C.X. v. Belair Direct, 2020 CanLII 30417

C.X. v. Belair Direct, 2020 ONLAT 19-000756/AABS

Citation: C.X. v. Belair Direct, 2020 ONLAT 19-000756/AABS Tribunal File Number: 19-000756/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits

Between:

[C.X.] Applicant

and

BelairDirect Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Applicant: Tal Eshel, Counsel

For the Respondent: Ryland MacDonald, Counsel

HEARD: In Writing on: October 15, 2019

OVERVIEW

1The applicant, [C.X.] (“applicant”), was involved in an automobile accident on September 12, 2016 (“accident”), and sought benefits from the respondent, Unica Insurance Company (“respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”).² The respondent also submits that, even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a medical benefit in the amount of $3,910.64 for chiropractic services recommended by Lifeharmony Rehab Centre Inc. in a treatment plan (OCF-18) submitted on January 30, 2018 and denied on February 13, 2017?

iii. Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,486.00 recommended by Prime + Care Health Centre in an OCF-18 submitted on August 23, 2018 and denied on August 29, 2018?

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

RESULT

4The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plans, cost of the assessment or the issue of interest.

BACKGROUND

5The applicant’s vehicle was T-boned by another vehicle and, as a result, the applicant alleges that he sustained physical and psychological injuries.

6The applicant made a claim for accident benefits and the respondent characterized the applicant’s injuries as falling within the MIG. The respondent refused to pay for the disputed chiropractic treatment plan and the chronic pain assessment because the applicant had consumed all $3,500.00 of funding allotted under the MIG.

LAW AND ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment framework available to an injured person who sustains a minor injury as a result of an accident. A “minor injury” is defined in s. 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.” Under s. 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of minor injury. The applicant can establish that by:

i. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

ii. Establishing an impairment sustained in the accident that is not a predominantly minor injury as defined by the Schedule.

9The onus is on the applicant to show that his or her injuries fall outside of the MIG on a balance of probabilities.³

Did the Applicant Sustain Predominantly Minor Physical Injuries?

10The applicant submits that he should not be subject to the MIG because his physical injuries are not “minor injuries” as defined by the Schedule. In particular, he claims he had a pre-existing condition that prevents maximal recovery within the MIG funding limits and has been diagnosed with conditions that do not fit within the definition of a minor injury, specifically psychological impairment (anxiety and depression) and chronic pain. In support of his submissions, the applicant relies on his application for accident benefits, OCF-3, disability certificate, OCF-18 treatment plan and OCF-24, minor injury treatment discharge report, all of which were completed by Dr. Truong, a chiropractor at the applicant’s treating rehabilitation facility. He also relies on a treatment plan and chronic pain assessment report by Dr. Getahun, an orthopaedic surgeon. The application is not medical evidence and is not helpful in this hearing.

11I find that the applicant’s physical injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. As a result, the applicant is subject to the $3,500.00 MIG limit which has already been paid.

12Dr. Truong’s disability certificate describes the applicant’s injuries as whiplash associated disorder and sprain and strain type injuries. Dr. Getahun’s treatment plan describes the applicant’s physical injuries the same way. These physical injuries are within the definition of minor injuries as defined by the Schedule.

Did the applicant have a pre-existing medical condition that would remove him from the MIG?

13The applicant submits that he had a pre-existing condition of lumbar pain that was exacerbated by the accident.

14The respondent submits the applicant must provide compelling evidence that his pre-existing condition, documented prior to the accident, prevents him from achieving maximal recovery with the MIG limits.⁴

15I agree and find that the applicant has not met this onus. It is the applicant’s onus to prove he is out of the MIG.

16The applicant has not provided compelling medical evidence that he had a pre-existing medical condition, documented prior to the accident, which will prevent him from achieving maximal recovery within the MIG limits. Dr. Truong in the disability certificate does not indicate the applicant has a pre-existing condition that could affect his treatment. Dr. Getahun in the treatment plan does not indicate any pre-existing condition. Although the applicant told Dr. Getahun that he had a pre-existing history of low back pain for the last 15 years or so, he also indicated this was intermittent in nature. According to the records of Dr. Tam, the applicant’s family doctor, filed by the respondent, the applicant’s last complaint of back pain was December 14, 2014 and he did not report any back pain within a year of the accident.

17I find that the applicant has failed to prove how this, or any other pre-existing condition, would prevent him from achieving maximal recovery within the MIG or how any pre-existing condition is related to the accident. The applicant has not provided compelling evidence to prove his pre-existing condition prevents him from achieving maximal recovery within the MIG limits.

18However, the applicant also submits that his psychological impairments and chronic pain remove him from the MIG limits.

Psychological impairment and chronic pain

19I find that the applicant has not proven on a balance of probabilities that he has sustained psychological impairment, specifically anxiety, depression and sleep disturbance, or chronic pain as a result of the accident that would remove him from the MIG.

20Dr. Getahun, the applicant’s orthopaedic surgeon, assessed the applicant, and records that the applicant self-reports anxiety, depression and sleep disturbance. However, Dr. Getahun does not specifically diagnose these medical conditions and only suggests further psychological assessment for the applicant’s self-reported symptoms. Dr. Getahun is a surgeon and not a mental health specialist who is simply recording the applicant’s self-reported psychological symptoms two years post-accident. I give Dr. Getahun’s report little weight. The applicant does not take any medication for this. There is no evidence that the applicant has sought help for this from his family physician. There is no diagnosis from a medical professional qualified in diagnosing psychological impairments. As a result, I have no compelling medical evidence to establish the applicant was diagnosed with anxiety, depression or sleep disturbance as a result of the accident.

21Likewise, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain that justifies treatment beyond the limits of the MIG.

22The applicant’s self reports of pain are not sufficient to establish the medical condition of chronic pain. Dr. Getahun does not specifically diagnose chronic pain or chronic pain syndrome, and notes the applicant is not taking any medications. Dr. Khaled does not diagnose chronic pain. With respect to back pain, Dr. Getahun reports that the applicant complained of intermittent lower back pain with the primary limitation being prolonged sitting. Dr. Khaled reports that the applicant’s low back pain only comes on occasion. With respect to neck pain, Dr. Getahun reports that the applicant’s neck pain has significantly improved, and the applicant does not report constant pain or any limitations. Dr. Khaled reports that the applicant’s neck pain has fully resolved.

23The applicant submits that before the accident he worked 40 hours per week and now only works 24. He attributes this to the accident. The records of the applicant’s family physician show that the applicant returned to his normal employment after the accident in September 2016 but was laid off December 2016. He returned to his previous employment on part-time hours in September 2017. There is no compelling medical evidence from Dr. Truong about the applicant’s ability to work. The applicant told Dr. Getahun that he is currently able to work 24 hours a week when, prior to his injuries, he was working 40 hours a week, primarily due to prolonged sitting. Although Dr. Getahun states that in his opinion the applicant’s accident-related injuries have resulted in loss of earning capacity and loss of competitive advantage in the workforce, I find this statement unsupported by his report.

24Further, the applicant has not submitted any employment records in support. There is no evidence from his employer as to the reason why the applicant was laid off from his employment some three months after the accident or why the applicant is now working 24 hours a week. The applicant has failed to provide sufficient evidence to establish that any injuries from the accident have impaired his functionality in any significant way. The applicant submits in his reply submissions that there is no evidence that the applicant was not laid off from his employment due to his accident-related injuries. This submission is not persuasive. The onus is on the applicant to prove his case and I find that he has not done so. The applicant’s reporting of pain is not continuous, and he does not appear to be experiencing any significant functional limitations as a result of his pain.

Medical Benefit: Are the treatment plans reasonable and necessary?

25Having found that I find that the applicant’s physical injuries are predominately minor injuries that fall within the MIG, that the applicant has not proven on a balance of probabilities that he had a pre-existing condition, has sustained psychological impairments or chronic pain as a result of the accident that would remove him from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Cost of Examinations:

26Having found that the applicant’s injuries fall within the MIG, I do not need to consider the treatment plans in dispute as the $3,500.00 limit in the MIG has been exhausted.

Interest

27As no benefits are payable, no interest is payable.

CONCLUSION

28For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. As the $3,500.00 limit has already been paid, the applicant is not entitled to the requested treatment or assessments, and I therefore do not need to consider whether the treatment plans in dispute are reasonable and necessary. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Released: March 19, 2020

_______________________ Avril A. Farlam Vice Chair

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para. 24.
4. 417-001855 v. Wawanesa, 2017 CanLII 76912 (ON LAT); 16-000266 v. Wawanesa Mutual Insurance Company, 2017 CarswellOnt 10924, para. 101.