Citation: S.S vs. Scottish & York, 2020 ONLAT 19-004531/AABS

Released Date: 06/26/2020

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:

S.S.

Applicant

and

Scottish & York

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

William Lim, Counsel

For the Respondent:

Amanda Faulkner, Counsel

HEARD:

By way of written submissions

OVERVIEW

1[S.S] (“the applicant”) was involved in an automobile accident on October 11, 2017 and sought benefits from Scottish & York (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“the MIG”)?

ii. If the answer to the first question is no, is the applicant entitled to the following benefits:

a. Is the applicant entitled to receive a medical benefit in the amount of $3,520.00 for chiropractic services recommended by Total Care Management in a treatment plan submitted January 19, 2017 and denied by the respondent on May 19, 2017?

b. Is the applicant entitled to receive a medical benefit in the amount of $1,659.75 for chiropractic services recommended by Total Care Management in a treatment plan submitted May 11, 2017 and denied by the respondent on June 16, 2017?

c. Is the applicant entitled to receive a medical benefit in the amount of $2,540.00 for chiropractic services recommended by Total Care Management in a treatment plan submitted July 27, 2017 and denied by the respondent on August 11, 2017?

d. Is the applicant entitled to receive a medical benefit in the amount of $1,760.00 for chiropractic services recommended by Total Care Management in a treatment plan submitted September 27, 2017 and denied by the respondent on October 12, 2017?

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

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. Therefore, he is not entitled to the disputed treatment plans or interest as the MIG limit has been exhausted.

BACKGROUND

5On October 11, 2017, the applicant was involved in a collision when his pick-up truck was rear ended twice by a tow truck. The applicant maintains that, as a result of the accident, he sustained injuries to his back, hip and left leg.

6Following the accident, the applicant commenced treatment pursuant to the MIG. The applicant now seeks a finding that his injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

PROCEDURAL ISSUE

7The respondent opposed the applicant raising a claim for an award in his submissions as it was never added as an issue at the case conference and was not included in the case conference report and order. Further, the respondent was never given particulars regarding the applicant’s claim for an award in advance of the written hearing. Therefore, it would be procedurally unfair to address it. The applicant had the option of filing reply submissions; however, he chose not to.

8Although an award can be added as an issue at any time during a proceeding, I do not add it as an issue as I agree with the respondent that it was not provided with any particulars in advance of the hearing. Therefore, I find it would not be procedurally fair to the respondent to address it. The applicant also requested costs pursuant to Rule 19 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure which was not an issue added in the case conference report and order. In light of my decision, I do not find that the applicant has established that an award or costs is warranted in this matter. Therefore, these are not added as issues in dispute.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

9I find the applicant’s impairments fall within the MIG.

10Section 3 of the Schedule provides the following definition of a minor injury:

“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

11Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that his impairments are not minor and not subject to the $3,500.00 cap.

12The applicant argues that his impairments do not fit within the definition of the MIG because had a pre-existing medical condition that would prevent him from achieving maximum medical recovery in the MIG. He maintains that he had a pre-existing disc herniation and suffered from left leg numbness and that the accident exacerbated these conditions. He relies on the following: the clinical notes and records (“CNRs”) and report of Dr. Kramarchuk, (specialty unknown) dated December 14, 2017; an MRI from 2013; the report of Dr. Dhanani, neurologist, dated October 31, 2013; and the treatment plans themselves authored by Dr. Dhotar, chiropractor.

13The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNRs relied upon by the applicant do not support that his pre-existing medical condition would prevent him from achieving maximum medical recovery within the MIG. The respondent relies on the insurer examination (“IE”) reports of Dr. Hanna, general practitioner, dated April 11, 2017 and May 9, 2017 and the report of Dr. Tepperman, occupational health physician, dated December 21, 2018. The IE doctors determined that the applicant sustained soft tissue injuries and that his accident related impairments are minor. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury and is therefore subject to treatment within the MIG.

14The applicant’s sole argument for why he should be removed from the MIG is that he had a disc herniation in 2013 which he maintains would prevent him from achieving maximum medical recovery in the MIG. Unfortunately, other than the evidence of Dr. Dhotar (which I will address later), this opinion is not supported by any of the medical evidence. The applicant submitted an MRI dated September 22, 2013 and the report of Dr. Dhanani dated October 31, 2013. While these records establish that the applicant did indeed have a herniated disc and that he complained of left leg numbness in 2013, these records do not support that these conditions would prevent the applicant from achieving maximum medical recovery within the MIG. What I found lacking from the applicant’s evidence was a medical report of an expert or his family doctor opining that these conditions were still present prior to the accident and would prevent him from achieving maximum medical recovery within the MIG and why.

15I also do not find the CNRs and report of Dr. Kramarchuk helpful as the CNRs were not legible. Dr. Kramarchuk’s report notes that the applicant suffered from low back pain for one year, he had limited range of motion in his legs and hips and he had received injections to his back to numb the pain. What I find odd is the fact that Dr. Kramarchuk’s report was written two-months post-accident and it does not mention the accident at all or indicate that the accident exacerbated the applicant’s condition. Nor did Dr. Kramarchuk give an opinion that the applicant’s pre-existing condition would prevent him from achieving maximum medical recovery within the MIG. Consequently, I give these records and report little weight.

16The applicant submitted the treatment plans themselves. In those plans, Dr. Dhotar, chiropractor notes under Part 7: pre-existing condition which may affect the applicant’s response to treatment: “an MRI documented a lumbar disc herniation with nerve root impingement and degenerative changes in lumbar spine.” The applicant maintains that Dr. Dhotar’s opinion regarding the applicant’s pre-existing condition should be accepted over the IE doctors as they have only seen the applicant once. In my view, in the absence of corroborating evidence I do not find the treatment plans themselves compelling evidence as per the test to be removed from the MIG as a result of a pre-existing condition. I also agree with the respondent that Dr. Dhotar fails to give an explanation regarding why the applicant’s pre-existing condition would prevent him from achieving maximum medical recovery.

17By contrast, the respondent relied on the IE reports of Dr. Hanna and Dr. Tepperman who both determined that the applicant sustained minor soft tissue injuries as a result of the accident. Both doctors reviewed the 2013 MRI and Dr. Dhanani’s report and this information did not impact their decision. Without having a competing report from the applicant, I accept the opinions of the IE assessors as I have nothing to compare them to and there is no evidence to dispute them.

18For the above-reasons, the applicant has not met his onus in proving on a balance of probabilities that his accident related impairments do not fit within the MIG.

Did the respondent comply with s. 38(8) of the Schedule by providing sufficient reasons for denying the treatment plans?

19I find the respondent gave sufficient reasons for denying the treatment plans.

20The applicant argued that the respondent was non-compliant with its obligations under s. 38(8) of the Schedule, which provides that, when denying a treatment plan, an insurer shall provide medical and other reasons why it does not find the treatment plan to be reasonable and necessary. Section 38(11) of the Schedule states that if an insurer fails to comply with s. 38(8), it shall pay for the treatment plan starting from the 11th business day after the insurer received the treatment plan and ending on the date it provides notice in accordance with s.38(8). Further, the applicant submits that he incurred the treatment plans so they are payable. I disagree, as I find the respondent provided the applicant with sufficient reasons for denying the treatment plans in compliance with s. 38(8).

21In response to the first treatment plan in dispute the respondent sent the applicant an explanation of benefits dated February 6, 2017. The respondent indicated that the applicant’s funding was subject to the MIG limit. In addition, it requested additional clinical notes records on the applicant’s pre-existing condition in order to assess whether the applicant’s impairments fit within the MIG. I find the reason provided by the respondent sufficient because it is a medical reason and conveyed to the applicant why the treatment plan was denied. The respondent denied the other treatment plans on the same basis and provided the same explanation. Therefore, I find the respondent complied with its requirement to provide sufficient reasons for its denial of the treatment plans.

ORDER

22For all of the above reasons, I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit; and

ii. The applicant is not entitled to any of the treatment plans in dispute or interest.