Licence Appeal Tribunal File Number: 19-011988/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:
Purusothman Ambigapathy
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant: Salome J. Lopes, Paralegal
For the Respondent: Peter Yoo, Counsel
HEARD: By way of written submissions
REASONS FOR DECISION
BACKGROUND
1The applicant, Purusothman Ambigapathy, was involved in an automobile accident on June 13, 2017, and sought benefits from the respondent, Allstate Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline2 and denied him medical benefits outside the $3,500.00 funding limit available under the Schedule. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to a medical benefit in the amount of $1,900.48 for chiropractic treatment recommended by Allied Physiotherapy in a treatment plan submitted on October 9, 2017 and denied by the respondent on October 29, 2017?
iii. Is the applicant entitled to payment for the cost of examination in the amount of $2,200.00 for a psychological assessment recommended by The Life Clinic in a treatment plan submitted on August 20, 2019, and denied by the respondent on September 13, 2019?
iv. Is the applicant entitled to payment for the cost of examination in the amount of $2,200.00 for a chronic pain assessment recommended by North American Spine Institute in a treatment plan submitted on August 16, 2019, and denied by the respondent on August 29, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?3
RESULT
4The applicant has not met his onus in establishing entitlement to benefits outside the Minor Injury Guideline. It is therefore unnecessary to consider whether the individual treatments and assessments in dispute are reasonable and necessary. No benefits are payable, and no interest is owing. The application is dismissed.
ANALYSIS
5To be eligible for the medical benefits he seeks in this application, the applicant has the onus of proving, on a balance of probabilities, that his accident-related injuries are not predominantly “minor” as defined in the Schedule. The term “minor injury” is defined in s. 3(1) 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.”
6If the applicant’s injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident. However, in this case, the applicant claims that the respondent’s denial notices were deficient under s. 38(8) of the Schedule, which requires that notice be sent no more than 10 business days from the receipt of the treatment plan by the insurer. Non-compliance with s. 38(8) means the insurer cannot take the position that the Minor Injury Guideline applies with respect to the treatment plan, and depending on whether expenses under the plan are incurred before proper notice is issued, the insurer may be required to pay for those expenses under s. 38(11).
7Section 18(2) of the Schedule provides that the $3,500.00 limit does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if he is subject to the limit Minor Injury Guideline limit.
8The applicant submits that he sustained injuries in the accident that exceed the definition of a minor injury, namely chronic pain. He also submits that he should be removed from the Minor Injury Guideline on account of his pre-existing medical conditions. For the reasons set out below, I find that the applicant’s accident-related injuries meet the minor injury definition. I also find that he has failed to satisfy the test for removal from the Minor Injury Guideline set out in s. 18(2) of the Schedule.
The applicant sustained minor, soft tissue injuries in the accident
9The applicant’s submissions are largely a recitation of the evidence. His submissions do not highlight evidence suggesting physical injuries from the accident that exceed the definition of a minor injury under s. 3 of the Schedule. For example, the hospital records from the date of the accident only document complaints of “muscle pain”. Objectively, the applicant appeared “well”. He was ambulatory. He was diagnosed with a laceration on his left forearm and hand, and prescribed Tylenol #2. X-rays conducted that day were unremarkable.
10The applicant submits that his injuries exceed the definition of a minor injury because he has developed chronic pain syndrome as a result of the accident. He relies on the chronic pain assessment of Dr. Jason Mazzarella, who lists his qualifications as Chiropractor, Accident Reconstructionist, and Chronic Pain Diplomate. I attach very little evidentiary weight to this report.
11First, a chiropractor is not a medical doctor and is not qualified to diagnose some of the conditions listed in the report. Dr. Mazzarella diagnoses some soft tissue injuries (whiplash, strain and sprain injuries), but he also purports to diagnose chronic pain syndrome, post-concussion syndrome, a cranial nerve injury, traumatic stress, and acute traumatic stress reaction. The applicant, relying on 17-005631 v. Aviva Insurance Canada, submits in reply that the Tribunal has made exceptions as to what conditions a chiropractor can diagnose based on the qualifications of the assessor.4 The specific qualifications of the chiropractor in that case are not before me, however, it is well-accepted that while chiropractors are qualified to treat chronic pain syndrome, they are not qualified to diagnose it.
12The applicant’s submission appears to acknowledge that finding a chiropractor qualified to diagnose chronic pain would be exceptional. I see nothing in Dr. Mazzarella’s stated qualifications that would authorize him to diagnose the range of physical and psychological impairments he purports to diagnose. I find that the additional summary of his professional qualifications filed by the applicant in reply, which lists his “medical background” as a “Licensed Doctor USA and Canada”, to be seriously misleading and an overstatement of his qualifications. This document also states that Dr. Mazzarella was recognized among the “Leading Physicians of the World 2014”, though is unclear what this certification means. To be clear, there is no evidence before me that Dr. Mazzarella is a medical doctor licensed in Ontario, and I therefore give no weight to the diagnoses he makes that fall outside his scope of practice.
13Second, much of the analysis in Dr. Mazzarella’s report is irrelevant to the impairments the applicant submits he suffers from and is unhelpful. For example, while the report goes into a detailed crash forensic analysis, it does not link the applicant’s clinical presentation to the diagnostic criteria for chronic pain.
14Third, the report diagnoses serious psychological impairments, diagnoses that neither correspond with the applicant’s submissions nor are supported by the objective medical evidence in the record before me. I conclude that the applicant’s pain complaints are the clinically associated sequelae of his minor injuries.
15Dr. Mazzarella’s report is unreliable, and the remainder of the medical evidence demonstrates only minor, soft tissue injuries and their sequelae. Therefore, I conclude that the applicant’s accident-related injuries fall within the minor injury definition in s. 3 of the Schedule.
Pre-existing conditions not shown to prevent recovery from minor injuries
16The applicant has not met his onus in satisfying the test for removal from the Minor Injury Guideline based on his pre-existing conditions. His submissions on this point list a couple of pre-existing conditions but make no effort to demonstrate that he suffers from pre-existing conditions capable of satisfying the test set out in s. 18(2) of the Schedule. He does not attempt to show how those conditions would prevent him from achieving maximal recovery within the Minor Injury Guideline. He does not present compelling medical evidence capable of supporting such a finding. Because he has not done so, I cannot conclude that he is entitled to benefits exceeding $3,500.00, the monetary limit for the treatment of minor injuries.
The respondent’s notices complied with s. 38(8) of the Schedule
17The applicant submits that the denial notices issued by the respondent were non-compliant with s. 38(8) of the Schedule, and that the respondent should therefore be subject to the consequences set out in s. 38(11), prohibiting it from taking the Minor Injury Guideline position in respect of the treatment plans, and requiring that it pay for the services incurred during the period of non-compliance with the notice requirements.
18The respondent denies that its notices were issued outside the 10-business day timeline required under s. 38(8). The respondent’s submissions detail the timing of its notices in relation to the submission dates of the treatment plans in dispute. Essentially, the respondent states that the treatment plans were submitted through Health Claims for Auto Insurance (HCAI) several days after they were prepared and signed, bringing all of the denial dates within the 10-business day timeframe under s. 38(8) of the Schedule.
19I have carefully reviewed the OCF-18s and denial notices, and while there are discrepancies between the dates identified in the Case Conference Report, the parties’ submissions, and the documents themselves, the dates in evidence can be summarized as follows:
| Date of OCF-18 | Claim amount | Proposed treatment/assessment | Date of submission on Health Claims for Auto Insurance (HCAI) | Date of denial |
|---|---|---|---|---|
| November 9, 2017 | $1,900.48 | Physiotherapy | November 14, 2017 | November 28, 2017 |
| August 20, 2019 | $2,200.00 | Psychological assessment | September 3, 2019 | September 12, 2019 |
| August 20, 2019 | $2,200.00 | Chronic pain assessment | September 3, 2019 | September 12, 2019 |
20The evidence supports the respondent’s position that the denials were compliant with the timeline set out in s. 38(8). The applicant did not contest the respondent’s submissions on this point or challenge the evidence in his reply. I am satisfied that the respondent’s notices were compliant and that the consequences under s. 38(11) do not apply. The respondent is not barred from taking the Minor Injury Guideline position in respect of any of the treatment plans, nor is it required to pay for any of the expenses proposed.
CONCLUSION
21The applicant has failed to discharge his evidentiary onus. He has not shown, on a balance of probabilities, that he is entitled to treatment outside the Minor Injury Guideline. He has not established non-compliance on the part of the respondent with the notice requirements set out in s. 38(8) of the Schedule. Therefore, none of the benefits he seeks are payable, and no interest is owing. The application is dismissed.
Released: November 9, 2021
__________________________
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10.
- Superintendent’s Guideline No. 01/14.
- Some of the dates identified in the Case Conference Report and Order are at odds with the treatment plans in evidence. See paragraph 19 for a table setting out the dates that correspond with the record.
- 2019 CanLII 63375 (ON LAT)(reconsideration decision).