17-00846 v Economical Mutual Insurance Company
Date: 2017-12-13 Tribunal File Number: 17-000846/AABS Case Name: 17-00846 v Economical Mutual Insurance Company
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:
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler Appearances: Counsel for the Applicant: Mariya Verkhovets Counsel for the Respondent: Tim Gillibrand Hearing-in-writing: July 24, 2017
I. Overview:
1The applicant was injured in an automobile accident on June 9, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant made claims for an income replacement benefit (“IRB”), attendant care benefit (“ACB”) and medical benefits which the respondent denied based on insurer’s examinations (“IEs”).1
3The IEs found that the applicant’s injuries are minor and subject to the $3,500 limit of the minor injury guideline (MIG). IEs addressing entitlement to an IRB determined that the applicant does not suffer a substantial inability to perform her pre-accident tasks and, consequently, does not qualify for IRBs.
4The applicant’s position is that her injuries are not minor and those injuries prevent her from performing her pre-accident tasks and, as such, she qualifies for IRBs. Given that her injures are not minor, she is also eligible for ACBs.
5The onus is on the applicant based on a balance of probabilities to prove that she is entitled to the benefits in dispute.
6I find that the applicant failed to provide persuasive evidence to support her position that her injuries are not minor. As such, she is not entitled to ACBs. The applicant is also not entitled to funding for further medical treatment as her injuries are subject to the MIG and she has exhausted the $3,500 limit. I also find that the applicant does not meet the test for IRBs and there is no persuasive evidence before me to show me that she is unable to perform the essential tasks of her pre-accident employment.
II. Preliminary Issue
a) Should Dr. Mohamed Khaled’s report dated December 3, 2015 submitted by the respondent be excluded from this proceeding because they failed to provide the report within 10 business days after receiving it as per s. 38(13) of the Schedule?
7The respondent concedes that it did not provide Dr. Khaled’s report within 10 business days under s. 38(13) of the Schedule. The respondent provided the report one business day late.
8As a remedy, the applicant is seeking that the report be excluded from this proceeding. I disagree.
9I find that the exclusion of the report for not complying with the Schedule to be excessive and prejudicial to the respondent. Furthermore, there is nothing in the Schedule or the Tribunal’s Rules of Practice and Procedure that would permit me to take such action.
10In addition, there is no evidence before me that the applicant was prejudiced by receiving the report one day late.
11For the reasons stated above, I find that the report is admissible.
III. Issues:
12For this hearing, the issues in dispute are as follows:
a. Are the applicant’s injuries predominantly minor and subject to a $3,500.00 limit under section 18 of the Schedule?
b. Is the applicant entitled to a weekly IRB in the amount of $400 per week from December 21, 2015 to date and ongoing?
c. Is the applicant entitled to ACBs in the amount of $1,744.97 per month from July 9, 2015 to date and ongoing?
d. Is the applicant entitled to receive a medical benefit in the amount of $3,939.43 for physiotherapy services, recommended by Complete Rehab Centre in a treatment plan dated June 17, 2015, denied by the respondent on June 30, 2015?
e. Is the applicant entitled to receive a medical benefit in the amount of $2,248.90 for occupational therapy services recommended by complete Rehab in a treatment plan date June 25, 2015, denied by the respondent on June 30, 2015?
f. Is the applicant entitled to receive a medical benefit in the amount of $1,306.67 ($2,399.49 less $1,092.82 approved) for massage and chiropractic services recommended by Complete Rehab Centre in a treatment plan dated October 22, 2015, denied by the respondent on September 2, 2015?
g. Is the applicant entitled to receive a medical benefit in the amount of $2,108.11 for physiotherapy services recommended by Complete Rehab Centre in a treatment plan dated October 22, 2015, denied by the respondent on November 3, 2015?
h. Is the applicant entitled to receive a medical benefit in the amount of $2,460.00 for psychological services recommended by Complete Rehab Centre in a treatment plan dated March 9, 2016, denied by the respondent on March 16, 2016?
IV. Result:
13The applicant’s injuries are predominantly minor and she has exhausted the $3,500 limit available under the MIG. As such, the applicant is not entitled to the medical benefits or the ACBs in dispute.
14The applicant failed to prove that she is entitled to IRBs.
V. Analysis:
a) Are the applicant’s injuries predominantly minor and subject to the $3,500 limit?
15I find that the applicant’s injuries are predominantly minor and subject to the $3,500 limit under the MIG.
16Under section 3 of the Schedule, 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 to such an injury.”
17The applicant relied on Dr. Muhammad Fairoze Poonah’s and Dr. Naresh Kumar’s clinical notes and records (CNRs), and the in-home assessment of Susana Silva, Occupational Therapist, and the respondent’s IEs to support her position that her injuries are not minor.
i. Drs. Poonah’s and Kumar’s CNRs
18The applicant submitted the CNRs of Dr. Poonah dated June 10, 2015. In his notes, he indicates that the applicant has neck tenderness and that her range of motion is slow. In a letter to the applicant dated June 10, 2015, he wrote that due to her medical condition she is unable to work from Tuesday June 9, 2015 until further notice. Dr. Poonah’s letter does not give a reason why the applicant is unable to work.
19The applicant attended Dr. Kumar’s office on June 12, July 8, and July 10, 2015. On these visits, the applicant complained of shoulder, back, neck, leg and wrist pain. In Dr. Kumar’s CNRs, he diagnosed the applicant with neck pain.
20I have reviewed Dr. Poonah’s and Dr. Kumar’s CNRs, and these records support that the applicant’s injuries are minor as defined in the Schedule. Further, I do not have any updated CNRs from Dr. Kumar and Poonah. I only have CNRS for June 10, June 12, July 8 and July 10, 2015, so I am unable to determine the applicant’s physical status at the time of the denial of the treatment plans.
21The applicant also submitted that Drs. Kumar and Poonah diagnosed her with chronic pain, but I do not have any evidence of that diagnosis in their CNRs or any other documents.
ii. In-home assessment
22The in-home assessment conducted by Susana Silva, dated June 26, 2015 indicated that its purpose was to identify tasks, environments and equipment that present barriers to the applicant’s return to normal activities.
23The applicant reported pain and range of motion limitations in her neck, back and hip. She also expressed psychological issues as a result of the accident. Ms. Silva recommended housekeeping assistance and psychological intervention to address mood issues.
24I find the applicant’s self-reports of her injuries and Dr. Silva’s objective findings of the applicant’s physical limitations fit within the definition of a minor injury as defined in the Schedule. Further, Ms. Silva’s recommendation for the applicant to seek psychological testing does not constitute a confirmation or diagnosis of a psychological impairment and is beyond the scope of an occupational therapist.
iii. Insurer’s Examinations
25I reviewed the following IEs:
a. Dr. Carolee Orme’s psychological report dated November 3, 2015 to address the applicant’s IRB entitlement (pre-104);
b. Dr. Khaled’s report dated August 11, 2015 for a MIG determination
c. Dr. Khaled’s report dated December 3, 2015 to address the applicant’s IRB entitlement (pre-104); and
d. Mr. Craig Hammond, Kinesiologist, Functional Abilities Evaluation dated December 3, 2015 to address entitlement to IRBs (pre-104).
26Dr. Orme indicated that from a psychological perspective, the applicant has recovered significantly from the accident and no longer experiences accident-related nightmares or driving anxiety. Dr. Orme opines that she has no significant psychological impairments that would warrant treatment outside of the $3,500 limit of the MIG.
27In Dr. Khaled’s report dated August 11, 2015, he diagnosed the applicant with having right-sided low back pain, grade 2 whiplash of the neck with associated right shoulder sprain/strain. He found these to be uncomplicated soft tissues injuries and her physical injuries are predominantly minor.
28In Dr. Khaled’s report dated December 3, 2015, he found that the applicant continued to have “some reduction in the range of motion due to pain, but this does not constitute an impairment.” Dr. Khaled opined that the applicant has made a good recovery to date.
29Most of the IEs identify that the applicant is experiencing pain and some range of motion limitation; however, the existence of pain is not sufficient to remove the applicant from the MIG.
30There is no evidence before me to support that the applicant should be removed from the MIG based on a pre-existing condition, neurological impairment, psychological impairment, chronic pain, fracture and/or tear.
31In the absence of such evidence, I find that applicant’s injuries are minor and subject to the $3,500 limit under the MIG.
b) Is the applicant entitled to the medical benefits in dispute?
32Since I have determined that the applicant’s injuries are minor, she is not entitled to any of the treatment plans for medical benefits in dispute as she has exhausted the $3,500.00 limit available under the MIG.
c) Is the applicant entitled to ACBs?
33I find that the applicant is not entitled to ACBs.
34Under s. 14(2) of the Schedule, the respondent is liable to pay ACBs if the impairment is not a minor injury.
35Since I have determined that the applicant injuries are minor, she is not entitled to ACBs. Furthermore, the applicant reported to Mr. Hammond that she is independent with her self-care, but it takes her more time to complete these tasks.
d) Is the applicant entitled to IRBs?
36I find that the applicant is not entitled to IRBs from December 15, 2015 to date and ongoing.
37Under s. 5(1) of the Schedule provides that the respondent shall pay an IRB if the applicant person:
(i) Was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
38The respondent submitted that the applicant is not entitled to IRBs because she does not meet the test, and secondly, because she returned to work shortly after the accident.
39Prior to the accident, the applicant worked as a machine operator at Magna on a full-time basis. According to the applicant, she could not work for 2.5 months as result of the accident. When she returned to work, she was placed on modified duties. The applicant does not indicate what her duties were at Magna, so I am unable to determine what the essential tasks of her employment were when the accident occurred.
40I agree with the respondent that it is unclear why the applicant is claiming entitlement to IRBs for the period in dispute when she returned to work part-time on July 27, 2015 and full time on August 10, 2015. Irrespective of when the applicant returned to work, she returned to work prior to the period in dispute which is ongoing from December 21, 2015. Further, there is no information before me that the applicant stopped working after she returned to work.
41The onus is on the applicant to show that she is entitled to IRBs. Even if the applicant had not been working, she has not provided any persuasive evidence, such as medical reports, to support her entitlement to these benefits.
42She did provide a note from Dr. Poonah dated June 10, 2015, which states that she is unable to work from Tuesday June 9, 2015 until further notice due to her medical condition.
43I have two concerns with this note:
I. I do not know what medical condition he is referring to; and
II. The note was completed 6 months prior to the actual time period being claimed and no follow up documentation was provided.
44I am not able to give any significant weight to this note.
45The IEs completed by Drs. Khaled and Orme indicate that the applicant does not suffer from a substantial inability from performing the essential tasks of her employment from a physical or psychological perspective as a result of her accident related impairments.
46In Mr. Hammond’s FAE dated December 3, 2015, he was not able to assess the applicant’s capacity to lift, carry, grip, stretch, and climb stairs because she had an elevated resting blood pressure during the assessment. However, he was able to assess that the applicant’s cervical range of motion was normal and she was able to maintain a forward reaching position without complaint.
47The applicant has not met her evidentiary onus to support entitlement to an IRB.
VI. Order:
48I order the following:
a. The applicant’s injuries are minor and subject to a $3,500.00 limit under the MIG.
b. The applicant is not entitled to a weekly IRB in the amount of $400 per week for the period from December 21, 2015 to date and ongoing.
c. Given that the applicant’s injuries are minor, she is not entitled to ACBs in the amount of $1,744.97 per month for the period of July 9, 2015 to date and ongoing.
d. The applicant is not entitled to the following medical benefits:
$3,939.43 for physiotherapy services;
$2,248.90 for occupational therapy services;
$1,306.67 ($2,399.49 less $1,092.82 approved) for massage and chiropractic services;
$2,108.11 for physiotherapy services; and
$2,460.00 for psychological services.
Released: December 13, 2017
Nicole Treksler, Adjudicator