[L.F.] v. The Guarantee Company of North America, 2020 CanLII 35480

Citation: [L.F.] vs. The Guarantee Company of North America 2020 ONLAT 19-000520/AABS

Released Date: 04/27/2020

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:

[L.F.]

Applicant

and

The Guarantee Company of North America

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Michael Taylor

Counsel for the Respondent: Patrick Brennan

Written Hearing: Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on January 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the seat-belted driver of vehicle travelling on a highway which was rear-ended as he decelerated as traffic in front of him had stopped. As a result, the applicant submits he sustained physical injuries to his neck, back and shoulder.

3The applicant applied for medical benefits that the respondent denied on the basis that his injuries fell under the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

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

(ii) If the answer to issue (i) is no, then:

i. Is the applicant entitled to receive medical benefits in the amount of $201.28 for medical services recommended by 101 Physio in a treatment plan submitted February 13, 2017, and denied by the respondent on March 3, 2017?

ii. Is the applicant entitled to receive medical benefits in the amount of $101.52 for medical services recommended by 101 Physio in a treatment plan submitted March 24, 2017, and denied by the respondent on April 21, 2017?

iii. Is the applicant entitled to receive medical benefits in the amount of $4,131.98 for medical services recommended by 101 Physio in a treatment plan submitted March 10, 2017, and denied by the respondent on March 23, 2017?

iv. Is the applicant entitled to receive medical benefits in the amount of $2,200 for medical services recommended by 101 Physio in a treatment plan submitted March 24, 2017, and denied by the respondent on April 6, 2017?

v. Is the applicant entitled to receive medical benefits in the amount of $4,015.12 for medical services recommended by 101 Physio in a treatment plan submitted May 8, 2017, and denied by the respondent on May 25, 2017?

vi. Is the applicant entitled to receive medical benefits in the amount of $3,773.32 for medical services recommended by 101 Physio in a treatment plan submitted August 10, 2017, and denied by the respondent on August 24, 2017?

vii. Is the applicant entitled to receive medical benefits in the amount of $2,189.80 for medical services recommended by 101 Physio in a treatment plan submitted February 15, 2018, and denied by the respondent on March 14, 2018?

viii. Is the applicant entitled to receive medical benefits in the amount of $2,996.45 for medical services recommended by 101 Physio in a treatment plan submitted August 3, 2018, and denied by the respondent on August 17, 2018?

ix. Is the applicant entitled to receive medical benefits in the amount of $1,200 for medical services recommended by 101 Physio in a treatment plan submitted September 24, 2018, and denied by the respondent on October 3, 2018?

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

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant’s injuries are predominantly minor injuries as defined under the MIG. As a result of the monetary limit of the MIG being exhausted, there is no need to determine the reasonableness and necessity of the treatment plans in dispute; and

ii. as there are no benefits outstanding, there is no interest that is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

6The MIG establishes a framework for the treatment of minor injuries. The term “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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7The applicant bears the onus to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

8The applicant does not provide submissions with respect to whether the applicant’s injuries are outside the definition of the MIG. The applicant provides a summary of his injuries and submits that the evidence shows the applicant suffers from pain and would benefit from therapy and pain management.

9However, after a review of the evidence, I find the applicant to have impairments that fall within the definition of the MIG for the following reasons.

10The applicant’s chiropractor, Dr. De Luca, submitted a Disability Certificate (OCF-3)³ which noted the applicant to have a WAD 2 (whiplash associated disorder) with neck pain, sprain and strain type injuries to his wrist, jaw, thoracic spine, lumbar spine and pelvis as well as a sprain and strain to his shoulder and ribs. He was also diagnosed with a headache, dizziness and giddiness, nausea, non organic sleep disorder and symptoms and signs involving his emotional state.⁴

11The applicant had an ultrasound of his left shoulder which revealed the possibility of a tiny partial thickness tear and nothing else identified within his left shoulder.⁵

12In my view, the WAD 2 and sprain and strain type injuries as noted in the OCF-3 and the partial thickness tear are each a minor injury and therefore all fall within the MIG.⁶

13Dr. De Luca also notes the applicant to have dizziness and giddiness, nausea, non organic sleep disorder and symptoms and signs involving his emotional state which would appear to be psychological symptoms. Psychological injuries are not within the definition of the MIG; however, I place less weight on the opinion of the applicant’s chiropractor, Dr. De Luca, as it would be beyond the scope of practice of a chiropractor to opine on psychological symptoms of the applicant.

Does the applicant have a psychological injury to remove him from the MIG?

14However, the applicant relies upon other evidence in support of his position of a psychological impairment, which I will turn to discuss next.

15For the following reasons, I find that the applicant has not proven on a balance of probabilities that he has a psychological injury that would take him out of the MIG.

16The applicant relies upon the clinical notes and records from Physio 101 where it was noted the applicant had trouble sleeping, anxiety and nervousness while driving.

17However, the notes are from the applicant’s chiropractor, Dr. De Luca, and Dr. Khoura. As mentioned above, it would be beyond the scope of practice of a chiropractor to opine on psychological impairments. As for Dr. Khoura, it is not clear what type of doctor he is and whether he is within his scope of practice to opine on psychological symptoms. Given the unknowns of Dr. Khoura’s field of practice, I am unable to assign any weight to Dr. Khoura’s evidence.

18However, other than the clinical notes and records making a reference to anxiety and nervousness while driving, I have not been directed to any submissions or corroborating evidence from the applicant’s family doctor or any treating practitioner who may have noted psychological symptoms that may warrant a referral to a specialist for further investigation or if any medication may have been prescribed.

19The respondent relies upon an insurer examination (“IE”) that was conducted by Dr. Talebizadeh, psychologist, who opined that the applicant presented with minimal symptomology and did not require any form of psychological treatment.⁷

20As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that he suffers from a psychological impairment that may take him out of the MIG.

21I will now turn to discuss whether the applicant has a pre-existing condition that would remove him from the MIG.

Requirements to be removed from the MIG

22Even if the applicant’s injuries fall within the definition of minor injury, the applicant can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. The applicant must prove, on a balance of probabilities, all three of the following requirements in order to be removed from the MIG under this section:

a) Have a pre-existing medical condition;

b) The pre-existing medical condition was documented by a health practitioner before the accident; and

c) The person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

23I find that the applicant has not satisfied his onus and has not provided any submissions or evidence of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

24The applicant submits he had a history of a significant bilateral big toe fracture, chronic tuberculosis and sciatica.⁸

25As per s.18(2) of the Schedule, I find that the applicant had a pre-existing condition documented by a health practitioner prior to the accident; however, what the applicant has not referred me to is evidence from his treating medical practitioner that the pre-existing condition will prevent maximal recovery from the minor injury if he is subject to the $3,500 limit under the MIG.

26Without that part of s.18(2), I find that the applicant has not satisfied the requirements under the Schedule to be removed from the MIG as a result of any pre-existing condition.

27As a result of finding that the applicant does not have a psychological impairment or a pre-existing injury that satisfies the requirements of s. 18(2) of the Schedule to be removed from the definition of the MIG and as a result of the MIG limits being exhausted, there is no need to conduct an analysis on whether the treatment plan or the cost of examinations are reasonable and necessary.

ORDER

28As a result of the above, I find that:

i. the applicant’s injuries fall within the definition of the MIG.

ii. as a result of the MIG limits being exhausted, there is no need to conduct an analysis of whether the treatment plan and the cost of examinations are reasonable and necessary; and

iii. as there are no outstanding benefits, there is no interest that is payable.

Released: April 27, 2020

___________________________

Sandeep Johal, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Applicant’s Written Submissions at Tab 5.
4. 4Ibid.
5. 5Applicant’s Written Submissions at Tab 7. Ultrasound Report dated May 9, 2018.
6. 6See “strain” section 3(1) of the Schedule.
7. 7Written Submissions of the Respondent at Tab 5, Report dated April 25, 2017.
8. 8Applicant written submissions at Tabs 6, 7, 11, 12 and 16.