Released: May 20, 2020
Tribunal File Number: 19-002859/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:
A. M.
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
PANEL:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Kevan Wylie, Counsel
For the Respondent:
Richard J. Campbell, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant, A. M. (“applicant”), was involved in an automobile accident on March 17, 2017 (“accident”), and sought benefits from the respondent, Certas Home and Auto 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 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. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injuries Guideline (MIG)?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,029.24 for physiotherapy, recommended by Novo Medical Services in a treatment plan submitted March 27, 2017, and denied by the respondent on March 27, 2017?
iii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,995.33 for a Psychological Assessment recommended by Novo Medical Services in a treatment plan submitted November 21, 2018, and denied by the respondent on November 27, 2018?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been expended. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. There is no special award. No interest is owed.
BACKGROUND
5The applicant was in a motor vehicle accident March 17, 2017 and, as a result, she alleges that she suffers from aggravation of pre-existing injuries and psychological complaints that would remove her from the MIG.
6The applicant made a claim for accident benefits. The respondent characterized the applicant’s injuries as falling within the MIG and refused to pay for the disputed physiotherapy treatment plans and the psychological assessment. The respondent has already approved funding to the full limits of 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 Section 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 section 18(1) of the Schedule, injuries that are defined as a “minor injury” 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:
a. 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
b. Establishing an impairment sustained in the accident is not a predominantly minor injury.
9The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.3
Are the applicant’s physical injuries minor?
10I find that the applicant’s physical injuries are minor injuries. The applicant relies on various medical records and reports, including a psychological symptom checklist dated March 17, 2017, various records of her family physician, Dr. Mensah, Disability Certificate (OCF-3) by her chiropractor Dr. Patton dated March 29, 2017, a treatment plan (OCF-18) by Dr. Patton dated March 29, 2017 and an OCF-18 by her psychologist Dr. Vitelli dated November 21, 2018.
11On the day of the accident the applicant was seen by a hospital emergency room physician who noted the applicant’s complaint as “traumatic back/spine in” and diagnosed trauma. The applicant’s March 20, 2017 x ray was normal. When the applicant saw her family physician, Dr. Mensah on March 20, 2017 he noted soft tissue injuries including sore ribs, neck stiffness, and some tenderness. On March 25, 2017 Dr. Mensah reported that she would be off work for two weeks and then expected to return to full duties.
12In the treatment plan dated March 29, 2017 Dr. Patton described the applicant’s physical injuries as sprain and strain of lumbar, cervical and thoracic spine, whiplash, injury of peripheral nerves of neck, and sprain and strain of hip. There is no corroborating medical evidence of the applicant’s alleged peripheral nerve injury. On the same day, in the disability certificate, Dr. Patton repeated this description of the applicant’s physical injuries but added sprain and strain of shoulder. These are predominantly minor injuries. However, the applicant argues that other conditions remove her from the MIG.
Did the applicant have a pre-existing medical condition that would remove her from the MIG?
13The applicant submits that she has a pre-existing medical condition in her hip, and pre-existing back and hip pain that was re-aggravated by the accident. I find that the applicant has not brought forward compelling evidence from her 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.
14Dr. Mensah’s records confirm that the applicant had hip surgery in 1999 to repair a fracture, in 2014 an MRI of her hip and pelvis showed acute pathology was not found and that she was referred in 2014 for physiotherapy and provided with a knee brace. In 2015 the applicant saw Dr. Mensah as a result of another motor vehicle accident with complaints of reduced range of motion in her back and tenderness below the ribs. However, on February 9, 2017, some five weeks before the accident, Dr. Mensah reported that the applicant “…can return to full duties…without restrictions”. The applicant’s suggested pre-existing medical condition and pain appears to have resolved prior to the accident. There is no compelling medical evidence before me the suggested re-aggravation occurred as a result of the accident. The evidence is to the contrary. The applicant’s March 20, 2017 x ray was normal.
15I find there is insufficient medical evidence before me to establish that the applicant should not be subject to the MIG.
Does the applicant have psychological impairment as a result of the accident?
16I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from psychological impairment justifying treatment beyond the MIG.
17The applicant relies on the emergency room physician’s note of “traumatic back/spine in” and back pain, a psychological symptom checklist completed on the day of the accident, the treatment plan of Dr. Patton, the records of Dr. Mensah, and the adjustment disorder, mixed anxiety and depressive disorder, and specific (isolated) phobias diagnosis made by her psychologist Dr. Vitelli as evidence in support.
18The emergency room physician’s diagnosis of “trauma” is too non-specific to constitute medical evidence of psychological impairment resulting from the accident. The applicant completed a psychological symptom checklist at Meditecs on the day of the accident. This is a templated form for self-reporting and does not constitute medical evidence of psychological impairment resulting from the accident. Although Dr. Patton records the applicant as having some psychological complaints, Dr. Patton, a chiropractor, does not make a psychological diagnosis. I give these three records little weight.
19There is insufficient medical evidence in Dr. Mensah’s records to support the applicant’s argument. Although on April 5, 2017 Dr. Mensah notes “…crying for no reason, having panic attacks when driving sometimes”, there are no ongoing references to psychological issues, no referral to a mental health specialist noted and no treatment recommended or prescribed for psychological issues.
20Dr. Vitelli did a psychological assessment in the disputed treatment plan submitted November 21, 2018. Dr. Vitelli appears to know little about the applicant. He marks as “unknown” whether her impairments affect her ability to carry out tasks of her employment. He states that the applicant lost consciousness in the accident although there is no corroboration in any other medical record that this happened. Dr. Vitelli did not complete a full psychological assessment of the applicant. He states that “Barriers to recovery will be identified after a full Psychological Assessment”. He describes the purpose of his assessment is “…to provide clinical information necessary to formulate a treatment plan in response to the presenting complaints”. Dr. Vitelli made only a “provisional diagnosis” of “adjustment disorder with anxiety and depression, specific phobia, situational”. Dr. Vitelli’s provisional diagnosis is insufficient evidence to meet the applicant’s burden of proof that she suffers from psychological impairment justifying treatment beyond the MIG.
21Taken together, the applicant’s medical records are insufficient to establish that she suffers from psychological impairment justifying treatment beyond the MIG.
Medical Benefit: Is the treatment plan reasonable and necessary?
22Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the treatment plan in dispute is reasonable and necessary.
Is the applicant entitled to the cost of the psychological assessment?
23Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the applicant is entitled to the cost of the disputed psychological assessment.
Special Award
24The applicant submits that the respondent has acted unreasonably in withholding or delaying payments, failed to provide medical reasons for the denial of the psychological assessment in accordance with s. 38 of the Schedule and failed to schedule a s. 44 examination of the applicant.
25Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As there are no benefits payable, the respondent has not unreasonably withheld or delayed the payment of benefits. Therefore, there is no award under Ontario Regulation 664.
26I find that the respondent did not fail in any obligation to the applicant. The respondent denied the claim for the psychological assessment for the reasons it expressed in correspondence to the applicant. The respondent was not obligated to schedule a s. 44 examination. Neither of these submissions are relevant to a special award.
Interest
27As no benefits are payable, no interest is payable.
Respondent’s Request
28In addition to seeking a dismissal of the applicant’s claims on the basis of the MIG, the respondent seeks an Order that half, or some other amount of the applicant’s submissions not be considered because the submissions exceeded the length allowed. The respondent also brought a motion prior to this hearing seeking to strike portions of the applicant’s submissions but withdrew the motion before it could be heard. This procedural request could have been dealt with on motion but the respondent choose not to proceed. No relief is awarded to the respondent as requested.
CONCLUSION
29For 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. There is no special award. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.
Released: May 20, 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.
- Scarlett v. Belair, 2015 ONSC 3635 (Div Ct.) para. 24.