H.M.L. v. The Personal Insurance Company, 2019 CanLII 94061

Citation: H.M.L. vs. The Personal Insruance Company, 2019 ONLAT 18-003866/AABS

Tribunal File Number: 18-003866/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:

H. M. L.

Applicant

and

The Personal Insruance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: L. Kathleen Watson, Counsel

HEARD in writing on: April 23, 2019

OVERVIEW

1The applicant was injured in an automobile accident on April 1, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Did the applicant sustain predominantly minor injures as defined under the Schedule and subject to the $3,500.00 funding cap?

2. Is the applicant entitled to a medical benefit in the amount of $45.00 for ambulance services, submitted to the respondent April 29, 2016?

3. Is the applicant entitled to a medical benefit in the amount of $765.00 for chiropractic treatment recommended by Mississauga Active Physiotherapy Service in a treatment plan dated July 8, 2016?

4. Is the applicant entitled to the cost of examination in the amount of $1,800.00 for an attendant care assessment recommended by Perfect Physio & Rehab Centre in a treatment plan dated April 6, 2016?

5. Is the applicant entitled to the cost of examination in the amount of $1,349.98 for a functional ability evaluation recommended by Mississauga Active Physiotherapy in a treatment plan dated July 27, 2016?

6. Is the applicant entitled to the cost of examination in the amount of $2,200.00 for a chronic pain assessment recommended by Mississauga Active Physiotherapy Service in a treatment plan dated October 28, 2016?

7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is unsuccessful on all issues.

BACKGROUND

4The applicant was the driver of a vehicle which collided with another vehicle on a busy urban highway, causing the applicant’s vehicle to flip upside down. EMS transported the applicant to the hospital where the applicant received sutures for a laceration above the right eye. X-Rays and an MRI performed at the hospital were negative. The applicant commenced treatment with Mississauga Active Physiotherapy about 3 days following the accident. The applicant visited Dr. El Sabawy, family physician, about 6 days following the accident due to right wrist and thumb pain and again about 3 weeks after the accident on April 22, 2016. Dr. Sabawy did not refer the applicant to any specialist but advised on psychotherapy and physiotherapy.

5The respondent characterized the applicant’s injuries as predominantly minor in nature and falling within the Minor Injury Guideline (“MIG”). The applicant disagrees and seeks a finding the injuries are not subject to the MIG and the disputed treatment and assessment plans are reasonable and necessary.

THE MINOR INJURY GUIDELINE

6There is a monetary limit available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3 of 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.

7If the applicant’s injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the injuries are not within the definition of the MIG, and the related funding limit, should not apply.

8The applicant claims to suffer from post-traumatic stress disorder (“PTSD”) and chronic pain, injuries which the applicant submits are not within the MIG definition and as a result, the MIG funding limit should not apply.

POST-TRAUMATIC STRESS DISORDER

9The applicant claims to suffer from PTSD and submits this psychological injury is not included within the MIG. The respondent submits the applicant has not proven on a balance of probabilities this is the case.

10For the following reasons, I find the applicant has not suffered a psychological injury which warrants removal from the MIG.

11The applicant claims Dr. El Sabawy’s notes from the applicant’s visits on April 22, May 3, 2016, and February 7, 2017, and the psychological assessment pre-screening report dated July 20, 2016 are evidence the applicant suffers from a psychological injury which warrants removal from the MIG.

12The respondent relies on the psychological assessment of Dr. G. Dancyger, psychologist, dated September 1, 2016 in rebuttal (“the Dancyger report”). The respondent submits the Dancyger report found the applicant was exaggerating psychological symptoms and concluded the applicant does not have a psychological condition which would remove the applicant from the MIG. The Dancyger report found the applicant’s test results invalid and suggested the applicant made a lack of effort or distorted or exaggerated complaints during testing. However, Dr. Dancyger commented on the applicant’s clinical presentation, noting the applicant did not appear anxious or depressed. Dr. Dancyger also noted the applicant continues to drive and concluded the applicant did not report symptoms to reach the criteria of a phobia or PTSD.

13I find the clinical notes and records of Dr. El Sabawy fail to establish the applicant has a psychological injury which warrants removal from the MIG. While I recognise Dr. El Sabawy noted the applicant showed some psychological symptoms, it appears the family physician personally counselled the applicant during the clinical visit and did not refer the applicant to any specialist or for further examination. I infer from this inaction, Dr. El Sabawy concluded the applicant’s psychological symptoms did not warrant further intervention. This is unlike other situations where Dr. El Sabawy referred the applicant to the related specialist. An example of this is when the applicant was referred to Dr. Temple, neurologist, in August 2016 due to complaints of a neurological nature however, Dr. Temple found no need to recommend any specific treatment.

14I find the psychological pre-screen report less persuasive than the Dancyger report because it was conducted for the purposes of bolstering a claim for a psychological assessment. The psychological pre-screen notes expressly stated “the purpose of this report is to explain and provide evidence to show why (the applicant) will require a psychological assessment and counselling”. This shows the assessor predetermined the applicant will require psychological intervention, which is contrary to the purpose of a psychological assessment which is to determine the extent of the applicant’s psychological injuries and the appropriate treatment, if required.

CHRONIC PAIN

15The applicant claims to suffer from chronic pain, a condition the applicant submits is not included in the MIG. The applicant submits the evidence shows the applicant has not recovered within the usual healing time seen with soft tissue injuries and continues to suffer from ongoing neck pain. The applicant relies on several decisions from the Financial Services Commission of Ontario (“FSCO”) to support this position. The respondent disagrees and submits the applicant has failed to establish a pattern beyond intermittent pain outside the natural hearing time.

16I have reviewed the evidence and submissions and find the applicant does not have a chronic pain condition which warrants removal from the MIG because there is no evidence the applicant suffers from constant and ongoing pain which causes a functional impairment. The applicant’s accident-related pain complaints are primarily within the first 4 months after the accident and are inconsistent after that. This includes visits to Dr. El Sabawy’s office for other medical issues unrelated to the accident, where there is no mention of ongoing neck pain. The applicant’s intermittent pain does not appear to have had a considerable impact on the applicant’s functionality - the applicant has returned to work and has travelled overseas following the accident.

17The FSCO decisions cited by the applicant are not binding on the Tribunal and have been supplanted by decisions by this Tribunal.

MEDICAL AND OTHER REASONS

18Although I have found the applicant’s injuries are minor as defined by the Schedule, the applicant may still be entitled to some of the disputed benefits if the respondent failed to deny the benefit in accordance with section 38(8).

19The applicant claims the respondent denied the benefits by only relying on the determination the applicant’s injuries are predominantly minor. The applicant submits the respondent did not provide the medical and all the other reasons why it refused to pay for the treatment and assessment plans. The respondent disagrees and submits all treatment plans were responded to in within the requirements of section 38(8).

20I find the applicant’s argument is too broad. The applicant must identify the specific denial which does not include medical and other reasons and must explain why the denials are not medical and other reasons to advance this argument.

21The one treatment and assessment plan expressly referred to in written submissions proposes an in-home assessment for the cost of $1,800.00, dated April 6, 2016. The applicant submits this treatment and assessment plan is payable because the respondent failed to provide medical and other reasons. The respondent submits the plan was denied because the applicant was within the MIG and the expense is not payable because the assessment was incurred prior to submitting the plan on April 27, 2016.

22I find the treatment and assessment plan not payable because the assessment was incurred prior to the submission of the plan and contrary to section 38(2). The exceptions outlined in section 38(2) are not satisfied; the respondent did not state it would pay the expense without a treatment and assessment plan; the expense is not for an ambulance of other emergency services; the expense is not for drugs or under $250.00; and the respondent did not agree it is essential for the treatment or rehabilitation of the insured person. As analysis of the medical and other reasons is unnecessary.

ENTITLEMENT TO AMBULANCE SERVICES

23The applicant claims entitlement to ambulance services in the amount of $45.00. The respondent submits the applicant has access to two collateral benefits providers and must first submit the expense to both before the respondent will consider it.

24Collateral benefits are addressed in section 47. Relevant to this matter is section 47(2). This section provides the respondent is not liable to pay for an expense which payment is reasonably available under any insurance plan available to the applicant.

25I find the applicant is not entitled to the amount claimed because the applicant has not submitted the claim to both collateral benefits providers pursuant to section 47(2). The evidence before me shows the applicant has two collateral benefits providers, one of which reimbursed the applicant in the amount of $36.00. There is no evidence to show the balance of the expense has been submitted to the other collateral insurer.

ENTITLEMENT TO THE DISPUTED TREATMENT AND ASSESSMENT PLANS

26There is no evidence before me to confirm the applicant has exhausted the $3,500.00 funding limit provided by the MIG. Likewise, there is no evidence to confirm the disputed treatment and assessment plans were denied pursuant to section 38(5). Considering this, I will address whether the disputed treatment and assessment plans were reasonable and necessary.

27I find the applicant has not established the treatment and assessment plans are reasonable and necessary for the following reasons.

28The applicant submits the disputed treatment and assessment plans are reasonable and necessary but does not say why or how this determination is made. The onus is on the applicant to prove the plans are reasonable and necessary. This point was raised in the respondent’s submissions but the applicant chose not to address this argument despite having an opportunity to reply. As a result, the applicant has failed to meet the evidentiary burden to establish the treatment and assessment plans are reasonable and necessary.

INTEREST

29The applicant is not entitled to interest because no payments went overdue.

CONCLUSION

30The applicant’s injuries are predominantly minor and subject to the MIG. The ambulance fees are not payable because the expense was not submitted to the applicant’s collateral benefits providers. The applicant is not entitled to the disputed treatment and assessment plans because the applicant has not established the they are reasonable and necessary. No interest is payable.