Robert Karabulut v. Economical Insurance, 2021 CanLII 124024

Citation: Karabulut v. Economical Ins., 2021 ONLAT 20-008392/AABS

Licence Appeal Tribunal File Number: 20-008392/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:

Robert Karabulut

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: David Schell, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: In Writing

BACKGROUND

1The applicant was injured in an automobile accident on August 3, 2018, and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). Economical denied the treatment in dispute. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Did the applicant sustain predominantly minor injuries as a result of the accident that are treatable within the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $1,982.44 for other goods and services recommended by Maya Physio and Health Inc. in a treatment plan (OCF-18) dated April 30, 2019?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not met his burden of demonstrating that he sustained an impairment that justifies removal from the MIG or that the OCF-18 in dispute is reasonable and necessary. No interest is payable.

ANALYSIS

The applicability of the MIG

4The applicability of the MIG was not identified as an issue in dispute in the applicant’s application or in the Tribunal’s Case Conference Order. The applicant did not address his standing within the MIG in his initial submissions. Rather, Economical addressed the applicability of the MIG in its responding submissions, pointing out that the applicant had yet to exhaust the $3,500 in MIG funding available to him at 2.5 years post-accident. In turn, Economical submits that because the applicant still has funds available to him within the MIG—the Benefit Statement in evidence indicates he has $1,766.81 remaining—that he still bears the burden of demonstrating that his impairments warrant treatment beyond it, in addition to his burden to prove that the treatment he seeks is reasonable and necessary, because the OCF-18 proposed would take him out of the MIG. The applicant then provided submissions speaking to the MIG in his reply.

5I agree with Economical. The denial of the sole treatment plan in dispute was not based on the MIG, but rather on Economical’s belief, based on the s. 44 report of Dr. Dharamshi, that the treatment was not reasonable and necessary because the applicant sustained soft-tissue injuries and had achieved maximal medical recovery from facility-based treatment. At the time the OCF-18 was submitted, it appears that the applicant still had more than half of the funds under the MIG available to him. On these facts, I agree that the applicant must first demonstrate that treatment beyond the MIG is required.

6It is well-settled that in order to receive treatment beyond the $3,500 limit provided by the MIG, the applicant must demonstrate that their accident-related impairments are not predominantly minor injuries, as defined by s. 3(1) of the Schedule, or that they have a pre-existing condition that prevents their recovery if they are kept within the MIG, under s. 18(2). The Tribunal has also determined that chronic pain or psychological impairments may justify removal from the MIG.

7The applicant did not provide much in the form of objective medical evidence to support his claim. He relies solely on OCF forms and Economical’s s. 44 report to prove his claim, arguing in submissions that he continues to experience accident-related pain that he identifies as chronic and that a previous accident in 2013 prevents his recovery under the MIG.

8I find there is limited evidence that the applicant sustained an impairment that justifies treatment beyond the MIG. His physical injuries are identified as WAD-II, cervical, shoulder and lumbosacral strain and sprains, as well as a knee contusion, with an expected disability of 9-12 weeks. These impairments clearly fall within the definition of a minor injury under s. 3(1). While the s. 44 report advised that an ultrasound of the applicant’s shoulder would be needed to properly address the impairment, the applicant did not provide imaging to support his claim and did not reference same. In any event, that the applicant has yet to exhaust the funds available under the MIG over 2.5 years post-accident supports, in my view, that he sustained a minor injury.

9With regard to s. 18(2), to escape the MIG on this ground, the applicant must provide compelling evidence from a medical practitioner of a pre-existing impairment that would prevent their recovery if they are kept within the MIG. Here, the applicant relies only on submissions and an OCF-3 in reference to the 2013 accident. Yet, the OCF-18 in dispute—and his own submissions—both acknowledge that “there was no condition or injury that the Applicant had suffered prior to the accident that would affect his response to the treatment.” He also purportedly recovered from the pinched nerve in his back. With no other medical evidence to support his claim, he cannot be successful on this ground.

10Further, while I am alive to the applicant’s claim that he suffers from chronic pain, I was not directed to an actual diagnosis of chronic pain syndrome or even contemporaneous notes from a family physician or treatment provider that would support a functional impairment requiring treatment beyond the MIG. His submissions fail to address the severity of his pain or how his pain causes functional impairment. His submissions do not indicate how he meets any of the six criteria for chronic pain under the AMA Guides that the Tribunal has adopted for evaluating chronic pain claims in the absence of a diagnosis. Indeed, while the applicant may have lingering pain, he has continued to work at two physical jobs, reports no issues with his daily activities, has not undergone treatment in over two years and takes Tylenol about three times per week when he has pain. With respect, and without more information, I cannot find that the applicant has a chronic pain condition based on the evidence before the Tribunal.

11As a result, I find the evidence to be in line with the s. 44 report of Dr. Dharamshi, who determined that the applicant had attained maximum medical recovery and therapeutic benefit from facility-based treatment. Based on the dearth of evidence before me, I find no reason to interfere with Economical’s determination that was based on that report. The applicant has not demonstrated that removal from the MIG is required.

Is the treatment plan reasonable and necessary?

12For completeness, and in case the applicant has submitted treatment under the MIG since this application was submitted, I will address the sole benefit in dispute as well. To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

13Here, again, the applicant relies solely on the OCF-18. It is well-settled that treatment plans are not medical evidence. In his s. 44 report, Dr. Dharamshi found that the applicant had achieved maximal medical recovery and that ongoing facility-based treatment, such as the $1,982.44 in massage proposed, would not provide therapeutic benefit. The applicant counters by arguing that pain relief is a legitimate goal for treatment. While I agree, generally, the applicant has not provided any contemporaneous notes or records to support that he has ongoing pain as a result of the August 3, 2018 accident or what prompted the referral for same at the cost proposed. While his subjective reporting is captured in Dr. Dharamshi’s report, the applicant provided no evidence to rebut Dr. Dharamshi’s opinion that massage was not reasonable and necessary or proof that he incurred the treatment, as is his burden. Accordingly, I cannot find that the OCF-18 is reasonable and necessary or partially payable up to the MIG limits. As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

14The applicant has not met his burden of demonstrating that he sustained an impairment that justifies removal from the MIG or that the OCF-18 in dispute is reasonable and necessary.