Citation: Desir vs. Certas Home and Auto Insurance Company, 2021 ONLAT 20-000858

Released Date: 01/12/2021

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:

Olson Desir

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Cassandra Kleinman, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Olson Desir ("applicant"), was involved in a motor vehicle accident on April 27, 2018 ("accident") and as a result of the accident the applicant suffered injuries. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Certas Home and Auto Insurance Company ("respondent") determined that the applicant's injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline ("MIG").² The respondent submits that $82.25 of the MIG limit remains which the applicant does not dispute. The respondent submits that the disputed treatment plans are not reasonable and necessary.

3The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

4The issues to be decided in this hearing are:

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 in the Minor Injury Guideline?

B. Is the applicant entitled to the medical benefits and assessments recommended by Physiocare and Wellness Clinic, as follows?

i. $1,300.00 (less $1,055.00 already approved) for physiotherapy services, in a treatment plan submitted on November 7, 2018;

ii. $3,962.96 for medical services, in a treatment plan submitted on April 17, 2019;

iii. $2,000.00 for attendant care assessment and in-home assessment in a treatment plan submitted on November 29, 2018; and,

iv. $2,000.00 for a mental health assessment/psychological assessment, in a treatment plan submitted on December 11, 2018?

C. Is the applicant entitled to $640.00 for transportation expenses, submitted on May 6, 2019?³

D. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5The applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to the disputed balance of the physiotherapy treatment plan submitted November 7, 2018 or any of the three other treatment plans. The issue of transportation costs is not before me. There is no award. There is no interest.

LAW

6The MIG establishes a treatment framework available to an injured person who sustains a "minor injury" as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule 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". Under s. 18(1) of the Schedule, injuries that are defined as a "minor injury" are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of "minor injury". The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁴

ANALYSIS

Are the Applicant's Injuries Under the Minor Injury Guideline ("MIG")?

9The applicant submits that his injuries from the accident are not minor and relies on various medical records including the hospital records, records of his family physician Dr. Satkunananthan and the OCF-3, disability certificate, of Krishan Sood, the applicant's physiotherapist.

10I find that the applicant's physical injuries are minor injuries because the weight of the medical evidence indicates that the applicant suffered physical injuries from the accident which fall within the definition of minor injury.

11At the hospital, the applicant complained of knee pain, was noted to have no obvious deformity to the left knee, was ambulatory, limping in triage. After assessment, he was discharged home with a prescription for pain medication.

12Some ten days after the accident the applicant saw Dr. Satkunananthan on May 8, 2018 for an annual physical exam. Dr. Satkunananthan did not record the accident that day or in several subsequent visits in the next year for other health issues. Dr. Satkunananthan did not note the accident until April 6, 2019 when the applicant complained of lower back pain "for days". There is no mention of left leg pain. Although Dr. Satkunananthan notes "MVA April 2018", he does not clearly attribute the lower back pain to the accident. Dr. Satkunananthan's diagnosis is "low back pain". Advil is recommended, heat and follow-up in one to two weeks. There is no record before me of any follow-up.

13Although Dr. Brienza approximately one-year post-accident diagnosed the applicant with "snoring, joint pain and low back pain", Dr. Brienza's report shows the referral was for "dietary counseling" and there is no mention of a history of accident-related injuries in the report.

14Although Krishan Sood's May 9, 2018 disability certificate, describes the applicant's injuries as sprain and strain of the cervical, thoracic and lumbar spine, sprain and strain of hip, headache, "other sleep disorders, other anxiety disorders", Krishan Sood is a physiotherapist and is not qualified to diagnose any of these injuries. I give this disability certificate little weight.

15I find that all of the applicant's injuries fall within the definition of "minor injury". However, the applicant argues that he has a pre-existing medical condition which would remove him from the MIG.

Did the Applicant have a Pre-existing Medical Condition that would Remove him from the MIG?

16The applicant submits that he has a pre-existing condition from injuries he sustained in a previous motor vehicle accident on November 18, 2016 ("2016 accident"), that these injuries were worsened by the accident and would remove him from the MIG.

17The respondent acknowledges that the applicant was involved in the 2016 accident but disputes that there were ongoing injuries from it at the time of the accident. The respondent also submits that the presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG but that the applicant must adduce compelling evidence that the pre-existing condition prevents him from achieving maximal recovery within the MIG.

18I find that the applicant has brought forward no compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition, specifically the 2016 accident, that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit. To the contrary, the applicant's records establish that he had likely completely or substantially healed from the 2016 accident injuries at the time of the accident.

19The applicant relies on the November 22, 2016 record of Dr. Ali, applicant's physician, in respect of the 2016 accident. On that date, Dr. Ali noted the applicant's complaints of pain in the left knee and prescribed Vimovo. There is no record before me of further appointments with Dr. Ali.

20The applicant relies on the records of Dr. Zimmerman, applicant's physician. On November 30, 2016 that the applicant complains of pain in left knee, leg and hip as a result of the 2016 accident and Dr. Zimmerman diagnoses contusion and strain. Imaging of applicant's pelvis and hips on December 2, 2016 reveals no fracture or other joint abnormality. The applicant complains of pain on January 13, 2017 to Dr. Zimmerman who diagnoses lumbar strain. There are no records before me of further follow-up with Dr. Zimmerman regarding the 2016 accident.

21The applicant also relies on the December 1, 2016 OCF-3, disability certificate, of Dr. Krishna Patel, the applicant's chiropractor, who describes the 2016 injuries as sprain and strain of hip, thoracic spine, lumbar spine, ankle, and also dislocation and sprain and strain of joints and ligaments of knee, "problems related to lifestyle, employment malaise and fatigue". While Dr. Patel is not a physician and cannot diagnose, these physical injuries described by Dr. Patel are predominantly minor. Further, Dr. Patel indicates that the anticipated duration of the applicant's disability is 9-12 weeks. This period of time would have ended more than one year before the accident.

22The applicant also relies on the records of his new physician Dr. Satkunananthan who on November 21, 2017 noted that the applicant complained of "back pain". However, Dr. Satkunananthan does not attribute this to the 2016 accident. Also, Dr. Satkunananthan notes that the applicant is not on any medication and records "current concerns: none".

23None of these records constitute medical evidence sufficient to take the applicant's injuries out of the MIG. Further, the applicant was examined under oath by the respondent on June 21, 2019 and testified that he could not remember any issues with pain in his hip region, his left knee was "almost or if not completely okay" and his lower back pain was "going away and I would say almost, if not, good" at the time of the accident.

24I therefore find there is insufficient medical evidence before me that establishes the applicant should not be subject to the MIG because of the alleged pre-existing medical condition, specifically the 2016 accident.

Is the Treatment Plan for $1,300.00 (less $1,055.00 already approved) Reasonable and Necessary?

25I find on the evidence before me that the unapproved balance of $245.00 for this disputed treatment plan is not reasonable and necessary because there is no indication in the records of Dr. Satkunananthan or any of the applicant's other physicians that the applicant requires massage therapy or physiotherapy assessment in respect of injuries from the accident. As a result, the goals, treatment proposed and cost of the unapproved portion of this disputed treatment plan are not reasonable and necessary.

26Although the applicant submits that this treatment plan should be approved in full, the applicant has not put forward persuasive medical evidence that the goals of this proposed treatment, progress achieved to date and cost are reasonable and necessary. Therefore, I am unable to find that the balance of this disputed treatment plan is reasonable and necessary to the extent of the unexpended portion of the MIG funding limit, specifically $82.25.

27The applicant also submits that the respondent failed to provide the applicant with firm and clear medical and other reasons why the benefits were refused as required by s. 38(8) of the Schedule and made no clear statement to advise the applicant that it believes the MIG applies, as required by s. 38(9). The applicant submits, that as a result, the mandatory payment provisions under s. 38(11) are triggered.

28Section 38(8) of the Schedule requires the respondent within 10 business days to notify the applicant of the services in the treatment plan that the insurer does not agree to pay for and give the medical and other reasons it considers the services not to be reasonable and necessary. Section 38(9) provides that if the insurer believes that the MIG applies to the insured person's impairment, the notice under s. 38(8) must so advise the insured person.

29Having reviewed these provisions in the Schedule and the evidence put forward by both parties, I find that the respondent's November 15, 2018 Explanation of Benefits ("EOB") with respect to this treatment plan complies with ss. 38(8) and 38(9) of the Schedule. The EOB partially approves the medical recommendations made in this disputed treatment plan and sets out the reasons why, specifically that the policy limits have been reached after treatment totalling $1,055.00. The balance of the treatment plan is not denied on medical but rather on "other" grounds, being the policy limits. This is clearly stated and explained. Further, this EOB references the treatment plan at issue which seeks approval for treatment within the MIG. In this context I find that the respondent's position that the MIG applies was clearly communicated. Neither the proposed massage therapy services nor the proposed physiotherapy assessment would be covered by the remaining $82.25 in the MIG funding limit.

Is the Treatment Plan for $3,962.96 Reasonable and Necessary?

30I find on the evidence before me that this disputed treatment plan is not reasonable and necessary because, again, there is no indication in the records of Dr. Satkunananthan or any of the applicant's other physicians that the applicant requires chiropractic care, massage therapy or chiropractic assessment in respect of injuries from the accident. Although the applicant submits that this treatment plan should be approved in full, the applicant has not put forward persuasive medical evidence that the goals of this proposed treatment, progress achieved to date, and cost are reasonable and necessary.

31The applicant submits that the respondents EOB dated April 26, 2019 denying this disputed treatment plan is incorrect because the stated reason is incorrect. The EOB states that there are no pre-existing conditions described. The applicant submits that the applicant clearly had pre-existing back and knee injuries from the 2016 accident and therefore the MIG should not be applied.

32I have already found that the applicant has not established he has a pre-existing medical condition from the 2016 accident. As a result, the applicant's argument that the respondent's denial is based on an incorrect determination is moot.

Is the Treatment Plan for $2,000.00 For Attendant Care Assessment and In-Home Assessment Reasonable and Necessary?

33I find on the evidence before me that this disputed treatment plan is not reasonable and necessary. Although Daljeet Johal, applicant's occupational therapist, indicates that the applicant's household activities are significantly impaired by pain, the injuries described in this treatment plan are sprain and strain type injuries, headache "other sleep disorders and other anxiety disorders".

34I have already found that the sprain and strain type physical injuries are minor. There is nothing in the records of Dr. Satkunananthan or any of the applicant's other physicians that any of these non-physical injuries are significant enough to warrant this proposed attendant care assessment and in-home assessment or that these non-physical injuries resulted from the accident. As a result, the goals, treatment proposed, and cost of this disputed treatment plan are not reasonable and necessary.

35Again, the applicant submits that the respondents EOB dated December 7, 2018 denying this disputed treatment plan is incorrect because it states incorrectly that there are no pre-existing conditions. The applicant submits that the applicant clearly had pre-existing back and knee injuries from the 2016 accident. Again, I have already found that the applicant has not established he has a pre-existing medical condition from the 2016 accident. As a result, the applicant's argument that the respondent's denial is based on an incorrect determination is moot.

Is the Treatment Plan for $2,000.00 For Mental Health/Psychological Assessment Reasonable and Necessary?

36I find on the evidence before me that this disputed treatment plan is not reasonable and necessary. There is no indication in the records of Dr. Satkunananthan or any of the applicant's other physicians that the applicant suffered any mental health or psychological injuries significant enough to warrant this proposed mental health assessment/psychological assessment or that these alleged injuries resulted from the accident.

37As a result, the goals, treatment proposed, and cost of this disputed treatment plan are not reasonable and necessary.

38The applicant submits that the respondents December 18, 2018 EOB should have informed the applicant that additional treatment may be available if he has a psychological condition. Having reviewed this EOB, I find that it correctly notes that the applicant may be eligible for additional treatment because of a documented, pre-existing medical condition but does not mention psychological conditions. In this particular case, there was at the time of the EOB up to and including this hearing, any medical evidence to establish that the applicant had been diagnosed with a psychological impairment as a result of the accident. I find no deficiency in the EOB as a result.

Award

39Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that there was no payment unreasonably withheld or delayed.

40Although the applicant also argues that respondent failed to pay an approved OCF-23 of $1,216.00, the respondent has demonstrated that this account was paid on July 5, 2018. For these reasons, there is no award.

Interest

41As no benefits are payable, no interest is payable.

ORDER

42For the reasons outlined above, I find that the applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to the disputed balance of the physiotherapy treatment plan submitted November 7, 2018 or any of the three other treatment plans. The issue of transportation costs is not before me. There is no award. There is no interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3The Tribunal's May 27, 2020 Order confirms the applicant withdrew this issue at the case conference.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.