Tribunal File Number: 17-008702/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:
S. M.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Julia Logotuova, Representative
For the Respondent:
Tripta Sood, Counsel
HEARD:
In Writing on: July 30, 2018
OVERVIEW
1The applicant was injured in an automobile accident on August 11, 2015 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and costs of examinations and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
(1) Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?
(2) Is the applicant entitled to receive medical benefits recommended by 101 Physio as follows;
(a) $1,300.00, less $1,100.00 approved, for chiropractic services recommended in a treatment plan dated November 16, 2015, and
(b) $2,790.88 for physiotherapy services recommended in a treatment plan dated January 26, 2016?
(3) Is the applicant entitled to payments for the cost if examinations in the amount of $2,000.00 for a psychological assessment, recommended by 101Physio in a treatment plan dated January 14, 2016?
(4) Is the applicant entitled to interest of overdue payment of benefits?
RESULT
3I find that the applicant sustained a minor injury as defined under the Schedule. The applicant has not provided compelling medical evidence to establish that the applicant’s injuries fall outside the Minor Injury Guideline (MIG). The applicant is subject to the treatment funding limit of $3,500.00, as prescribed by section 18(1) of the Schedule. The applicant is not entitled to the medical benefits claimed because the applicant has exhausted the funding provided for under the MIG.
BACKGROUND
4The applicant was a middle-row passenger in a van which spun out of control on a highway off-ramp and flipped onto the driver’s side. The applicant was 18 at the time of the accident and still lived at the family residence. The applicant did not seek immediate attention for any injuries and reported to have fled the scene of the accident out of fear the applicant’s parents would discover whom the applicant was with in the van.
5A few days following the accident, due to pain, the applicant went to the hospital and complained of chest pains. X-rays were taken and did not indicate any fractures. The applicant was seen by a physician and diagnosed with musculoskeletal rib pain.
6About a week following the visit to the hospital, the applicant started treatment under the MIG at 101 Physio. The respondent approved and funded all proposed treatment under the MIG, with the exception of the $200.00 difference which is listed as issue (2) a.
7About 5 months after the accident, the applicant requested funding for a psychological assessment, listed as issue 3. The respondent denied funding for this assessment on the grounds the applicant had exhausted the funding limit in the MIG.
8The applicant disputes the respondent’s characterization of the applicant’s injuries as falling within the MIG and claims entitlement to the disputed treatment and assessment.
FAILURE TO DISPUTE WITHIN 2 YEARS OF DENIAL
9The respondent submits and the documents confirm that the partially denied treatment plan was submitted on November 16, 2015 and denied by the respondent on November 27, 2015. This application was submitted on December 11, 2017, more than 2 years after the respondent’s denial.
10The applicant was provided an opportunity to make reply submissions in response to the respondent’s submissions but chose not to.
11Considering these facts, I find the applicant has failed to dispute the respondent’s partial denial within the time limits prescribed by section 56 of the Schedule. The applicant is barred from adjudicating entitlement to the issue.
12Section 7 of the Licence Appeal Tribunal (LAT) Act allows me to extend the deadline for filing of an appeal. Based on the submissions and evidence before me, and the applicant’s decision not to dispute the respondent’s position in reply submissions, I decline to exercise my discretion to extend the limitation period in this case.
THE MINOR INJURY GUIDELINE
13The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
14The applicant argues entitlement to treatment beyond the MIG funding limit of $3,500.00 not because of a pre-existing condition which would preclude recovery within the MIG, but because the applicant’s injuries fall outside those included in the MIG. The applicant submits the treatment and assessment plan proposing the disputed psychological assessment contains medical information which confirms the applicant suffered psychological injuries which fall outside those defined in the MIG. Lastly, the applicant submits the respondent’s failure to seek an opinion from an independent medical assessor discounts the position that the applicant’s injuries fall within the MIG.
15The respondent holds the applicant has failed to provide evidence of anything beyond soft tissue injuries which fall within the MIG. Further, the respondent submits there is no obligation to seek any further medical opinion on the applicant’s injuries because the applicant has not provided any additional information to seek an opinion about and because the applicant failed to attend a previously scheduled insurer’s examination.
THE EVIDENCE
16The applicant has provided two documents in support of the position that the applicant’s injuries fall outside the MIG: a disability certificate dated August 20, 2015 and the treatment and assessment plan proposing the disputed psychological assessment.
17The disability certificate, completed by Daisy Beddoe, physiotherapist, lists postconcussional syndrome (sic), headache, dizziness and giddiness, and nausea alone as the most prominent injuries, followed by several soft tissue injuries to the ribs, neck, back and arm. However, these diagnoses in the disability certificate are undermined by the fact that following the assessment for the disability certificate, the same physiotherapist proceeded to treat the applicant and submit treatment plans under the MIG. Further, the physiotherapist’s findings are inconsistent with the rest of the applicant’s medical record. The physiotherapist found that the applicant had a broader range and more numerous injuries than were diagnosed by the physician at the hospital a week earlier. For these reasons, I find the disability certificate unpersuasive.
18I give no weight to the treatment and assessment plan proposing the psychological assessment because the pre-screening makes no reference as to why the pre-screening was done in the first place. The pre-screening summary makes no reference to medical records or behaviour reported before the pre-screening took place to suggest a psychological assessment may be required. It appears that the pre-screening was conducted solely for purpose of providing evidence in support of a psychological assessment in the absence of other evidence. This is also referenced in the additional comments section of the treatment plan which states (t)he purpose of this report is to explain and provide evidence showing why (the applicant) will require a psychological assessment. Considering the absence of evidence in the medical record to indicate the need for further inquiry, I find the treatment and assessment plan unnecessary.
19Contemplating the above and the evidence before me, I find that the applicant’s injuries are minor as defined by the Schedule. Outside the evidence I have addressed above, I find no documents which support an opinion the applicant’s injuries are outside the MIG. The applicant has not provided any family physician records to suggest non-MIG injuries, the hospital records have no mention of anything other than soft tissue injuries, and the treatment records make no indication of a psychological injury. Lastly, the only expert opinion before me is that of Michelle Kershaw, kinesiologist, who conducted a functional abilities assessment and authored a report dated March 7, 2016. The functional abilities evaluation report considers the evidence provided by the applicant for this hearing yet it makes no reference to any psychological injury, issue, or symptom.
HAS THE CLAIM BEEN PROPERLY ADJUSTED?
20The applicant submits the respondent has failed to properly adjust the claim for benefits, entitling the applicant to the disputed assessment. Specifically, the applicant takes the position the respondent ignored the reasons Dr. Kirshner provided with the treatment and assessment plan and that the respondent is required to refer the disputed psychological assessment to an independent medical examination. The applicant holds the respondent should be prohibited from denying the assessment for the above reasons.
21The respondent takes the positon that there is no obligation for the respondent to submit the applicant to a section 44 assessment. The respondent submits the applicant has not provided any additional medical information which would prompt an assessment.
22Considering the Schedule, submissions, and my finding that the subject treatment plan holds no weight as a medical opinion, I find the respondent has properly adjusted the applicant’s claim. The respondent has provided responses to the treatment plans within the applicable timelines and has provided medical reasons with clear and unequivocal denials. The applicant has not provided any statutory requirement or precedent which indicates the respondent is obliged to obtain an independent medical opinion on a treatment plan. Both section 38(10) and section 44(1) of the Schedule state an insurer may notify the insured person of a section 44 assessment, indicating there is no obligation to do so.
CONCLUSION
23I find the applicant’s injuries as a result of the accident are minor injuries as defined by the Schedule and are subject to the $3,500.00 funding limit on treatment. The applicant is not entitled to the disputed benefits claimed because the applicant is subject to the funding limit prescribed in the MIG.
24The applicant’s appeal on all issues in dispute is dismissed.
Released: December 3, 2018
___________________________
Brian Norris
Adjudicator