Citation: YM vs. Security National Insurance Company, 2020 ONLAT 19-001441/AABS

Released Date: 04/22/2020 File Number: 19-001441/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:

Y. M.

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Dharshika Pathmanathan, Counsel

For the Respondent:

Paula Banerjee, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, Y.M., was involved in an automobile accident on July 2, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). Y.M. was denied certain benefits by the respondent, Security National, and thus applied to the Licence Appeal Tribunal (the “Tribunal”). Specifically, Y.M. seeks funding for medical benefits.

2Security National denied Y.M.’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline¹ (“the MIG”). Y.M. disagrees with Security National’s denials.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. Y.M. argues that his injuries take him out of the limits set out by the MIG. Based on treatment that Y.M. has received to date, the MIG limit has been exhausted.

ISSUES

4The issues to be determined are as follows:

(i) Are Y.M.’s injuries predominantly minor injuries as defined in the Schedule and subject to treatment within the MIG?

5If Y.M.’s injuries are not subject to the MIG limits, then I must determine the issues as follows:

(i) Is the medical benefit in the amount of $3,476.60 for psychological services, recommended by Physio Fix & Fitness in a treatment plan (OCF-18) submitted January 3, 2017, and denied on February 15, 2017, reasonable and necessary?

(ii) Is the medical benefit in the amount of $452.00 for psychological services, recommended by Physio Fix & Fitness in an OCF-18 submitted January 3, 2017, and denied on February 15, 2017, reasonable and necessary?

(iii) Is the medical benefit in the amount of $2,082.85 for psychological services, recommended by Physio Fix & Fitness in an OCF-18 submitted October 21, 2016, and denied on October 28, 2016, reasonable and necessary?

(iv) Is the medical benefit in the amount of $4,300.16 for physiotherapy services, recommended by Physio Fix & Fitness in an OCF-18 submitted October 14, 2016, and denied on November 2, 2016, reasonable and necessary?

(v) Is Y.M. entitled to interest on any overdue payment of benefits?

RESULT

6For the reasons set out below, I find that Y.M.’s impairment falls within the MIG.

7Further, Y.M. is statute-barred from proceeding with his claims for the October 14 (physiotherapy) and October 21, 2016 (psychological services) OCF-18s.

8Y.M. is not entitled to the remaining medical benefits as the MIG limit has been exhausted. Interest is not payable as there is no overdue payment of benefits.

DISCUSSION

Preliminary Issues

Is Y.M. statute-barred from proceeding with his claims for the October 14 and October 21, 2016 OCF-18’s pursuant to s. 56 of the Schedule?

9Security National contends that Y.M.’s appeal on these OCF-18’s was filed approximately three months after the limitation period on the denied OCF-18s. Security National submits that in accordance with s. 56 of the Schedule, Y.M. is barred from proceeding with these issues.

10In the Tribunal application, dated February 15, 2019, the issues identify the denial dates of the OCF-18s as October 28, 2016 and November 2, 2016, respectively.

11Y.M. has provided no evidence that Security National did not comply with s. 38(8) in its denial of the OCF-18s. I am persuaded that Security National complied with s. 38(8).

12I therefore find that the two-year limitation period began to run on October 28, 2016 for the October 14, 2016 OCF-18 and November 2, 2016 for the October 21, 2016 OCF-18. Y.M.’s application regarding these two OCF-18s are therefore considered filed after the expiry of the two-year limitation period.

13For the reasons mentioned above, s. 38(11) does not apply in this proceeding. Security National is not required to pay for the balance of the OCF-18s. Y.M.’s application regarding the OCF-18s of October 14, 2016 and October 21, 2016 are barred by s. 56 of the Schedule.

Is Y.M. statute-barred from proceeding with his claim for the OCF-18 dated October 21, 2016 due to non-compliance pursuant to s. 55 (1)2 of the Schedule?

14Security National denied Y.M.'s OCF-18 for physiotherapy services on October 28, 2016, following which Y.M. was scheduled to be examined for a physiatry assessment pursuant to s. 44 of the Schedule, and was given notice on several dates--specifically February 16, 2017, February 28, 2017 and June 28, 2017.

15Security National submits that Y.M. agreed to attend the re-scheduled examination referred to in its letter of June 28, 2017. However, Security National claims that to date, Y.M. has not attended his physiatry assessment. Y.M. also agreed to provide written reasons for non-attendance by August 30, 2019 as per the Order of Adjudicator Létourneau, however, Security National claims Y.M. has failed to do that too.

16I agree with Security National, only in part. Y.M. provided written reasons for non-attendance in a letter dated August 30, 2019. However, I find the reason that Y.M. provided, that he was unaware of a physiatry assessment, is not a reasonable explanation.

17Y.M. submits that he was unaware that he missed a s. 44 examination; that he does not recall receiving a notice or a notice requesting to reschedule the s. 44 examination.

18Y.M. offers no credible reason to miss the s. 44 examination. I do not find his reasons, mentioned in paragraph 15, to be credible reasons for non-attendance.

19Although Y.M. has agreed to attend the s. 44 physiatry assessment, the OCF-18 was denied, and as noted above, the limitation period has passed. Y.M. did not make himself reasonably available for the required IE as required by the Schedule, and provided no credible, reasonable explanation for his failure to attend. I find that Y.M. is barred from proceeding with his appeal of Security National’s refusal to pay the October 21, 2016 OCF-18.

LAW

Minor Injury Guideline

20The 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 “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in s.3(1).

21The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.²

22Y.M. argues that he has sustained physical injuries and psychological impairments that go beyond the definition of “minor injury,” and therefore remove him from the MIG.

ANALYSIS

Did Y.M. sustain physical injuries that remove him from the MIG?

23Although Y.M. has provided medical evidence confirming he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Security National confirms that Y.M.’s physical injuries fall within the MIG.

Family Physician Clinical Notes and Records

24My finding that Y.M.’s physical injuries fall within the MIG is supported by the following evidence:

(i) There is a limited history of post-accident treatment. In the three years since the accident, Y.M. attended his family physician approximately seven times, with a one-year gap between his visit in January 2017 and February 2018, and no visits according to the OHIP summary between February 2018 and July 2019. Further, Y.M. did not present with any accident-related complaints during his last visit to his family physician;

(ii) The treatment records from CBI Health and Physio Fix & Fitness also do not support Y.M.'s allegation of ongoing issues after May 2017;

(iii) The findings of Kinesiologist Ms. Ramprasad are consistent with the family physician's records, which reveal at-most sprain/strain type injuries that were resolving. Further, the Applicant has not made any ongoing physical complaints post-January 2017 to his family physician or any other treating practitioners; and

(iv) Y.M.'s OHIP Summary further corroborates the lack of physical complaints post-accident.

25I find that the medical evidence submitted by Y.M. confirms that his physical injuries are predominantly minor. Y.M. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided for in the MIG.

Did Y.M. sustain psychological injuries that remove him from the MIG?

26For the reasons that follow, I find that the evidence does not support the conclusion that Y.M. suffered psychological impairments that would remove him from the MIG.

27For example:

(i) Y.M. completed a pre-screening psychological interview on December 30, 2016. The pre-screening interview was conducted by Psychometrist Mursal Srosh, working under the direct supervision of Dr. Belyakova. There is no indication that Dr. Belyakova met Y.M. in person, as the interview was conducted by Mursal Srosh. It is difficult to conclude that the diagnoses were obtained through testing conducted by Dr. Belyakova.

(ii) Although the report indicates that various testing³ was conducted, it should be noted that the psychological testing consisted of responses to questionnaires based on the subjective reports of Y.M. There is no evidence that Mursal Srosh or Dr. Belyakova conducted any objective testing;

(iii) The pre-screen report also notes that there was no review of any medical documents;

(iv) The s. 44 assessor, Psychologist Dr. Goodfield, also conducted similar subjective tests to those administered by Mursal Srosh, as well as objective tests in reaching a diagnosis of Y.M.’s psychological impairments.⁴ Based on the objective testing, Dr. Goodfield opined that Y.M. does not meet the diagnostic criteria for a psychological diagnosis;

(v) Y.M. denied that his fear of driving was a factor or that there were any psychological barriers preventing a return to employment.⁵ Y.M. admitted that he continues to cook and shop, was independent with self-care and continues to go out with friends and family. A typical day for Y.M. includes playing with his daughter, making coffee, doing stretches, and spending each day with his wife and daughter watching the news and television. On weekends, he also spends time with his friends;⁶

(vi) Dr. Goodfield concluded that there was no evidence of a pre-existing psychological or psychiatric condition that would prevent Y.M. from achieving maximal recovery if subject to the MIG limit;⁷

(vii) Y.M. made no complaints to his family physician of any accident-related psychological complaints; and

(viii) There has been no post-accident psychological treatment. Y.M.'s OHIP Summary further corroborates the lack of psychological complaints post-accident.

28Although Y.M. alleges that he sustained a psychological impairment as a result of the accident, he has not provided persuasive medical evidence to demonstrate that.

CONCLUSION

29Y.M. has not met the onus to prove his injuries are not predominantly minor. As such, Y.M. is not entitled to the treatment plans in dispute as the $3,500 MIG limit has already been exhausted. No interest is owing as there is no overdue payment of benefits. The claim 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. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 para. 24.
3. 3Rey 15-Item Test, Trail Making (A and B), Beck Depression Inventory (BDI-III) and Beck Anxiety Inventory (BAI)
4. 4Respondent’s Document Brief - Psychological Assessment by Dr. Cindi Goodfield, dated July 27, 2017 – TAB 20
5. 5Supra – pg. 11
6. 6Ibid – pgs. 5-6
7. 7Ibid – pg. 12