19-005470/AABS
Released Date: 01/13/2021
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:
Winston Moodie
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Winston Moodie, Applicant
Ramya Satkunapalan, Paralegal
For the Respondent:
Co-operators General Insurance Company, Representative
Emily Schatzker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, W.M., was involved in a motor vehicle accident on August 4, 2017 and applied for medical benefits from the respondent Co-operators.
2Co-operators argues that all of W.M.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“the MIG”).1 W.M.’s position is exactly the opposite.
3If Co-operators is correct, W.M. remains subject to the $3,500.00 limit on benefits prescribed by s.18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the cost of the treatment sought exceeds the MIG limit, which has been exhausted.
4I must decide whether W.M.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit and, if they are not, I must determine his entitlement to the medical benefits in dispute.
ISSUES
5The issues I am asked to determine are:
a. Did W.M. sustain predominantly minor injuries as defined under the Schedule?
b. Is W.M. entitled to an income replacement benefit (“IRBs”) in the amount of $400.00 per week from May 1, 2018 to date and ongoing?
6If W.M. did not sustain predominantly minor injuries, then I must determine:
c. Is the medical benefit in the amount of $2,409.20 for chiropractic services provided by Midland Wellness Centre as set out in a treatment and assessment plan (“OCF-18”) submitted February 5, 2018 and denied on February 20, 2018, reasonable and necessary?
d. Is the medical benefit in the amount of $1,995.33 for a psychological assessment recommended by Midland Wellness Centre in an OCF-18 submitted on March 1, 2018, and denied on March 16, 2018?
e. Is the applicant entitled to a medical benefit in the amount of $1,973.60 for chiropractic and massage treatment recommended by Midland Wellness Centre in an OCF-18 submitted on March 13, 2018, and denied on March 26, 2018?
f. Is the applicant entitled to a medical benefit in the amount of $1,823.50 for chiropractic and massage treatment recommended by Midland Wellness Centre in an OCF-18 submitted on October 3, 2018, and denied on October 17, 2018?
g. Is W.M. entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
7Co-operators submits that the quantum amounts of the OCF-18s listed in the Tribunal Order dated October 25, 2019 were incorrect. Based on a review of the evidence and party submissions, the correct amounts are listed above.
8W.M. did not address the issue of IRBs in his submissions. Co-operators submits that W.M. this amounts to a withdrawal of the issue. On Reply, W.M. also did not address the issue of IRBs. As such, I consider the issue of IRB to be withdrawn. Therefore, the decision will focus on the issues of MIG, the OCF-18s and interest.
RESULT
9Based on a review of all the evidence put before me, I find that W.M.’s injuries/impairments meet the definition of “minor injury” under the Schedule. As the MIG limit has been exhausted, it is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.
ANALYSIS
Did W.M. sustain physical injuries that remove him from the MIG?
10Although W.M. has provided medical evidence confirming he sustained accident-related injuries, none of the evidence shows that his physical injuries fall outside the MIG. In addition, the evidence submitted by Co-operators confirms that W.M.’s physical injuries fall within the MIG.
11My finding that W.M.’s physical injuries fall within the MIG is supported by the following evidence:
(i) The Disability Certificate (“OCF-3”) completed by physiotherapist Dipal Modi, dated August 5, 2017, confirms W.M. has soft tissue injuries listed as whiplash associated disorder (WADI), sprain and strain of lumbar spine, sprain and strain of cervical spine and non-organic sleep disorders. The OCF-3 is consistent with the complaints seen in W.M.'s treatment records;
(ii) Diagnostic imaging reveals various degenerative changes. There is no medical explanation as to why the degenerative pathology is sufficient to warrant removal from the MIG limit;
(iii) In his submissions, W.M. mentions chronic pain. Although pain relief is a legitimate goal for treatment, I find no diagnosis of chronic pain or chronic pain syndrome in the medical documentation. Although a diagnosis of chronic pain or chronic pain syndrome is not strictly required, it is difficult to concede that further facility-based treatment is necessary to treat allegedly chronic impairments where no recommendation to do so has been made. Further, W.M. did not provide continuous, corroborating records as evidence that his pain causes him functional impairment. There is no analysis of the severity, frequency or duration of W.M.’s alleged chronic pain and the functional impact it has on his daily activities in the medical documentation or in submissions. In the absence of a diagnosis or even a discussion of the functional impact of the alleged chronic pain, it is not sufficient to claim that treatment is reasonable and necessary because of chronic pain; and
(iv) On behalf of Co-operators, Dr. Zabieliauskas and Dr. Marchie, physiatrists, prepared reports dated January 4, 2018 and January 3, 2019, respectively. Dr. Zabieliauskas diagnosed W.M. with similar sprain and strain types of injuries as were indicated in the OCF-3. On examination, Dr. Marchie noted full range of motion. Dr. Mr. Marchie opined that W.M.'s injuries were minor in nature. I agree.
12The medical evidence submitted by W.M. and Co-operators confirm that W.M.’s physical injuries are consistent with those that would be defined as a “minor injury”. The evidence supports and I find that W.M. suffered soft tissue injuries as a result of the accident. W.M. has failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.
Did W.M. sustain psychological injuries that remove him from the MIG?
13For the reasons that follow, I find that W.M.’s own evidence does not support that his psychological impairments would remove him from the MIG. My finding is based on the following:
(i) W.M. did not point me to any medical evidence outside of the OCF-18 that support he suffered accident-related psychological impairments;
(ii) There is no evidence from W.M.’s treating family physician of any psychological complaints, prescriptions for psychological medications, or any referrals for psychological treatment; and
(iii) In his submissions, W.M. reported to the s. 44 assessor, psychologist Dr. Sivasubramanian that “he is not currently interested in pursuing any psychotherapy.” Further, Dr. Sivasubramanian opined that W.M. did not sustain a significant psychological impairment as a result of the accident.
14Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that W.M. suffers from a psychological impairment that is not subject to the MIG.
15W.M. has not provided medical evidence to demonstrate that he is unable to recover under the MIG as a result of any accident-related psychological impairments. Therefore, he has not met the onus of establishing his entitlement to psychological treatment beyond the MIG limits.
CONCLUSION
16W.M. has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. As the MIG limit has been exhausted, consequently, he is not entitled to payment of the benefits in dispute. As no benefits are overdue, no interest is payable.
Released: January 13, 2021
___________________________
Derek Grant
Adjudicator
Footnotes
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.