Licence Appeal Tribunal File Number: 20-008939/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:
Zachary Vujic
Applicant
and
The Personal
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Brendan Sullivan, Counsel
For the Respondent:
April Snow, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on April 5, 2018, and sought benefits from the respondent, The Personal, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). The applicant was denied the assessment in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
a. 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?
b. Is the applicant entitled to $2,200.00 for an attendant care assessment, recommended by Alexandra Padini in a treatment plan dated March 31, 2020?
c. Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, that the assessment is reasonable and necessary or that interest or an award are appropriate.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5As I understand it, the applicant submits that he sustained a concussion, severe migraines, numbness in his hands and pain in his back, neck, wrist, ribs and knee as a result of the 2018 accident. He submits that he underwent treatment for same and that the assessment was submitted to help him assess his attendant care needs. He argues that The Personal’s denial of the assessment based on the MIG did not satisfy the s. 38(11) requirements and further alleges that The Personal has ostensibly agreed that the assessment is reasonable and necessary but has attempted to pay it under a separate, unrelated 2019 accident claim in order to save costs, entitling him to an award.
6In response, The Personal raised a causation defence, pointing to the fact that the applicant was involved in a subsequent accident on January 17, 2019. It asserts that the applicant has not demonstrated that but for the 2018 accident, he would not have sustained his impairments, which is his burden. The Personal submits that as a result of the 2018 accident, the applicant sustained soft tissue injuries that were treatable within the MIG, that attendant care is not available for minor injuries and that he did not submit the assessment plan until two years after the 2018 accident and over one year following the 2019 accident.
7In this vein, it argues that where attendant care is not available to persons within the MIG and where the applicant has not provided medical evidence to support that the 2018 accident caused his impairments, it follows that an assessment for attendant care needs would not be reasonable and necessary. The Personal further asserts that the applicant has not met his MIG burden, that he has not provided actual medical evidence to support the submissions he makes regarding his condition and that he has not met his burden to prove that the assessment is reasonable and necessary. Finally, The Personal pointed to evidence that the applicant’s legal representative has unclean hands, as he instructed that the OCF-18 in dispute be submitted under the 2018 claim.
8I agree with The Personal. While the applicant may be experiencing limitations as a result of the 2019 accident, he has not demonstrated that the 2018 accident caused impairments that fall outside of the MIG or that the assessment for attendant care is reasonable and necessary but for impairments sustained in that accident. Indeed, the applicant was diagnosed with soft-tissue injuries in the form of pain, contusions, whiplash and back strain. He underwent physiotherapy for his pain. In 2018, diagnostic imaging reports were unremarkable, and the neurology exam was normal. In August 2018, x-rays of the spine were all normal. Despite his submissions, there is no diagnosis of a concussion in the medical documentation. In November 2018, no ongoing treatment was recommended. The medical evidence before the Tribunal is limited. I was not directed to a diagnosis of a concussion and the April 2019 CT scan, taken after the second accident in 2019, was normal. Accordingly, the physical impairments related to the 2018 accident all fall squarely within the MIG.
9For completeness, the applicant did not provide submissions or a medical opinion to support removal from the MIG under s. 18(2) for a pre-existing condition and he did not provide evidence of chronic pain with functional impairment related to the 2018 accident. While there is a March 2019 letter from Dr. Milenkovic, psychiatrist, diagnosing anxiety disorder, the letter makes reference to both accidents and the applicant did not provide submissions or evidence to link his purported nightmares to the 2018 accident that is in dispute here nor did he demonstrate how this psychological sequelae would warrant removal from the MIG. Indeed, the applicant’s first psychological complaints to his family physician came after the 2019 accident. As a result, on the medical evidence before the Tribunal, I see no reason to interfere with The Personal’s determination that his 2018 accident-related impairments were predominantly minor injuries.
Is the assessment reasonable and necessary?
10Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the assessment plan is reasonable and necessary is not necessarily required and especially so where insureds who are in the MIG are not entitled to attendant care and where the treatment plan was submitted two years after the 2018 accident with the 2019 accident occurring in between. The applicant did not report any issues with personal care during his visits to his family physician in February, March and May of 2019. There is no documented issue with hand pain or numbness in his family physician records, no cannabis prescription and no indication that he has been receiving assistance that would support an investigation into attendant care needs stemming from the 2018 accident. The applicant continued to work following the 2018 accident.
11The applicant also alleged that The Personal’s denial notice was improper under s. 38(11). However, on review, the notice easily complies with the requirements of the Schedule, as it identifies the benefit in dispute, explains in unsophisticated terms that his impairments were categorized as minor and that he did not provide evidence of a pre-existing condition, a finding I echo here. The notice explained that attendant care was not available for minor injuries under s. 14(2). The dispute resolution information is attached. The applicability of the MIG is a valid medical or other reason for denying an attendant care assessment that was requested two years post-accident where causation is at issue.
12Finally, the applicant also made concerning allegations that The Personal was attempting to push his assessment claim to his 2019 accident claim as a way to manipulate him and minimize its exposure. However, the log notes reveal that it was the applicant’s representative who interfered with the adjustment process by instructing the applicant’s occupational therapist to submit the OCF-18 under the 2018 claim. It was not a bad faith decision by The Personal or an attempt to save costs, as alleged. Rather, contrary to the applicant’s claims, the log notes demonstrate a good faith effort by The Personal’s adjuster to have the assessment submitted under the relevant accident claim.
13I note that the applicant did not file submissions to rebut this evidence, despite having the benefit of reply. Moreover, with this information, I agree with The Personal that it was reasonable to consider the reasonableness and necessity of an attendant care assessment under the 2019 claim as the 2018 impairments may then constitute a pre-existing injury. However, where there is no evidence that the 2018 accident caused impairments that would reasonably require attendant care and where the applicant sustained minor injuries, The Personal’s denial was proper, and its adjustment of the claim thereafter was reasonable. There is no evidence to attract an award under s. 10 of O. Reg. 664. In any event, as no benefits are overdue, it follows that there is no basis for an award.
14As no benefits are overdue, it follows that no interest is payable under s. 51.
CONCLUSION
15The applicant has not demonstrated that his 2018 accident-related impairments warrant removal from the MIG, that the assessment plan is reasonable and necessary or that an award or interest are appropriate.
Released: December 17, 2021
Jesse A. Boyce, Vice-Chair