found that no payments are due to the applicant from the respondent, no interest on overdue payments is owed.
Summary of Findings
38The applicant’s injuries are not minor injuries as defined in the Schedule.
39The applicant has failed to prove that either of the chronic pain and in-home assessments claimed issue 2 and 3 respectively is reasonable and necessary.
40The claim for a special award is dismissed.
41No interest on overdue payments is owed.
Released: August 18, 2017
Christopher A. Ferguson, Adjudicator
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- R.R.O. 1990, Reg. 664
- Online: American Association of Neurological Surgeons http://www.aans.org/Patients/Neurosurgical-Conditions-and-Treatments/Concussion.
- Scarlett v. Belair, 2015 ONSC 3635.