Tribunal File Number: 17-005145/AABS
Case Name: 17-005145 v Certas Home and Auto 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:
[The Applicant]
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Nader Fathi, Representative
For the Respondent: Richard Campbell, Counsel
HEARD: In writing on January 29, 2018
Overview
1The applicant was injured in an automobile accident on July 15, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).The respondent characterized the applicant’s injuries as falling within the Minor Injury Guideline (“MIG”) and refused to pay for certain medical benefits because the applicant had reached the MIG funding limit of $3,500.00. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
Issues
2The disputed issues in this hearing are:
Do the applicant’s injuries fall within the MIG?
Is the applicant entitled to a medical benefit in the amount of $2,495.48 for physiotherapy treatments, recommended by Healthmax Physio Inc. in a treatment and assessment plan dated January 31, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
Result
3The applicant sustained a minor injury and is subject to the MIG funding limit of $3,500.00. The applicant is not entitled to the medical benefit in dispute and no interest is payable.
Background
4The applicant was driving a vehicle which struck the back end of another vehicle on June 12, 2015. The applicant was transported to [the hospital] by EMS where the applicant complained of neck, back, and left wrist pain as well as a numbness and tingling sensation in all extremities. The applicant was seen by hospital staff, however the applicant chose to leave the hospital before x-rays were performed and before any diagnosis was rendered. Following this, the applicant sought and received the full complement of treatment under the MIG. The applicant applied for further treatment but the respondent denied funding for this because the MIG funding limit of $3,500.00 was exhausted.
The Minor Injury Guideline
5The 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. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
The applicant’s pre-existing injury
6The applicant submits that the MIG should not apply in this situation as the applicant has a pre-existing injury, an intra-articular fracture in the third (ring) finger, which prevents recovery within the funding limit of $3,500.00. In addition to the finger injury, the applicant submits that the chronicity of the pain the applicant is experiencing requires treatment beyond the MIG.
The applicant’s psychological injury
7From a psychological perspective, the applicant submits that Dr. R. Vitelli, psychologist, conducted a psychological assessment at the applicant’s request on July 26, 2017 and produced a report dated July 31, 2017, outlining the findings of the assessment. In the report, Dr. Vitelli diagnosed the applicant with anxiety and depression. Although not specifically mentioned, I infer the applicant’s position is that psychological injuries fall outside the MIG and that the funding limit of $3,500.00 should not apply.
The respondent’s position
8The respondent submits that the applicant’s injuries are soft tissue injuries that are subject to the MIG and the funding limit it provides. The respondent submits that, although the applicant noted a pre-existing injury in the form of a finger fracture, the applicant has failed to show how the pre-existing injury prohibits recovery within the MIG.
9The respondent submits that the applicant has not suffered from a psychological injury which would require treatment outside the MIG. The respondent further submits that although the applicant has provided a psychological assessment report, there is no independent or corroborating evidence in support of a psychological injury which would open up funding for treatment beyond the MIG.
Analysis
10In order to make a determination that the applicant’s injuries are not minor injuries, I will first assess the psychological injury and then the impact of the applicant’s pre-existing finger fracture on the applicant’s recovery. The case law has established that the burden is on the applicant to provide evidence that the MIG was incorrectly applied and that the applicant is entitled to the disputed claim1.
11After reviewing the submissions and evidence and for the following reasons, I find that the applicant has not suffered from a psychological injury as a result of the accident which would require treatment beyond the MIG. The applicant’s main complaints are pain and not psychological symptoms. The evidence of a psychological injury in unreliable because it is inconsistent with the rest of the applicant’s entire medical record. The applicant’s complaints of pain are evidenced in the clinical notes and records of Dr. D. Mandel, family physician, and the records provided by Health Max Physio Inc. There are virtually no complaints of a psychological injury referenced in any of those records to corroborate the positive findings in Dr. Vitelli’s psychological assessment report.
12I recognize that the lack of complaints of a psychological injury does not preclude me from finding that the applicant has suffered from a psychological injury. What compels me is the difference between the applicant’s medical record and Dr. Vitelli’s conclusion. For example, the clinical notes and records of Health Max Physio Inc. indicate that about 6 months prior to the assessment, the applicant reported working more than usual as a result of being called in to work after hours and complained of pain as a result of the extra work. This is contradictory to Dr. Vitelli’s psychological assessment report, which found the applicant suffers from a psychological injury so debilitating that the applicant is unable to complete the same pre-accident activities at home and work. In the report, Dr. Vitelli confirmed that no medical records were available for review prior to the assessment and therefore, no records were reviewed to help form the opinion in the psychological assessment report. A review of the applicant’s medical records would provide Dr. Vitelli with contradictory complaints by the applicant which compromises the validity of Dr. Vitelli’s findings.
13Regarding the finger fracture, I agree with the respondent that the applicant has not provided evidence to establish that the pre-existing injury would prohibit the applicant from recovering within the MIG. There are no references in the clinical notes and records from the applicant’s family doctor or treating clinic upon which I could conclude that the finger fracture would impact the applicant’s recovery from the injuries as a result of this motor vehicle accident. All of the treatment and assessment plans submitted by the applicant fail to reference the finger fracture as a pre-existing condition, let alone a barrier to recovery. Lastly, Dr. Vitelli’s psychological assessment report documented that the applicant denied any previous medical conditions.
14I disagree with the applicant that the MIG should not apply because the applicant has ongoing complaints of pain. The applicant has not provided any evidence suggesting that the ongoing pain is anything other than sequelae of the soft tissue injuries suffered as a result of the accident. The applicant reported ongoing pain but was not diagnosed with chronic pain syndrome and did not provide credible evidence of a psychological injury.
15The applicant has not met the evidentiary burden to show that the injuries sustained are not minor and do not fall within the MIG. Upon review of the totality of the evidence and submissions, I find that the applicant has suffered from a minor injury as defined by the Schedule and is subject to the MIG funding limit of $3,500.00.
The Physiotherapy treatment plan dated January 31, 2017
16Having found that the applicant is subject to the MIG and accepting that the balance of the MIG funding limits have been paid, I am not required to render an opinion regarding whether the disputed treatment plan is reasonable and necessary.
Conclusion
17The applicant has suffered a minor injury as defined by the Schedule and is subject to the MIG funding limit of $3,500.00.
18The applicant is not entitled to the treatment plan in dispute because it requires funding outside the MIG funding limit.
19There is no interest payable and no payments went overdue.
Released: April 10, 2018
Brian Norris, Adjudicator