Tribunal File Number: 17-007714/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.U.
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Melody Maleki-Yazdi
APPEARANCES:
Counsel for the Applicant: Arvin Gupta
Counsel for the Respondent: Brenda M. Cuneo
Written Hearing on: June 28, 2018
OVERVIEW
1S.U. (“the applicant”) was injured in an automobile accident (“the accident”) on June 2, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.
2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (“the MIG”). The applicant’s position is the opposite.
3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES
4Did the applicant sustain predominantly minor injuries as defined by the Schedule?
5If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to receive a medical benefit for chiropractic treatment, in the amount of $4,224.95, that was recommended by Reddy’s Physio Rehab in a treatment plan submitted to the respondent on January 21, 2016 and denied on March 1, 2016?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant’s injuries fall within the MIG. Accordingly, he is not entitled to the treatment plan claimed in this application. Further, since there is no outstanding payment of benefits, there can be no basis for interest and interest is therefore not payable.
ANALYSIS
The Minor Injury Guideline
7Section 3(1) of the Schedule defines a “minor injury” 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 MIG defines what these terms for injuries mean.
8Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.
9The onus is on the applicant to show that his injuries fall outside of the MIG.3
10I find that the evidence indicates that the applicant sustained a physical injury or injuries that are predominantly minor in nature.
11The applicant filed initial submissions, but did not file reply submissions. In the applicant’s submissions, he does not argue that any particular physical impairment removes him from the MIG. The applicant’s evidence and submissions indicate that he continues to experience ongoing headaches resulting from his accident-related concussion. It is on this basis that he argues that his impairments fall outside of the MIG.
Is the applicant suffering from chronic post-traumatic headaches and post-concussion syndrome that would remove him from the MIG?
12Concussions and post-concussion syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule, and the definition does not include concussion, post-concussion syndrome or trauma to the head. As a result, the symptoms or issues arising from such injuries, such as chronic post-traumatic headaches, cannot be characterized as sequelae to minor injuries.
13To establish his chronic post-traumatic headaches and post-concussion syndrome, the applicant relies on the following:
a. The clinical notes and records of the applicant’s family physician, Dr. Sivakumar Nagamuttu, dated June 3, 2015 (1 day following the accident) indicate that the applicant reported a head injury as a result of the accident. The applicant reported that he had a headache and had vomited once following the accident. At the time of the appointment, he felt nauseous.
b. On April 9, 2018, the applicant attended a section 25 orthopaedic assessment with Dr. Fathi Abuzgaya (orthopaedic surgeon). Dr. Abuzgaya diagnosed the applicant with post-concussion syndrome with sprain-strain injuries to the neck and back which have become chronic in nature. Dr. Abuzgaya concluded that the applicant’s injuries did not fall within the definition of minor injury as the applicant experiences recurrent post-concussion headaches and chronic myofascial pain. Dr. Abuzgaya noted that the applicant would benefit from a multidisciplinary pain management program to ameliorate ongoing pain and improve functioning.
c. A review of the decoded OHIP summary illustrates that there is no other cause for the ongoing symptoms of concussion other than the accident.
14To rebut the applicant’s claim, the respondent relies on the following:
a. The insurer’s examination (“IE”) report of Dr. Shafik Nazerali Dharamshi (family physician) dated March 31, 2016 concluded that the applicant had demonstrated signs of uncomplicated myofascial injuries to his cervical spine and lumbosacral spine. Dr. Dharamshi found that the applicant's impairment falls within the definition of a minor injury as defined by the MIG.
b. There is no evidence that the applicant has experienced ongoing accident-related issues as a result of the accident. There is only one clinical note of the applicant’s family physician dated June 3, 2015 (the day following the accident) that comments on the accident or accident-related injuries. None of the other clinical notes and records of the family physician indicate any ongoing accident-related issues.
c. The applicant’s decoded OHIP summary indicates that on June 18, 2015 he was seen by Dr. Kevin Mudrik (family physician) regarding a concussion. The clinical notes and records of Dr. Mudrik were not provided by the applicant, and therefore the precise nature of this visit is unknown. This was the only time that the applicant consulted with Dr. Mudrik. The applicant’s decoded OHIP summary confirms that he was not seen by any other treating physician post-accident regarding concussion-related symptomatology.
d. The applicant resumed his pre-accident activities of daily living. He reported to Dr. Dharamshi that he returned to his pre-accident employment position as a full-time cook and on regular duties one week following the accident. He reported to both Dr. Dharamshi and Dr. Abuzgaya that he has been independent with personal care tasks and housekeeping tasks, and has returned to driving.
15Both Dr. Dharamshi and Dr. Abuzgaya conducted physical examinations and had interviews with the applicant, resulting in different diagnoses. I have no reason to doubt the qualifications or methods of either doctor, but must assign weight to their evidence.
16I favour Dr. Dharamshi’s report over Dr. Abuzgaya’s report for the following reasons. First, Dr. Abuzgaya’s report notes that he reviewed the clinical notes of Dr. Nagamuttu (the applicant’s family physician). I agree with the respondent that there is only one clinical note from Dr. Nagamuttu dated June 3, 2015 (the day following the accident) that comments on the accident or accident-related injuries. I find that Dr. Abuzgaya’s report is weakened by the fact that his assessment was conducted in April of 2018 and a review of the clinical notes of Dr. Nagamuttu indicate that the applicant did not see his family physician about the accident or accident-related injuries after June 3, 2015.
17Dr. Nagamuttu’s clinical notes and records following the June 3, 2015 appointment focus on the applicant’s health concerns, which include treatment for pre-diabetes, influenza and bronchitis. The decoded OHIP summary indicates that the applicant met with Dr. Mudrik on June 18, 2015 regarding a concussion, but I have not been provided with the clinical notes and records from this visit. Following June 18, 2015, there is no indication that the applicant reported any accident-related symptoms to any physicians.
18Additionally, Dr. Abuzgaya’s report does not convince me that the applicant experiences chronic headaches. The applicant reported to Dr. Dharamshi that he experiences intermittent headaches that occur on the top of his head. Dr. Abuzgaya’s report described the frequency of the headaches as recurrent. Therefore, I do not have information from either physician that the applicant experiences chronic headaches. Intermittent and/or recurrent headaches are not the same as chronic headaches.
19Lastly, the applicant is not functionally impaired as a result of his post-accident symptoms. The applicant returned to full-time hours and to his regular duties at work one week following the accident. He told both Dr. Abuzgaya and Dr. Dharamshi that he experiences no notable difficulties with self-care activities, housekeeping and home maintenance activities, and driving.
20I find the respondent’s evidence and arguments more persuasive in refuting the applicant’s claim that he suffers from chronic post-traumatic headaches that indicate post-concussion syndrome. The applicant did not file reply submissions and none of the respondent’s evidence is denied by the applicant.
21I conclude that the applicant has not proven on a balance of probabilities that he has chronic post-traumatic headaches or post-concussion syndrome. Accordingly, he cannot be removed from the MIG on that basis. Therefore, I do not need to conduct an analysis of whether the treatment plan is reasonable and necessary.
CONCLUSION
22For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, he is not entitled to the treatment plan claimed in this application. Further, since there is no outstanding payment of benefits, there can be no basis for interest and interest is therefore not payable.
ii. His application is dismissed.
Released: September 18, 2018
______________________
Melody Maleki-Yazdi
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v Belair Insurance, 2015 ONSC 3635.```