Tribunal File Number: 17-003825/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:
A.R.
Applicant
and
RBC Insurance Company
Respondent
DECISION
ADJUDICATOR: Rakesh Sharma
APPEARANCES:
Representative for the Applicant: Elena Pelz
Counsel for the Respondent: Samantha Mason
Heard in writing on: December 8, 2017
OVERVIEW
1The applicant was injured in an automobile accident on June 24, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (Schedule).
2The applicant applied for the medical benefits that were denied by the respondent because the applicant was placed into the Minor Injury Guideline (MIG). The applicant disagreed with the decision and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).
3The parties participated in a case conference but were unable to resolve the issues in dispute, resulting in an Order from the Tribunal, dated October 4, 2017, for a written hearing to be conducted on the issues listed in the order.
ISSUE ADDED BY THE APPLICANT
4The applicant in the submissions added an issue in dispute that did not form part of the original Order:
(i) Are the applicant’s injuries considered predominantly minor?
5The respondent in its submissions responded to the issue raised by the applicant. Therefore, I shall address it as an issue in dispute forming part of the written hearing.
ISSUES IN DISPUTE
6The following are the issues to be decided at this hearing:
i. Are the applicant’s injuries predominantly minor injuries as defined in section 3 of the Schedule to fall within the MIG and subject to treatment within the
$3,500 monetary limit stated under section 18 of the Schedule?
ii. Is the applicant entitled to receive a medical benefit of $1,297.25 for physiotherapy treatment pursuant to a Treatment and Assessment Plan (OCF-18) completed by New Hope Physiotherapy, submitted on May 9, 2016 and denied on May 22, 2016?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7Based on the totality of the evidence before me, I find that:
i. The applicant’s impairment is predominantly a minor injury and therefore she remains within the MIG.
ii. As the applicant has predominately minor injuries as defined in the Schedule and the MIG limits have been exhausted, it is therefore unnecessary to consider whether the treatment plan in dispute is reasonable and necessary and the issue of interest on any overdue payments.
Issue:
(i) Are the applicant’s injuries predominantly minor injuries as defined in section 3 of the Schedule to fall within the MIG and subject to treatment within the $3,500 monetary limit stated under section 18 of the Schedule?
The Law:
The Minor Injury Guideline (MIG):
8The 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.
Requirements to be removed from the MIG:
9Pursuant to Sections 18(1)-(2), in order for the applicant to be out of the MIG, the applicant has to prove on the balance of probabilities that:
i. The injuries sustained due to the accident are predominantly not minor injuries as defined under Section 3 of the Schedule; or
ii. Based on compelling medical evidence, that, despite sustaining predominantly minor injuries, the applicant has a pre-existing medical condition, documented prior to the accident that will prevent her from achieving maximal recovery if benefits are limited to the MIG limit.
EVIDENCE AND ANALYSIS:
10The applicant asserts to be out of the MIG on the basis that:
i. The pre-existing psychological injury of major depressive disorder diagnosed on November 24, 2014 by Dr. Dhaliwal (Psychiatrist) would complicate treatment of the applicant’s accident related physical complaints, if subjected to the MIG.
11The applicant states that as a result of the accident on June 24, 2015 she sustained injuries to neck, back, shoulders and chronic cervicogenic headaches resulting into exacerbation of depression causing further stress, anxiety, nervousness, social withdrawal and insomnia. After the accident she attended a walk-in clinic and was prescribed anti-inflammatory medication. The applicant states that the family doctor notes show that the applicant had pain and tenderness in the neck and upper back. The applicant admits that she sustained minor physical injuries in the accident but the pre-existing psychological injuries would prevent maximal recovery of her accident related physical injuries, if subjected to the MIG limit. The applicant did not submit the family doctor notes as evidence.
12The applicant has not submitted any compelling medical evidence in support of the assertions that the pre-existing psychological impairments and their exacerbation post-accident will prevent the applicant from achieving the maximal recovery of physical injuries within the MIG limit. The applicant has not submitted any medical report or clinical notes and records of Dr. Dhaliwal (Psychiatrist) or of the family doctor documenting a pre-existing major depressive disorder diagnosis on November 24, 2014. Nor has the applicant provided any medical evidence that the diagnosis of major depressive disorder would complicate treatment of accident related physical complaints, if she is subjected to the MIG limit.
13The respondent submitted that the Treatment Confirmation Form (OCF-23) was approved (Respondent Tab1) and indicated the injuries were minor injuries as outlined in the Schedule. The respondent did not receive a Minor Injury Discharge Report (OCF-24) or a Disability Certificate (OCF-3) suggesting that the applicant requires treatment outside of the MIG. Further, the applicant has not submitted a Treatment and Assessment Plan (OCF-18) proposing psychological treatment as a result of the accident.
14In order to claim a medical benefit over the MIG limit, the applicant submitted to the respondent a Treatment Plan and Assessment Plan (OCF-18) dated May 9, 2016 for $1,297.25 for physiotherapy treatment completed by a physiotherapist. The respondent’s letter dated May 22, 2016 denied the said Treatment and Assessment Plan (OCF-18) (Respondent Tab 2) stating the reasons that the applicant sustained a minor injury. The denial letter also stated that the maximum amount of $3,500 payable for medical and rehabilitation expenses had already been exhausted. The respondent set up an insurer examination with Dr. Michael Lang (Physiatrist) to determine if the MIG applied to the applicant. The treatment plan in dispute has not been submitted as evidence by either party.
15The insurer examination report dated July 22, 2016 (Respondent Tab 3) indicates that the insurer examination assessor Dr. Michael Lang (Physiatrist) reviewed the disputed OCF-18. Based on the physical examination findings, Dr. Lang diagnosed the applicant with soft tissue injury at right upper trapezius muscle, right shoulder girdle and symptoms related to physical deconditioning in the form of postural back pain at thoracolumbar junction. Dr. Lang noted that there was no prior musculoskeletal history.
16Dr. Lang stated in his report dated July 22, 2016 that the findings are consistent with soft tissue injuries that meet the Minor Injury definition in the Schedule and that there is no compelling evidence of a pre-existing medical condition that would affect musculoskeletal recovery. Dr. Lang noted the applicant’s reference in the Treatment and Assessment Plan (OCF-18) in which it is indicated that her depression has exacerbated. In response, Dr. Lang stated that “comment on the influence of her pre-existing depression is deferred to the psychological examiner”. Dr. Lang concluded that the Treatment and Assessment Plan (OCF18) in dispute is not reasonable and necessary (Respondent Tab 3).
17The applicant’s submissions do not consist of a report or clinical notes and records from her psychiatrist regarding pre-existing depression. Nor do the applicant’s submissions include medical evidence that the pre-existing depression would prevent the applicant from attaining maximal recovery of the physical injuries, if she is subjected to the MIG limit. I find that the applicant has not submitted any evidence contrary to the findings of Dr. Lang. In sum, there is complete lack of compelling evidence on the part of the applicant to prove on the balance of probabilities that the applicant suffers from a pre-existing psychological condition and this condition would prevent the applicant from attaining maximal recovery of the physical injuries within the MIG limits.
18I concur with the conclusion of Dr. Lang that the applicant sustained soft tissue injury and there is no pre-existing medical condition that would affect musculoskeletal recovery. Therefore the applicant remains within the MIG.
19Since, I have found the applicant to be within the MIG and the applicant has exhausted the $3500 limit under the MIG, I do not need to address the second and third issues, (ii) whether the cost of the Treatment and Assessment Plan (OCF-18) in dispute in the amount of $1297.25 is reasonable and necessary and
(iii) whether the applicant is entitled to interest on any overdue payment of benefits.
Released: June 25, 2018
Rakesh Sharma
Adjudicator