Citation: Coward vs. The Co-operators, 2020 ONLAT 19-007827/AABS

Released Date: 11/24/2020

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:

Marcus Coward

Applicant

and

The Co-operators

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Anna Korolkova

Paralegal

For the Respondent:

Melanie Malach

Counsel

HEARD By Way of Submissions in Writing

REASONS FOR DECISION AND ORDER

OVERVIEW

1Marcus Coward (“applicant”), was involved in an automobile accident on April 20, 2017 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was 27 years old at the tie of the accident. The applicant was denied certain benefits by the respondent, The Co-operators (“respondent”), and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

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 respondent has already provided treatment up to the monetary limits of the MIG. The applicant disagrees and has applied to the Tribunal for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,232.12 for medical services recommended by Downsview Healthcare Inc., in a treatment plan submitted July 20, 2017 and denied by the respondent on August 1, 2017?

iii. Is the applicant entitled to payment for the cost of an examination, in the amount of $2,000.00 for a psychological assessment, recommended by Downsview Healthcare, in a treatment plan submitted on September 9, 2017, and denied by the respondent on October 2, 2017?

iv. Is the applicant entitled to interest on any overdue 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 provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed.

LAW

The Minor Injury Guideline

5The 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 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 a “minor injury” are subject to a $3,500.00 funding limit on treatment.

6To 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 a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

7The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

8As the applicant can only be successful on the issues in dispute if he can prove that his injuries caused by the accident are not minor, I will determine that issue first.

ANALYSIS

9I find that the applicant’s physical injuries are minor injuries based on the medical evidence. The applicant submits went to the hospital after the accident, was examined and discharged. The July 11, 2017 OCF-18, treatment plan, by Dr. Pivtoran of Downsview Healthcare Inc.(“Downsview”), applicant’s chiropractor, describes the applicant’s physical injuries as sprain and strain of cervical spine and thoracic spine, dislocation, sprain and strain of joints and ligaments of lumbar spine, and shoulder girdle. Dr. Pivtoran’s April 24, 2017 OCF-3, disability certificate, describes the applicant’s physical injuries as cervical, lumbar and thoracic spine strain/sprain and bilateral shoulder lesion. Dr. Pivtoran’s August 22, 2017 disability certificate contains the same description of the applicant’s physical injuries with the addition of the word “chronic” to the spine strain/sprain. All of these all fall within the definition of “minor injury”. None of the applicant’s other medical reports and records indicate any physical injuries other than soft tissue injuries. However, the applicant argues that other conditions remove him from the MIG.

Does the applicant have psychological impairment as a result of the accident?

10I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment as a result of the accident justifying treatment beyond the MIG.

11Dr. Pivtoran’s April 24, 2017 disability certificate records that the applicant is experiencing difficulties relating to stress, nervousness, anxiety, sleep disturbance, driving anxiety and recommends a psychologist consultation. Dr. Pivtoran’s August 22, 2017 disability certificate and Dr. Pivtoran’s July 11, 2017 OCF-18, treatment plan, describe the applicant’s injuries as including “symptoms and signs involving emotional state”. None of these constitute medical diagnosis of psychological injury as Dr. Pivtoran is a chiropractor.

12The applicant also filed a September 9, 2017 OCF-18, treatment plan by Andrew Shaul, applicant’s psychologist at Downsview who describes the applicant’s psychological injuries as unspecified state of emotional shock and stress, symptoms and signs involving emotional state, unspecified behavioural syndromes associated with physiological disturbances and physical factors and limitation of activities due to disability reporting on a psychological pre-screen interview. I give this little weight. The treatment plan, without more, is insufficient to establish the applicant suffered psychological injury in the accident.

13The applicant did not file any corroborating medical evidence supporting psychological injury resulting from the accident and from the evidence before me does not appear to have sought medical treatment from a physician for psychological injury at any time following the accident. To the contrary, the applicant did not see a physician again until June, 2019 when he saw Dr. Radivojevic at Cadence Health Centre. Dr. Radivojevic noted that the applicant “feels well and denies any new medical concern”. When the applicant saw Dr. Wu at Dawson Medical Clinic in December, 2019 no accident-related injuries were noted.

14Following Andrew Shaul’s pre-screen the applicant was assessed by Dr. Hines, respondent’s psychiatrist, who reported March 12, 2018 that the applicant does not have a psychiatric illness or diagnosis and does not require any mental health treatment or rehabilitation directly related to the accident. I prefer the opinion of Dr. Hines who is a mental health physician and whose report is more thorough and comprehensive than Andrew Shaul’s pre-screen.

15Considering the totality of the evidence, the applicant’s medical evidence is insufficient to establish, on a balance of probabilities, that the applicant incurred psychological impairment as a result of the accident.

Does the applicant have chronic pain as a result of the accident?

16I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG. There is no diagnosis or any significant evidence of chronic pain related to the accident in the evidence filed by the applicant.

17The applicant returned to work several months after the accident, perhaps with some modifications, and according to the report of Dr. Hines continued to drive after the accident.

18Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Medical Benefit: Are the treatment plans reasonable and necessary?

19Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the medical treatment plan and cost of examination in dispute are reasonable and necessary.

Interest

20As no benefits are payable, no interest is payable.

ORDER

21For 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. As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.