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:
P.S.
Appellant(s)
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Aggrey Msosa
APPEARANCES:
For the applicant: Alexi Antonov, Counsel
For the respondent: Michael McChesney, Counsel
Written Hearing on: November 12, 2018
OVERVIEW
1The Applicant was injured in an automobile accident (“the accident”) on September 15, 2016 and sought insurance 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” as defined in s. 3(1) of the Schedule, and therefore, are subject to a limit of $3,500 for medical and rehabilitation benefits as defined in s. 18(1). Minor injuries are dealt with under a treatment protocol called the Minor Injury Guideline2 (“the MIG”). The applicant disagrees.
3If the applicant’s position is correct, then I must determine if the medical treatment claimed are reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits, 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.
5The applicant is also seeking attendant care benefits (ACBs). Section 14.2 restricts the payment of ACBs to persons whose injuries are not minor as defined by the Schedule. Accordingly, if I find that the applicant’s injuries are minor, I will not need to determine whether his claim for an attendant care needs assessment is reasonable and necessary.
ISSUES
6Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited to $3,500?
7If the applicant’s injuries are not minor, then I must determine the following issues:
i. Is the applicant entitled to receive a medical benefit in the amount of $3,327.60 for physiotherapy services, recommended by Prime Healthcare Inc. in a treatment plan that was submitted on January 13, 2017, denied by the respondent on February 16, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $205.10 representing initial claim of $1,305.10 for physiotherapy services, recommended by Prime Healthcare Inc. in a treatment plan that was submitted on March 22, 2017, denied by the respondent on March 24, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,886.80 for physiotherapy services, recommended by Prime Healthcare Inc. in a treatment plan that was submitted on April 17, 2017, denied by the respondent on April 26, 2017?
iv. Is the applicant entitled to receive payment for the cost of examination in the amount of $1,230.92 for an assessment of attendant care needs, performed by Prime Healthcare Inc., submitted to the respondent on February 15, 2017, denied by the respondent on February 17, 2017?
v. Is the applicant entitled to receive payment for the cost of examination in the amount of $2,000.00 for a psychological assessment, performed by Prime Healthcare Inc., submitted to the respondent on April 10, 2017, denied by the respondent on April 20, 2017?
vi. Is the applicant entitled to receive an award under Ontario Regulation 664 because the respondent unreasonably withheld the payment of income replacement benefits?
vii. Is the applicant entitled to receive interest on the overdue amounts?
RESULT
8I find that the applicant’s injuries are minor. It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest and an award under Ontario Regulation 664.
ANALYSIS
Minor Injuries
9Section 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 and includes any clinically associated sequelae to such an injury.” The Schedule also defines what these terms for injuries mean.
10Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
11The onus is on the applicant to show that his injuries are not minor3
Did the applicant sustain predominantly minor physical injuries?
12I find that the evidence establishes that the applicant sustained a physical injury or injuries that are predominantly minor.
13The applicant relies on the following to support his claim:
a. Since the accident, he suffers from back and neck strain.
b. He has psychological impairments that are outside of the definition of minor injury.
c. A Disability Certificate (OCF-3) prepared by Dr. Viyvyen Le, a Chiropractor, of Prime Health Care dated January 17, 2017 that list his injuries as sprain/strain of cervical spine; sprain/strain of lumbar spine; right knee sprain/strain; bilateral shoulder sprain/strain; bilateral thumb sprain/strain; post traumatic headaches; anxiety disorder and sleep disorder.
d. Dr. Le recommended physical therapy, massage and acupuncture and that the applicant can return to work on modified duties. Dr. Le concluded that the applicant’s recovery is more that 12 weeks as he has multiple barriers to recovery such as emotional and sleep disturbance.4
8The applicant argues that the respondent failed to conduct s.44 examinations to properly assess the applicant’s injuries and has no independent medical evidence to refute the medical evidence provided by the applicant or to determine whether his injuries fall within or outside of the MIG.
14The respondent submits the following to rebut the applicant’s claim:
a. Medical records from Brampton Civic Hospital where the applicant attended following the accident indicate a notation of “back and neck strain”. X-rays of the applicant’s chest, thoracic spine and lumbar spine show no abnormalities.
b. The hospital records do not indicate any impairment that would remove the applicant from the MIG.
c. The respondent contends that all the injuries listed on the Disability Certificate prepared by Dr. Le on January 17, 2017 are minor, except anxiety which is outside of the scope of the chiropractor’s expertise.
d. No records have been submitted of the applicant’s family physician.
e. The Decoded OHIP summary shows the applicant has not received any health care services between the accident and January 21, 2018, the end of the summary, except when he was seen for ear problems unrelated to the accident.
f. There is no evidence that the applicant has received any treatment since the accident, except for physiotherapy.
g. There is no evidence that the applicant has a pre-existing medical condition that would prevent medical recovery if he is subject to the $3,500 limit.
h. No compelling medical evidence has been provided to establish that maximal medical recovery cannot be reached within the MIG.5
15I find that the applicant’s physical injuries are “minor injuries” as defined by the Schedule. The medical evidence submitted by the applicant show that the applicant’s injuries consisted of sprain/strain of cervical spine, lumbar spine, right knee, bilateral shoulder and bilateral thumb. This is set out in the Disability Certificate prepared Dr. Le the applicant’s chiropractor.
16Dr. Le recommended physical therapy, massage and acupuncture and indicated that the applicant can return to work on modified duties. Dr. Le concluded that the applicant’s recovery is more than 12 weeks as he has multiple barriers to recovery. There were no further details provided as to what these multiple barriers refer to.1
17Dr. Le determined that the applicant, who was working as a truck driver, could return to work on modified hours or duties. There is no evidence within the OCF-3 that the applicant has a current or pre-existing condition or impairment that might affect his ability to return to modified work/duties. The applicant admits that he returned to work four days after the accident. I note that the medical records from Brampton Civic Hospital, where the applicant attended after the accident, confirm that the applicant’s injuries were minor and diagnostics of his chest, thoracic and lumbar spine were normal. The lack of medical evidence described above and the also the absence of the applicant’s family physician records led to my conclusion that he has not met his onus with respect to his physical impairments.
Does the applicant have a psychological impairment?
18The applicant claims that he sustained a psychological injury as a result of the accident that place his claim outside of the MIG.
19Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.
20I considered the relevance of the psychological injuries outlined in the OCF-3 by Dr. Le describing that the applicant suffers from anxiety and sleep disorders. I agree with the respondent that such a diagnosis is outside of the scope of the chiropractor and therefore I have t given it very little weight.
21The only substantive evidence about the applicant’s psychological injuries are found in the Psychological Pre-Screen Interview Report dated April 11, 2017 by Dr. Shaul and Ms. Hellen Illios that the applicant requires a comprehensive psychological assessment. Dr. Shaul’s report was based entirely on verbal interview and no psychological testing was done. I do not find any reference in the medical records submitted by the applicant that indicate he suffered a psychological injury that warranted an assessment. All of the medical evidence indicates that the applicant suffered a minor injury that can be treated within MIG.
22I also find that there is a lack of medical evidence to support psychological injuries from the applicant’s family physician as the applicant did not provide the clinical notes and records. These records would have been helpful in determining whether the applicant consulted his family doctor about any psychological injuries to warrant a psychological assessment.
23Based on the above, I find that the applicant has not proven he has a psychological injury that would take him out of the MIG.
Does the applicant have any pre-existing conditions?
24Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.6
25The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. It must be shown to prevent maximal recovery within the cap imposed by the MIG. The MIG requires compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.
26The applicant has not provided any medical evidence to indicate that he suffers from a pre-existing condition that would remove him from MIG. As noted earlier, the applicant has not provided clinical notes and records from his family doctor to show that he had pre-existing condition. The onus is on the applicant to prove his case.
Reasonable and Necessary
27Because I have found the applicant’s injuries are minor, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.
28The applicant has also argued that the respondent failed to conduct s.44 examinations to properly assess the applicant’s injuries and has no independent medical evidence to refute the medical evidence provided by the applicant or to determine whether his injuries are minor. The onus of proof is on the applicant and there is no obligation in the Schedule for the respondent to conduct its own examinations pursuant to s. 44. The respondent was apparently satisfied, and I agree, that the applicant’s injuries are minor.
CONCLUSION
29For 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 plans claimed in this application. As such no interest or an award under Ontario Regulation 664 is payable. His application is dismissed.
Released: July 10, 2019
Aggrey Msosa
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, 2015 ONSC 3635 para.24
- Applicant’s submissions
- Respondent’s submissions
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.