Released: May 19, 2020
Tribunal File Number: 19-002315/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:
H. I.
Applicant
And
Belairdirect
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Muhammad M. Alam
For the Respondent:
O. Itse Ezomo
HEARD:
In Writing
OVERVIEW
1The applicant was injured in an automobile accident on March 29, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").
2The respondent determined the applicant's injuries fell within the Minor Injury Guideline (the "MIG") and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
I. Are the applicant's injuries predominantly minor injuries as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the MIG?
II. Is the applicant entitled to receive a medical benefit in the amount of $1,339.00 for physiotherapy, recommended by Mississauga Active Physiotherapy Services ("MAPS") in a treatment plan submitted June 1, 2018 and denied on November 22, 2018?
III. Is the applicant entitled to receive a medical benefit in the amount $1,339.00 for physiotherapy, recommended by MAPS in a treatment plan submitted June 1, 2016 and denied on June 14, 2016?
IV. Is the applicant entitled to receive a medical benefit in the amount of $1,539.00 physiotherapy, recommended by MAPS in a treatment plan submitted February 15, 2017 and denied on February 28, 2017?
V. Is the applicant entitled to payment for the cost of examinations in the amount of $1,651.00 for an in-home occupational therapy assessment, recommended by Pearson Medical Assessments ("Pearson") in a treatment plan submitted March 20, 2017 and denied on March 29, 2017?
VI. Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.15 for a psychological assessment, recommended by Pearson in a treatment plan submitted April 20, 2017 and denied on May 1, 2017?
VII. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by Pearson in a treatment plan submitted February 27, 2018 and denied on March 9, 2018?
VIII. Is the applicant entitled to payments for the cost of examinations in the amount of $1,988.00 for an impairment assessment, recommended by Pearson in a treatment plan submitted April 4, 2018 and denied on April 13, 2018?
IX. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a physiatry assessment, recommended by Pearson in a treatment plan submitted April 30, 2018, and denied on May 8, 2018?
X. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for an orthopaedic assessment, recommended by Pearson in a treatment plan submitted December 19, 2017, and denied on January 17, 2018?
XI. Is the applicant entitled to interest on any overdue payment of benefits?
XII. 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 predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.
5The applicant is not entitled to the disputed treatment and assessment plans, interest, or an award.
BACKGROUND
6The applicant was the driver of a sedan which was struck near the rear on the right side by an oncoming vehicle which was driving on the wrong side of the road. He did not seek medical attention at the scene of the accident and drove himself home in a rental vehicle. About a week later, he started treatment at MAPS pursuant to the MIG.
7The applicant disputes the characterization of his injuries as being predominantly minor and subject to the MIG. He claims to suffer from chronic back pain and psychological injuries and submits they are not included in the MIG. As a result, he submits the $3,500.00 funding limit should not apply and claims entitlement to the disputed treatment plans.
THE MINOR INJURY GUIDELINE
8The 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 the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9If an insurer deems an applicant's injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
10I have reviewed the evidence and submissions and find the applicant has sustained predominantly minor injuries as defined by the Schedule. As a result, he is subject to the $3,500.00 funding limit provided by section 18. He is not entitled to the disputed treatment plans as they propose treatment outside the MIG and the $3,500.00 funding limit.
11I find the applicant's ongoing back pain is sequala of his minor injuries and the psychological injuries claimed are not significant enough to warrant intervention. As a result, he is subject to the MIG and the $3,500.00 funding limit.
Chronic Pain
12The applicant's ongoing complaints of moderate back pain are sequela of his minor injuries and are not indicative of a chronic pain condition which would remove him from the MIG.
13By virtually all accounts, the applicant's physical injuries are predominantly soft tissue sprain and strain injuries. The June 1, 2016 disability certificate notes only sprain/strain injuries. Likewise, the various x-ray and MRI reports included in the applicant's family physician's records show he suffered only soft tissue injuries as a result of the accident.
14The applicant's use of prescription medication does not remove him from the MIG. As submitted by the respondent and confirmed by the applicant, the evidence shows the applicant has not purchased prescription medication since May 2017. While there have been recommendations for pain medication, such as Cymbalta and CBD oil, there is no evidence the applicant acted on these recommendations. Further, there is no evidence the applicant has an overdependence on any prescription medication.
15There is no compelling evidence to show the applicant's ongoing back pain is impacting his functionality. As submitted by the respondent, the applicant drives daily, has returned to work as a software engineer on a full-time basis and there is no evidence he withdrew from social activities. Assessment reports note he claimed to be independent with his self-care activities and activities of daily living. The October 10, 2017, May 22, 2018, and September 18, 2018 physical assessments conducted by Dr. M. Khan, physiatrist, note mostly normal findings throughout. This was also true with the insurer's examination ("IE") report by Dr. S. H. Hosseini, physiatrist, dated November 22, 2018. Dr. Hosseini's assessment noted the applicant had normal range of motion and normal neurological findings. Dr. Hosseini found no objective, reliable evidence of any significant objective impairment and concluded that the applicant's injuries were predominantly minor injuries.
16The characterization of the applicant's low back pain as chronic does not outweigh the objective test results. The applicant regularly notes how his low back pain is characterized by Dr. Rai and Dr. Khan, and Dr. S James, physiatrist, as chronic however, such a characterization does not, by itself, exclude the applicant from the MIG and the $3,500.00 funding limit. As noted in 16-000438 v The Personal Insurance Company1, ongoing or chronic pain does not automatically remove the applicant from the MIG but rather, a significant reduction in the applicant's functionality or the onset of psychological injuries. As noted earlier, the applicant provides no compelling evidence of limited functionality. The applicant's claims of psychological injuries are addressed below.
17Despite the characterization of his low back pain as chronic by some of his healthcare providers, the applicant's evidence shows he suffers from intermittent pain due to predominantly soft tissue injuries with little impact on his day-to-day functioning.
Psychological Injuries
18I find the psychological injuries claimed by the applicant fail to meet the level required to remove him from the MIG.
19The applicant's evidence of psychological injuries is inconsistent with the balance of his medical records. The October 20, 2017 assessment report of S. Al-Dabbagh and Dr. J. Mills, psychologist, finds that the applicant's psychological impairment poses a significant barrier to his functioning, yet there is no corroborating evidence of this elsewhere in his medical records. For example, the applicant reported heightened anxiety and increased cautiousness while driving yet, the evidence indicates he continues to drive daily.
20The absence of any note of disfunction due to a psychological injury and any complaints of a psychological nature in Dr. Rai's clinical notes and records ("CNRs") also contradict the conclusion in the Al-Dabbagh and Mills report. In fact, the sole entry addressing the applicant's psychological health in all of Dr. Rai's CNRs is a referral to psychotherapy. Otherwise, the CNRs are devoid of any mention of a psychological symptom or injury. Further, the psychometric testing completed for the October 20, 2017 report all scored in the mild range, which is not indicative of a psychological impairment that poses a significant barrier to functioning.
21I prefer the IE May 29, 2017 report of Dr. J. Bacchiochi, psychologist as it is more consistent with the applicant's medical record than the Al-Dabbagh and Mills report. Dr. Bacchiochi assessed the applicant, noted the applicant denied any persistent symptoms of a psychological injury and, after performing psychometric testing, concluded the applicant was not presenting with any significant psychological symptoms that were causing clinically significant distress or impairment.
22Considering the evidence and on a balance of probabilities, I find no compelling evidence of an impairment due to psychological injuries as claimed by the applicant. Likewise, I find no compelling evidence he requires psychological intervention.
STATUTORY ENTITLEMENT TO THE DISPUTED TREATMENT PLANS
23I find the applicant is not entitled to any of the disputed treatment and assessment plans on account of statutory breaches by the respondent.
24The applicant claims the respondent failed to provide medical reasons to deny the disputed treatment and assessment plans, contrary to section 38 of the Schedule. He submits this failure disentitles the respondent from relying on the MIG to deny the plans. In addition, the applicant claims the respondent failed to reply to the orthopaedic assessment plan within the requisite 10 business days pursuant to section 38(8), entitling him to the plan.
25Contrary to the applicant's submissions, I find the respondent provided sufficient medical reasons when it denied the disputed treatment and assessment plans. The applicant claims the respondent's denials failed to provide sufficient medical reasons because the denials did not refer to any specific medical documents to support their denials, contrary to the reasoning in 16-003316/AABS v Peel Mutual Insurance Company2. However, this is not my interpretation of the case. My reading of that case is that insurers are required to include specific details about the insured's condition forming the basis for the insurer's decision. Here, the respondent has satisfied that condition and provided the requisite medical reasons. All the denials advise the applicant of the injuries included in the minor injury definition, confirmed his injuries fall within that definition and advised there was no compelling evidence of an injury which falls outside the MIG or a pre-existing condition which would preclude the applicant's recovery. The denials clearly and unequivocally denied the plans.
26While the respondent was late in delivering its denial of the orthopaedic assessment, there is no evidence the applicant incurred the cost of it. Pursuant to section 38(11)(2) of the Schedule, the applicant is entitled to the costs related to the treatment and assessment plan which are incurred starting on the 11th business day following its submission and ending on the day the respondent gives proper notice. In this case, the applicant never incurred the cost of this assessment before respondent properly responded to it on January 25, 2017.
27The orthopaedic assessment is not reasonable and necessary. The respondent's failure to reply within 10 business days disentitles it from taking the position that the MIG applies for that specific treatment plan, which means it is subject to the reasonable and necessary test3. However, the applicant led no submissions or evidence addressing the orthopaedic assessment and there is no obvious evidence in the medical record to support the need for such an examination. I find the orthopaedic assessment is not reasonable and necessary for this reason.
THE DISPUTED TREATMENT AND ASSESSMENT PLANS
28I have found the applicant's injuries as a result of the accident are minor in nature and fall within the MIG. The applicant has reached the $3,500.00 funding limit provided by section 18. I have also found no evidence of a statutory breach of section 38 of the Schedule which would entitle the applicant to the disputed treatment and assessment plans. Considering this, an analysis on entitlement to the remaining treatment plans is unnecessary.
INTEREST AND AN AWARD
29Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. The disputed treatment plans are not payable because the applicant is subject to the MIG and the plans propose treatment outside of the MIG. The applicant is not entitled to interest as a result.
30Pursuant to section 10 of O. Reg. 664, the applicant is only entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. The applicant is not entitled to an award because none of the withheld benefits were unreasonably withheld or delayed. No award is payable as a result.
CONCLUSION
31Upon review of the submissions and medical evidence, I find that the applicant's injuries as a result of the accident are predominantly minor injuries and fall within the MIG. As a result, the applicant is subject to the funding limit prescribed by section 18 of the Schedule.
32The disputed treatment plans are not payable because the plans propose treatment outside the MIG.
33No interest is owed, and no award is payable.
Released: May 19, 2020
Brian Norris
Adjudicator
Footnotes
- 2017 CanLII 59515.
- 2018 CanLII 39373.
- Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707