Licence Appeal Tribunal
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:
J. W.
Appellant(s)
and
Cooperators General Insurance Co.
Respondent
DECISION
PANEL: Rupinder Hans, Adjudicator
APPEARANCES: For the Applicant: Ioulia Logoutova, Paralegal For the Respondent: Melanie C. Malach, Counsel
HEARD: In Writing on: August 20, 2018
OVERVIEW
1On September 29, 2015, the applicant, J. W., was a front seat passenger in a vehicle involved in a motor vehicle accident. The applicant applied for medical benefits, specifically, three treatment plans related to chiropractic services, physiotherapy services, and a psychological assessment that were denied by the respondent, Cooperators General Insurance Co. The denial was based upon the respondent’s position that the applicant’s injuries were predominantly minor injuries, and thus, treatment of them fell within the Minor Injury Guideline (the “Guideline”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2The applicant disagreed, and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).
ISSUES IN DISPUTE
3Did the applicant sustain predominantly minor injuries as defined by the Schedule?
4If the applicant’s injuries are not within the Guideline, then I must determine the following issues:
i. Is the applicant entitled to receive a medical benefit in the amount of $200.00 ($1,300.00 of which $1,100.00 was approved), for chiropractic services recommended by 101 Physiotherapy, in a treatment plan dated December 14, 2015, and denied by the respondent on December 23, 2015?
ii. Is the applicant entitled to a medical benefit in the amount of $2,909.47 for physiotherapy services recommended by 101 Physiotherapy, in a treatment plan dated February 11, 2016, and denied by the respondent on April 15, 2016?
iii. Is the applicant entitled to payment for the cost of examination in the amount of $2,000.00 for a psychological assessment recommended by 101 Physiotherapy, in a treatment plan dated January 8, 2016, and denied by the respondent on March 21, 2016?
5In her written submissions, the applicant raised another issue for the first time. Specifically, whether $200.00 for a Disability Certificate can be deducted from the $3,500.00 Guideline limit, as the respondent did. The respondent argues that the applicant had ample opportunity to raise any additional issues at the case conference, and she did not raise this issue. The respondent further asserts that this new issue cannot be added at this stage of the proceedings. I am in agreement with the respondent. The applicant did not list this issue in her application, nor raise it during the case conference. Both of which she could have done. I find that there is prejudice to the respondent in having another issue added at this late stage of the proceedings. As such, I will not consider this issue.
RESULT
6Based upon a review of the evidence and submissions, I find that the applicant’s injuries fall within the Guideline, and thus, the medical benefits sought are not payable.
PRELIMINARY ISSUE
7The respondent submits that the application should be dismissed as the applicant failed to comply with the Tribunal’s production order by failing to produce documents and information as required. This included: the name and contact information of the applicant’s family physician, copy of the outstanding amount owing to 101 Physio, and a copy of the applicant’s school file. The respondent further asserts that given her failure to comply, the respondent has been prejudiced by not having the relevant information required to properly assess the applicant’s claim and entitlement to benefits. I agree that this information was relevant evidence in assessing the claim and entitlement to benefits. Nonetheless, I find that the prejudice to the applicant in dismissing her claim without a hearing would be great, when compared to the prejudice to the respondent in not having the information. I decline to dismiss the application.
ANALYSIS
8I will discuss, first, the applicability of the Guideline because it would be a barrier to the payment of the treatment plans; second, the applicant’s entitlement to the medical benefits sought.
A. The Applicability of the Guideline
9The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) 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 “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1). Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.
10The respondent argues that the applicant’s injuries are properly considered minor. In this regard, the respondent correctly relies on the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”). In that case, the Divisional Court reviewed the minor injury provisions in the Schedule, and found that they were a limit on an insurer’s liability, but not an exclusion from coverage, and thus the onus of establishing entitlement beyond the $3,500.00 limit rests with the claimant. Applying Scarlett, the onus is on the applicant to prove that her entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries.
(a) Did the applicant sustain a predominantly minor injury?
i. Does the applicant have a physical impairment that would take her outside of the Guideline?
11I find that the evidence establishes that the applicant sustained a physical impairment that is predominantly a minor injury, and that her entitlement to benefits is therefore subject to the Guideline. The medical evidence suggests that the applicant’s physical injuries fall within the definition of a “minor injury” as listed in section 3(1) of the Schedule.
12In arguing that she should be removed from the Guideline, the applicant relies upon the Disability Certificate, dated October 26, 2015, wherein the applicant is listed as unable to carry on a normal life due to the following injuries: sprain and strain of cervical spine; sprain and strain of thoracic spine; sprain and strain of lumbar spine; sprain and strain of other and unspecified parts of lumbar spine and pelvis; sprain and strain of shoulder joint, NOS; sprain and strain of ribs and sternum; sprain an strain of jaw; sprain and strain elbow; sprain and strain of other and unspecified parts of hand; sprain and strain of hip; sprain and strain of other and unspecified parts of knee; headache; malaise and fatigue; symptoms and signs involving emotional state; nonorganic sleep disorders; and generalized anxiety disorder. I note that this list of impairments is not persuasive without any detailed supporting evidence as to why these impairments took the applicant outside of the Guideline.
13Likewise, the applicant relies upon the treatment plan (OCF-18) prepared by Daisy Beddoe, physiotherapist, dated February 11, 2016 (one of the treatment plans at issue), which lists similar injuries as the Disability Certificate. In addition, the service provider responded in the negative to the question of whether the impairment is predominantly a minor injury as referred to in the Guideline, and recommended further treatment.
14Notably, the applicant has not provided the clinical notes and records of her treating chiropractor, physiotherapist, family physician, or 101 Physiotherapy. The applicant has provided no medical evidence other than the Disability Certificate, the treatment plans, and the IE assessor reports of Dr. Gerry Dancyger and Dr. Muhlstock.
15The respondent relies upon the physiatry assessment report dated April 13, 2016 prepared by Dr. Joshua Muhlstock, physiatrist. Dr. Muhlstock concludes that the applicant sustained soft tissue injuries to the cervical spine, WAD II (at most), and the thoracic and lumbosacral spines as a result of the accident. Further, given that it had been six and a half months since the accident, he opined that any soft tissue injuries sustained would likely have achieved maximum medical recovery from a physiologic perspective. He further notes that there is no objective clinical finding of any physical impairment based upon his evaluation. He concludes that the applicant’s injuries fail within the Guideline.
16I find the report of Dr. Muhlstock persuasive and am convinced by his conclusions. He conducted a thorough physical examination of the applicant and noted that during examination, the applicant reported some tenderness, but this was not associated with any muscle spasm or trigger points. Further, the applicant demonstrated normal strength throughout the clinical examination and there was no evidence of swelling, inflammation or muscle wasting. By contrast, I did not find the applicant’s medical evidence, the Disability Certificate and treatment plans, persuasive in establishing that her physical injuries are not predominantly minor. I note that the applicant did not provide any clinical notes and records or diagnostic imaging to support her position.
17Accordingly, I conclude that the applicant’s physical injuries are soft tissue injuries that fall within the Guideline.
ii. Does the applicant have a psychological impairment that would take her outside of the Guideline?
18The applicant also claims that she sustained psychological injuries as a result of the accident that entitle her to treatment outside the Guideline. Psychological injuries, if established, fall outside the Guideline, because the Guideline only governs “minor injuries” and the prescribed definition does not include psychological impairments.
19In support of a psychological impairment that would take the applicant outside of the Guideline, she relies upon the treatment plan (OCF-18) prepared by Dr. Betty Kershner, psychologist, dated January 8, 2016 (one of the treatment plans at issue). In the additional comments section of the OCF-18, there is a list of the applicant’s complaints, including: low mood, irritability, that she was short tempered and easily frustrated, that it was difficult for her to maintain the household with three children and that she was made to feel dependent on her children. The applicant points out that the respondent’s own IE assessor, Dr. Gerry Dancyger, psychologist, similarly documents the applicant’s frustrations. Dr. Kershner further notes that post-accident the applicant has been in a “bad mood.”
20Conversely, the respondent relies upon the psychological assessment report prepared by its IE assessor, Dr. Gerry Dancyger, psychologist, dated March 7, 2016. Dr. Dancyger notes that the results of the psychological tests suggest a lack of effort on the part of the applicant, an exaggeration of her complaints, some underlying motivation for her complaints that was not being disclosed or of which she may not even be aware. He noted that the tests did not show any valid and objective evidence of a significant and diagnosable accident-related psychological disorder. He noted that when asked about emotional problems, the applicant reported that she was frustrated by the limitations of her pain, and not being able to be as active with her children. Dr. Dancyger found that none of the psychological issues as reported in the OCF-18 prepared by Dr. Betty Kershner on January 8, 2019, were supported by testing. Dr. Dancyger concludes that the applicant’s accident-related injuries were minor in nature and within the Guideline.
21I prefer the report of Dr. Dancyger prepared for the respondent as opposed to the treatment plan relied upon by the applicant. I note that the treatment plan provided limited information as to the psychological impairments the applicant suffered as a result of the accident, and was not persuasive in assisting her in meeting her burden. By contrast, Dr. Dancyger conducted thorough testing and concluded that the applicant did not sustain any diagnosable psychological impairment as a result of the subject accident. The applicant has not met her burden.
22Given the above, I find that the applicant has failed to provide sufficient evidence of any psychological injuries she may have sustained as a result of the accident that would remove her from the Guideline.
23Accordingly, I conclude that the applicant’s injuries fall within the Guideline.
B. The Treatment Plans
24The evidence establishes that the respondent has approved treatment up to the $3,500.00 Guideline limit. I note by letter dated December 23, 2015, the respondent advised that it was partially approving the treatment plan seeking treatment recommended by 101 Physiotherapy up to the $3,500 limit. Thus, the amount of $1,100.00 was approved, and the remaining amount of $200.00, which exceeds the limit, is part of the subject of this application. There are no submissions to the contrary.
25As I have found that the applicant’s injuries fall within the Guideline, and the $3,500.00 maximum benefit for minor injuries has been exhausted, I do not have to make a determination on whether the treatment plans are reasonable and necessary.
ORDER
26For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that fall within the Guideline. Accordingly, she is not entitled to the treatment plans claimed in this application. Her application is dismissed in its entirety.
Released: March 27, 2019
Rupinder Hans
Adjudicator