Licence Appeal Tribunal
Tribunal File Number: 19-002046/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:
A.P.
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Julia Logoutova, Paralegal
For the Respondent: Navid Ghahraei, Counsel
Written Hearing: February 7, 2020
OVERVIEW
1A.P. was injured in an accident on March 20, 2017 and sought benefits from the respondent, Security National, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). A.P. applied for rehabilitation benefits that were denied by Security National because his injuries were predominately minor and therefore subject to the Minor Injury Guideline (“MIG”). A.P. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following issues are in dispute, according to the Case Conference Order:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. If the applicant did not sustain predominantly minor injuries:
a. Is the applicant entitled to a medical benefit in the amount of $2,894.33 for physiotherapy services provided by East Sheppard Rehabilitation as set out in a treatment and assessment plan dated July 14, 2017 and denied by the respondent on August 15, 2017?
b. Is the applicant entitled to a medical benefit in the amount of $1,603.57 for physiotherapy services provided by East Sheppard Rehabilitation as set out in a treatment and assessment plan dated November 3, 2017 and denied by the respondent on November 17, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3A.P. has not demonstrated that his impairments warrant treatment beyond the MIG. Accordingly, the treatment plans in dispute are not reasonable and necessary and no interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
4I find the medical evidence indicates that A.P. suffered predominately minor physical injuries as a result of the accident. The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. A.P. must establish entitlement to coverage beyond the limit on a balance of probabilities.
5A.P. submits that the impairments he sustained as a result of the accident—described in the Disability Certificate (“OCF-3”) prepared by Dr. Bruni as acute pain, headache, depressive episode, pain in upper limb, malaise and fatigue, pain in joint, disorder of sleep/wake schedule, “low back” and nervousness—warrant treatment beyond the MIG due to their affect on A.P.’s activities of daily living.
6In addition to the OCF-3, A.P. relies on the following: a Minor Injury Discharge report prepared by Dr. Bruni from June 16, 2017; a Progress Report from the same date indicating continued pain in his head, neck, knees and shoulders rated at 7/10 on the pain scale; a second Progress Report from July 14, 2017 indicating some improvement but suggesting A.P. was suffering from chronic pain; a third Progress Report from November 3, 2017 indicating a decrease in sitting/standing/walking tolerance despite treatment; various attendance records and an x-ray from September 2017 opining that a “subtle reversal in the lower cervical spine may be due to a muscle spasm” and that there is no sequelae from the accident.
7In response, Security National argues that the injuries alleged by A.P. are all soft-tissue in nature and fall within the definition of minor injuries under the Schedule. Security National relies on the result of two insurer’s examinations: a September 2017 report from Dr. Naaman, physiatrist, diagnosing A.P. with “lumbar sprain/strain, headaches, resolving, and cervical sprain/strain, resolved” and a September 2017 report from Dr. Mor, psychologist, who does not diagnose a psychological impairment.
8I agree with Security National. On the evidence, I find the injuries listed in the medical documentation consistently indicate that the injuries A.P. suffered were predominantly minor. The Minor Injury Discharge report alone offers little to suggest that A.P.’s physical injuries and alleged pain are severe enough to require treatment beyond the MIG, as Dr. Bruni identifies the physical impairments as acute pain, headache, pain in upper limb, pain in joint and “low back”. I find these impairments fall squarely within the minor injury category as there is no information to distinguish these impairments from typical sprain and strain-type injuries, which was also confirmed in the report from Dr. Naaman and the x-ray from September 2017 revealing a muscle spasm. Indeed, A.P. did not provide any clinical notes and records from a family physician to demonstrate an objective medical opinion or to corroborate the severity of his impairments. As no recent clinical notes or records were provided either, it remains unclear whether A.P. has continued treatment or what his current function is.
9In any event, I find the disability tests that Dr. Bruni claims A.P. meets in Part 6 of the OCF-3—the boxes for all of the income replacement benefit test, the stringent non-earner benefit test and housekeeping and home maintenance benefits are all checked—are so disproportionate to the injuries identified in the medical documentation, the treatment A.P. received post-accident and the fact A.P. returned to work as an accountant, that I questioned the credibility of all of Dr. Bruni’s opinions and treatment recommendations elsewhere in the file. Even if I accept that A.P. has lingering physical pain that can be definitively traced to the accident—which the x-ray report specifically ruled out—I find that A.P. has not demonstrated that recovery from his pain is practically prevented if he is kept within the MIG or that he suffers from chronic pain that causes functional impairment or disability.
10The psychological impairments—identified as depressive episode, malaise and fatigue, disorder of sleep/wake schedule and nervousness—are also not of a severity to warrant removal from the MIG as there is no corroborating or continuous evidence that these impairments affect A.P. on a daily basis. Further, the psychological report of Dr. Mor does not identify any emotional difficulties or clinically-significant basis to arrive at any psychological diagnosis, let alone evidence of development of ongoing, substantive and residual post-traumatic symptomology or clinically-significant psychological distress required to support removal from the MIG. Finally, A.P.’s file is unremarkable for any pre-existing impairments, documented by a medical practitioner, that would prevent his recovery under the MIG.
11Accordingly, I find A.P. sustained impairments that do not warrant removal from the MIG, as he sustained predominantly minor injuries. As A.P.’s injuries are treatable within the MIG, it is unnecessary to consider the treatment plans in dispute.
CONCLUSION
12A.P. has not demonstrated that he sustained impairments as a result of the accident that justify removal from the MIG. As A.P.’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, it follows that no interest is payable.
Released: February 12, 2020
___________________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.