Licence Appeal Tribunal File Number: 20-005598/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:
Alex Watson
Applicant
and
Echelon General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Ryland MacDonald, Counsel
HEARD:
By way of written submissions
BACKGROUND
1A.W. was injured in an automobile accident on March 13, 2018, and sought benefits from Echelon, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule"). Echelon denied the disputed benefits on the basis that it determined that A.W.'s injuries were predominantly minor and subject to treatment within the Minor Injury Guideline (the "MIG"). A.W. disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Are A.W.'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 MIG?
b. Is the medical benefit in the amount of $2,590.76 for physiotherapy treatment, recommended by Body Dynamics in a treatment plan (OCF-18) submitted March 21, 2019, denied April 5, 2019, reasonable and necessary?
c. Is the cost of examination expense in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Ricardo Harris in an OCF-18 submitted October 4, 2018, denied October 24, 2018, reasonable and necessary?
d. Is A.W. entitled to interest on any overdue payment of benefits?
3In his submissions, A.W. withdrew issue number [2] c. The remaining issues will therefore be the focus of my decision.
FINDING
4A.W. sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the MIG.
5The MIG limits have been exhausted, therefore there is no requirement to determine if the disputed OCF-18 is reasonable and necessary.
6As there are no outstanding benefits, A.W. is not entitled to interest.
ANALYSIS
Applicability of the MIG
7Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a "minor injury" 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." To be removed from the MIG, an insured must establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence indicating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. The applicant bears the onus of establishing, on a balance of probabilities, any entitlement beyond the MIG limit.
8While the issue of MIG determination is one of the issues in dispute, A.W.'s submissions failed to address why he should be removed from the MIG. His initial submissions are made up entirely of the treatment history from his treatment providers and the noted pain complaints. On reply, A.W. focused on what Echelon's actions in response to the treatment plans were, but again failed to demonstrate why he should be removed from the MIG, which is his burden. Essentially, A.W. relies on his treatment history as evidence of entitlement to the OCF-18 in dispute and infers that as a result of the accident, he has chronic pain. In any event, it is unclear what I am to rely on to make a justifiable determination that he should be removed from the MIG.
9Accordingly, I am not able to find that A.W. has demonstrated that he requires treatment beyond the MIG limits on any of the grounds that the Tribunal has determined justify removal. I reiterate here that there are four grounds for removal, being, a) if an insured can establish that their accident-related injuries fall outside of the MIG or, b) under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG, c) chronic pain with functional impairment or, d) a psychological condition may warrant removal from the MIG.
10Although I note the pain complaints from the treatment provider records, it is not clear how the accident-related injuries fall outside the definition of a minor injury under the Schedule. I am not directed to any opinion from any treatment provider that these noted pain complaints would prevent maximum medical recovery if A.W. is kept within the MIG pursuant to the requirements set out in s. 18(2). In fact, many of the treatment records from the family physician are for pain complaints and ailments that are not accident related. Further, the OCF-23 from treatment provider, Body Dynamics, indicated that A.W. would be treated under the MIG as he sustained lumbar and thoracic sprain and strain.
11A.W. has failed to identify any of the four grounds for removal from the MIG, and as a trier of fact, I am not required to decide which ground he should rely on. A.W. is reminded that the burden is his to establish that he should be removed from and requires treatment beyond the MIG. I find that the medical evidence supports that he suffered physical injuries which are soft tissue in nature and are captured within the MIG definition of minor injuries.
12Echelon relies on the report of its assessor, Dr. Rabinovich, who opined that A.W. suffered soft tissue injuries that are treatable within the MIG. Dr. Rabinovich concluded that A.W. did not require any further facility-based treatment, and his accident-related injuries were treatable within the MIG.
13Echelon's position is that A.W. appears to allege that he suffers from chronic pain as a result of the accident. It submits, and I agree, that he has failed to establish he suffers from chronic pain for several reasons. First, chronic pain cannot be assumed to be the case solely on the length of time that has passed since the injuries were sustained or the number of times A.W. sought treatment for his accident-related pain symptomatology. Second, it is well established that in order to be removed from the MIG due to chronic pain, an applicant must show that they have been diagnosed with chronic pain syndrome or demonstrate that his chronic pain has resulted in functional impairment. A.W. has not been diagnosed with chronic pain syndrome. am also not directed to any medical documentation that shows he has been diagnosed with chronic pain. Third, the family physician did not refer A.W. to any chronic pain specialist or clinic, nor has pain medication been prescribed for accident-related pain. In addition, A.W. returned to work as a full-time drywall installer after the accident, for at least two years, until he stopped working due to a lung condition in September 2020. Lastly, A.W. did not establish that he satisfied any of the criteria under the AMA Guides that the Tribunal has adopted as an interpretive tool for evaluating chronic pain claims. Accordingly, I am not persuaded that A.W. is an individual who has suffered functional impairment as a result of accident-related chronic pain.
14As a result, and in the absence of any contemporaneous evidence which recommended that further facility-based treatment was required, A.W. has not established, on a balance of probabilities, that his accident-related injuries require removal from and treatment beyond the MIG.
Is the treatment plan reasonable and necessary?
15I have determined that A.W. has not established that removal from the MIG is warranted. Consequently, an analysis of whether the disputed OCF-18 is reasonable and necessary is not required, as the MIG limits have been exhausted. As no benefits are overdue, no interest is payable pursuant to s. 51 of the Schedule.
DISCUSSION
Section 33 and Section 55 of the Schedule
16Echelon raised s. 33 non-compliance and s. 55 restriction arguments regarding provision of an OHIP summary and failure to attend a s. 44 psychological assessment, respectively. In light of my finding that A.W. remains in the MIG and the disputed OCF-18 is not reasonable and necessary, an analysis into his non-compliance is moot.
CONCLUSION
17A.W. has not met his burden to demonstrate that treatment beyond the MIG is required. He is not entitled to the OCF-18 in dispute or interest. The application is dismissed.
Released: November 26, 2021
______________________
Derek Grant, Adjudicator
Footnotes
- O. Reg. 34/10, as amended.