Released: June 2, 2020
Tribunal File Number: 18-009407/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:
[T.M.]
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant: Linda To, Paralegal
For the Respondent: Sharon C. Dagan, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant, [T.M.] (“applicant”), was involved in an automobile accident on June 10, 2016 (“accident”), after which he sought benefits from the respondent, Travelers Insurance Company of Canada (“respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (“Schedule”).
2The respondent determined that 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, two of the treatment plans in dispute are statute-barred for failure to commence this application within two years of the insurer’s refusal to pay for them, and that the applicant has not established that the disputed treatment plans are reasonable and necessary. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
ISSUES
3The issues to be decided in this hearing are:
Substantive Issues:
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 payment in the amount of $3,939.43 for chiropractic services provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan dated June 22, 2016, denied by the respondent on June 30, 2016? (preliminary issue)
b. Is the applicant entitled to payment in the amount of $2,399.49 for chiropractic services provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan dated September 19, 2016, denied by the respondent on September 25, 2016? (preliminary issue)
c. Is the applicant entitled to payment in the amount of $2,108.11 for chiropractic services provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan dated January 23, 2017, denied by the respondent on February 1, 2017?
d. Is the applicant entitled to payment in the amount of $1,816.74 for chiropractic services provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan dated June 14, 2017, denied by the respondent on June 27, 2017?
e. Is the applicant entitled to payment in the amount of $2,248.90 for an In Home Assessment dated October 7, 2016 provided by Complete Rehabilitation Centre, submitted on October 5, 2016 and denied by the respondent on October 12, 2016?
f. Is the applicant entitled to payment in the amount of $2,460.00 for a Psychological Assessment provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan submitted on June 14, 2017, denied by the respondent on June 27, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
Preliminary Issue:
iv. Is the applicant barred from disputing the following benefits pursuant to s. 56 of the Schedule because the application was not commenced within two years after the insurer’s refusal to pay the benefit?
a. Is the applicant entitled to payment in the amount of $3,939.43 for chiropractic services provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan dated June 22, 2016, denied by the respondent on June 30, 2016?
b. Is the applicant entitled to payment in the amount of $2,399.49 for chiropractic services provided by Complete Rehabilitation Centre, as set out in a treatment and assessment plan dated September 19, 2016, denied by the respondent on September 25, 2016?
RESULT
4The applicant sustained minor injuries as defined under the Schedule. The $3,939.43 treatment plan and the $2,399.49 treatment plan are dismissed. The $2,108.11 treatment plan and the $1,816.74 treatment plan are allowed, subject to the limits of the MIG. The cost of the in-home assessment and the psychological assessment are denied. Interest is owed on the two treatment plans allowed.
BACKGROUND
5The applicant’s vehicle was rear-ended by another vehicle on June 10, 2016 and, as a result, he submits he suffers headaches, pain in his neck, shoulders, back, hips, legs, feet and ankles, along with dizziness, increased stress, anxiety, nausea, depression, insomnia and social withdrawal.
6In supplementary submissions made at the request of the Tribunal, both the applicant and respondent indicate that the $3,500.00 limits of the MIG have not been completely exhausted.
LAW AND ANALYSIS
The Minor Injury Guideline
7The MIG establishes a treatment 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 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 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 is not a predominantly minor injury.
9The onus is on the applicant to show that his or her injuries fall outside of the MIG on a balance of probabilities.
10The Tribunal’s order of March 4, 2019 required that the respondent’s preliminary issue be heard with the substantive issues in dispute. As the applicant can only be successful on the issues in dispute if he can prove his injuries are not minor, I will determine that issue first.
11Section 56 of the Schedule provides that an application to the Tribunal under subsection 280(2) of the Insurance Act3 in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
Did the applicant sustain predominantly minor physical injuries?
12I find based on the medical evidence before me that the applicant’s physical injuries are minor injuries. The hospital records from the day of the accident show that the applicant initially complained of dizziness, which later dissipated, and some pain. He was released the same day and advised to follow up with his family doctor. On June 13, 2016, the applicant saw his family physician, Dr. Li, who noted various soft tissue injuries, including neck strain, left knee, back, shoulder, and arm pain and “whiplash injury-neck.” All of these injuries fall within the definition of a “minor injury” under the Schedule. The records of Dr. Li during 2016 and 2017 do not reveal any physical injuries other than “sprain and strain type injuries,” and Dr. Li does not refer the applicant to any specialists for further investigation of any physical injuries arising from the accident.
13The applicant relies on an in-home assessment by Lani Legaspi, occupational therapist, completed in October 2016. Although Ms. Legaspi reports that the applicant should continue to participate in a therapy program and may benefit from referral to a pain management program if his pain continues beyond six months, this report does not support a finding of any injuries that would be outside the definition of minor injury because there is no medical diagnosis.
14The treatment plans by applicant’s chiropractor Dr. Jessa are not sufficient evidence establishing that the applicant’s physical injuries are not predominantly minor.
15The applicant was assessed in October 2017 by Dr. Marchuk, respondent’s physiatrist, who concluded that the applicant sustained predominantly minor injuries with no documented pre-existing condition that would prevent him from achieving maximum medical recovery if subject to treatment provided in accordance with the MIG. The applicant submits that the diagnosis by Dr. Marchuk of left knee patellofemoral joint dysfunction and lumbar musculoligamentous dysfunction is incorrect because Dr. Marchuk did not review the ambulance call report, emergency hospital records and records of Dr. Li and, if he had, would likely have arrived at a different conclusion.
16The applicant’s criticism of Dr. Marchuk’s diagnosis is not persuasive. Dr. Marchuk reported that he not only reviewed the treatment plans in dispute and other file material made available to him but also interviewed the applicant, physically examined the applicant, including his lumbar spine, left knee, cranial nerve, and conducted various testing. There is no evidence before me to establish on what basis Dr. Marchuk might have reached a different conclusion and, as a result, the applicant’s submission about Dr. Marchuk’s diagnosis is speculation. More importantly, the onus is on the applicant to establish by medical evidence that his physical injuries are not predominantly minor, which he has not done.
17However, the applicant also argues that psychological issues and on-going chronic pain remove him from the MIG.
Does the applicant have psychological impairment as a result of the accident?
18I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from any psychological impairment as a result of the accident that justifies treatment beyond the MIG.
19In the one and half years following the accident, the applicant saw Dr. Li some nine times. At the initial visit on June 13, 2016, Dr. Li notes the accident but does not record that the applicant has any other psychological issues arising from it. Dr. Li does not record any significant psychological issues from the accident in any of his subsequent records. Dr. Li did not make a referral to any specialist to investigate or treat psychological issues. Based on the evidence before me, there appears to have been no significant functional limitation experienced by the applicant. In September 2016, Dr. Li notes that the applicant is “ok with driving”. The applicant, a taxi driver, told the respondent’s psychologist, Dr. Schwartz, in 2017 that he took a few weeks off and then resumed driving a taxi and later drove for Uber.
20The applicant was assessed in November 2017 by Dr. Schwartz who, after objective psychometric testing, did not find a diagnosable psychological condition and concluded that, in the absence of significant psychological symptomatology, the applicant does not require psychological intervention outside the MIG. The applicant submits that Dr. Schwartz’s report should not be given any substantial weight as Dr. Schwartz did not review essential medical documents such as clinical notes and records of the treatment provider, family physician, specialist and that, if he had, Dr. Schwartz would likely have arrived at a different conclusion.
21The applicant’s criticism of Dr. Schwartz’s report is not persuasive. Dr. Schwartz reported that he not only reviewed the OCF-18 dated June 13, 2017 completed by Dr. Jon Mills and other file material made available to him, but also interviewed the applicant and conducted various testing. There is no evidence before me to establish on what basis Dr. Schwartz might have reached a different conclusion and, as a result, the applicant’s submission about Dr. Schwartz’s diagnosis is speculation. More importantly, the onus is on the applicant to establish by medical evidence that his psychological impairments as a result of the accident are significant enough to remove him from the MIG. He has not done so.
22The report of Ms. Legaspi does not assist the applicant since, as noted above, it contains no medical diagnosis.
23The only other evidence tending to indicate that the applicant has a post-accident psychological impairment is the treatment plan signed by Dr. Mills, who assessed the applicant in June 2017 and, as a result, opined that the applicant “continues to experience physical pain and symptoms of emotional distress as a direct result of the accident…His clinical presentation provides evidence that he experiences many of the symptoms that would commonly be found in individuals suffering from post-accident psychological impairment. Furthermore, his physical pain and psychological challenges impede his daily activities and his ability to work.” Dr. Mills recommended a full psychological assessment battery including psychometric testing and an in-department clinical interview in order to determine the applicant’s “clinical diagnosis and psychological treatment needs.” I prefer the report of Dr. Schwartz who interviewed the applicant and also did psychometric testing before rendering his opinion.
24I find that the applicant has not proven on a balance of probabilities that he has psychological impairment resulting from the accident which will prevent him from achieving maximal recovery within the MIG limits. It is the applicant’s onus to prove he is out of the MIG. The weight of the applicant’s medical evidence falls short.
Does the applicant have chronic pain as a result of the accident?
25Likewise, I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain that justifies treatment beyond the limits of the MIG. Although there is some reference to pain in the notes of Dr. Li, the complaints of pain are intermittent and there is no evidence that Dr. Li referred the applicant for further investigation or treatment of chronic pain. The applicant told Dr. Schwartz that he was prescribed medication for pain but only took it for a brief period of time. Although the treatment plan signed by Dr. Mills also refers to “ongoing physical pain,” Dr. Mills does not diagnose chronic pain, nor would he be qualified to do so. The report of Ms. Legaspi, as noted above, contains no medical diagnosis. Further, there is no diagnosis of chronic pain by any chronic pain specialist. In the absence of other persuasive medical evidence, there is insufficient medical evidence to establish the applicant suffers from chronic pain that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of this alleged condition is on the applicant and he has not done so.
Medical Benefits: Are the $3,939.43 and $2,399.49 Treatment Plans Out of Time?
26The respondent submits that the applicant is barred from disputing these two treatment plans pursuant to s. 56 of the Schedule because respondent refused the $3,939.43 treatment plan on July 4, 2016 and the $2,399.49 treatment plan on September 26, 2016. The applicant did not file its application with the Tribunal until October 9, 2018, more than two years from the refusal to pay. The applicant submits that the respondent’s denials are provision(sic) denials because the insurer chose to proceed with s. 44 insurer’s examinations and did not have a final determination of these two treatment plans until November 16, 2017.
27I find that the respondent denied the $3,939.43 treatment plan in its letter dated July 4, 2016. I also find that the respondent denied the $2,399.49 treatment plan in its letter dated September 26, 2016. In both letters the respondent advised the applicant of the right to dispute the decisions by application to the Tribunal within two years. Subsequent correspondence from the respondent to the applicant in November, 2017 and subsequent IE examination does not alter the clear denial of these two particular treatment plans months earlier. As a result, the applicant is out of time to dispute these two treatment plans.
Medical Benefits: Are the $2,108.11 and $1,816.74 Treatment Plans Reasonable and Necessary?
28I find that the applicant has established that these treatment plans are reasonable and necessary in response to the applicant’s injuries. The applicant’s claim for these chiropractic services is allowed subject to the MIG limit. I do not find the respondent’s argument that the applicant’s limited physical complaints and the results of the IE show that these treatment plans are not reasonable and necessary.
Medical Benefit: In-Home Assessment
29I find that the applicant has not established that the in-home assessment was reasonable and necessary. Although the applicant sustained some injuries in the accident, they are minor and there was a lack of reporting of functional limitations to Dr. Li sufficient to warrant further assessment. The applicant’s claim for in-home assessment is denied.
Medical Benefit: Psychological Treatment
30I find that the applicant has not established a level of psychological injury or impairment that requires further assessment for the reasons noted above. Further evaluation is not warranted. The applicant’s claim for psychological treatment is denied.
Interest
31Interest is payable on the two treatment plans allowed in accordance with the Schedule.
ORDER
32For 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 and the applicant has not proven either psychological impairment or chronic pain sufficient to remove him from the MIG. The applicant’s claim for the two treatment plans in the amount of $3,939.43 and $2,399.49 is dismissed. The applicant’s claim for the two treatment plans in the amount of $2,108.11 and $1,816.74 is allowed. The applicant’s claim for the cost of in-home assessment and psychological assessment is denied. Interest awarded on the two treatment plans allowed.
Released: June 2, 2020
_______________________
Avril A. Farlam
Vice Chair
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
- Insurance Act, R.S.O. 1990, c. I-8