S.N. v. TD General Insurance Company, 2020 CanLII 34466

Licence Appeal Tribunal

Citation: S.N. vs. TD General Insurance Company, 2020 ONLAT 19-002386/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:

S.N.

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Patrick D'Aloisio, Counsel

For the Respondent:

Sharu Ratnajothy, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, S.N., was injured in an automobile accident on September 26, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from TD General Insurance Company (“TD”), the respondent.

2TD denied S.N.’s claims because it had determined that all of S.N.’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).¹ As a result, S.N. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve their dispute at the case conference held on July 10, 2019 and the matter proceeded to a written hearing on November 18, 2019.

ISSUES IN DISPUTE

4The issues to be decided are as follows:

1. Did S.N. sustain predominately minor injuries as defined under the Schedule?

2. If the answer to issue 1 is “no,” then I must determine:

(i) Is S.N. entitled to receive a medical benefit in the amount of $3,603.58 for chiropractic treatment, recommended by Dr. George Charalambous, in a treatment plan dated July 26, 2017, and denied by TD on June 14, 2018?

(ii) Is S.N. entitled to payment for the cost of an examination in the amount of $2,452.71 for a psychological assessment, recommended by Dr. Andrew Shaul, in a treatment plan dated February 17, 2017, and denied by TD on March 6, 2017?

(iii) Is S.N. entitled to interest on any overdue payment of benefits?

RESULT

5I find that S.N.’s injuries fall within the MIG and, therefore, it is unnecessary to consider the reasonableness or necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.² S.N. is also not entitled to interest and the application is dismissed.

ANALYSIS

Did S.N. sustain a predominately minor injury?

The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

8The onus is on S.N. to show, on a balance of probabilities, that his injuries fall outside of the MIG.³ S.N. submits that his spinal disc damage and spinal instability injuries are not “minor injuries” as defined in the Schedule. Alternatively, S.N. argues that he should be removed from the MIG as a result of psychological impairments that he sustained from the accident.

9Based on all of the evidence before me, I find that S.N. sustained “minor injuries” as defined in the Schedule. I also find that S.N. is not removed from the MIG as a result of sustaining a psychological impairment as a result of the accident.

Physical Injuries

10S.N. submits that he sustained spinal disc damage and spinal instability injuries as a result of the accident and, as a result, he should be removed from the MIG.

11I find that S.N. has failed to prove on a balance of probabilities that he sustained physical injuries to his back that would remove him from the MIG for the following reasons:

(i) S.N. relies upon an October 19, 2016 lumbar and cervical spine x-ray report which indicated “DDD” (degenerative disc disease) at C5-6. All other results were found to be normal. I find that this evidence does not support a removal from the MIG;⁴

(ii) I also disagree with the October 25, 2016 clinical note and record (CNR) entry by Dr. Andrei Tchernov, S.N.’s family doctor, that the October 19, 2016 x-ray report states C5-C6 “disk damage,” as the report is clear that S.N. had degenerative disc disease at C5-6;

(iii) Dr. Tchernov reports that S.N. sustained myofascial neck and back injuries in his October 20, 2016 CNR entry and describes S.N.’s condition as stable on this date and on October 25, 2016. The only other CNR entry from Dr. Tchernov submitted by S.N. was dated March 20, 2017 in which Dr. Tchernov first notes that S.N.’s condition is stable and notes complaints of pain and decreased range of motion in S.N.’s neck, which falls squarely within the MIG; and

(iv) S.N. also relies upon a November 4, 2016 Disability Certificate (OCF-3) completed by Dr. George Charalambous, chiropractor, that lists S.N.’s physical injuries as headache, whiplash associated disorder [WAD 2] with complaint of neck pain with musculoskeletal signs, sprain and strain of the thoracic and lumbar spine and spinal instabilities, multiple sites in spine. I find that all of these injuries fall under the definition of a “minor injury” in the Schedule.

12For all of the reasons set out above, I find that S.N. has failed to submit any evidence to establish that his back injuries as a result of the accident were anything but “minor” and/or soft tissue in nature. As a result, I find the physical injuries that S.N. sustained as a result of the accident are “minor injuries” as defined by the Schedule.

Psychological Impairments

13I find that S.N. has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of sustaining any psychological impairments from the accident.

14S.N. submits that his psychological injuries sustained as a result of the accident place his claim outside of the MIG. To support his position, S.N. first relies upon the November 4, 2016 OCF-3 in which Dr. Charalambous lists mixed anxiety and depressive disorders, other sleep disorders and nervousness as S.N.’s conditions. I place little weight on Dr. Charalambous’ OCF-3 as evidence that S.N. sustained psychological injuries as a result of the accident as Dr. Charalambous is a chiropractor and, as such, is not qualified to make psychological diagnoses.

15S.N. also relies a pre-screen report contained in the additional comments portion of the February 17, 2017 treatment plan completed by Dr. Andrew Shaul, psychologist. The pre-screen report notes that S.N. is provisionally diagnosed with adjustment disorder, mixed anxiety and depressed mood and specific phobia, situational type (driving and travelling as a passenger).

16I place little weight on the February 17, 2017 pre-screen report, and the provisional diagnoses contained therein, for the following reasons:

(i) There is no information on the pre-screen report as to who completed the interview with S.N. or who determined S.N.’s provisional diagnoses and it is not clear who authored the report;

(ii) There is no information on what documents, if any, were reviewed as part of the pre-screen of S.N. This lack of information is significant because prior to the pre-screen interview, S.N. made no complains or reports to Dr. Tchernov of any psychological symptoms;

(iii) Dr. Tchernov’s CNR entry dated March 2, 2017, less than two weeks after the pre-screen interview, noted that S.N. had, “no psychiatric issues at present examination,” which directly contradicts the findings and diagnoses in the pre-screen report;

(iv) The only evidence submitted by S.N. from Dr. Tchernov that demonstrates a report by S.N. of any psychological symptoms is a July 12, 2019 referral note which states, “still anxiety/flashbacks. Needs treatment.” No explanation was provided for the absence of any psychological complaints until almost 3-years post-accident. S.N. also failed to submit any CNRs as evidence to support Dr. Tchernov’s referral at this time; and

(v) The OHIP summary submitted for the period of September 29, 2014 to February 9, 2018 showed that S.N. did not have any post-accident psychological medical visits or specialists’ appointments during this period. In fact, the OHIP summary shows no OHIP covered services at all were provided to S.N. from March 3, 2017 to February 9, 2018.

17For the reasons stated above, I find that S.N. has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of any psychological impairment arising from the accident.

18As I have found that S.N.’s injuries as a result of the accident fall within the MIG, I do not need to determine whether or not the treatment plans are reasonable and necessary as the maximum amount of $3,500.00 for medical and rehabilitation benefits in the MIG has been exhausted.

Interest

19Because I have found that there are no benefits or costs that are overdue, no interest is payable.

CONCLUSION

20For the reasons outlined above, I find:

(i) S.N. sustained predominately minor injuries as defined under the Schedule; accordingly, it is not necessary to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

(ii) S.N. is not entitled to interest; and

(iii) The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Written Submissions of the Respondent, para. 7.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.), para. 24.
4. 4P.M. v TD Insurance Meloche Monnex, 2019 CanLII 76985 (ON LAT) at para. 22.