Release date: 2021/03/09
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:
David Burns
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lyndra Griffith
APPEARANCES:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Aly Pabani, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant, David Burns, was involved in an automobile accident on December 8, 2015. David Burns was parked in his own vehicle, while in a parking lot when another vehicle struck his vehicle on the rear driver’s side. David Burns sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 David Burns was denied certain benefits by the respondent, The Dominion of Canada General Insurance Company (“Dominion”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute .
2Dominion denied David Burns’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline2 (the “MIG”).
3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. David Burns argues that his injuries take him out of the limit set by the MIG. Based on treatment that David Burns has received to date, the MIG limit has been exhausted.
ISSUES
4The issues I am asked to determine are:
a. Did David Burns sustain predominantly minor injuries as defined under the Schedule?
5If David Burns did not sustain predominantly minor injuries, then I must determine:
a. Is David Burns entitled to the cost of an examination in the amount of $2,260.00 for a psychological assessment recommended by psychologist Dr. Cernovsky, in a treatment plan dated November 13, 2017?
b. Is David Burns entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
Result
6Based on the evidence before me, I find that David Burns’s accident related injuries meet the definition of “minor injury” under the Schedule. He is therefore subject to treatment within the MIG limit and is subject to the $3,500.00 funding limit.
7As a result, David Burns is not entitled to interest.
LAW and ANALYSIS
Applicability of the Minor Injury Guideline
8The MIG establishes a framework for the treatment of minor injuries. The term “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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in s. 3(1).
9Furthermore, s. 18(1) of the Schedule states that the sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 in accordance with the Minor Injury Guideline.
10The onus is on the applicant to show on a balance of probabilities that his accident-related impairments justify removal from the MIG.3
11David Burns argues that his injuries go beyond the definition of “minor injury” because he sustained physical and psychological impairments which remove him from the MIG.
Did David Burns sustain physical injuries that remove him from the MIG?
12Although David Burns has provided medical evidence confirming he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Dominion confirms that David Burns’ physical injuries fall within the MIG.
13My finding that David Burns’ physical injuries fall within the MIG is supported by the following evidence:
(i) David Burns reported the automobile accident to his family physician, Dr. Berenbaum on December 8, 2015. Dr. Berenbaum’s assessment of David Burns was "MVA with neck strain".
(ii) David Burns followed up with Dr. Berenbaum on December 17, 2015 regarding complaints of headaches, ringing in the right ear, back pain and difficulty equalizing the pressure in his ears. Dr. Berenbaum diagnosed David Burns with residual musculoskeletal strains.
(iii) David Burns attended Dr. Berenbaum’s office on January 7, 2016 with complaints of occasional headaches, ringing in his ears without interfering with his hearing and with some concerns about equalization his pressure. David Burns also complained of occasional night sweats.
(iv) On March 7, 2016, upon returning from a vacation to Mexico, David Burns presented to Dr. Berenbaum with complaints of stiffness in his neck and pain between his shoulders.
(v) On March 25, 2016, David Burns consulted ear, nose and throat doctor, Dr. James Haight, with symptoms related to tinnitus and equalizing his ears. Dr. Haight reported that the tinnitus occurs briefly and only occasionally, and it does not keep him awake. It was noted that when David Burns is at high altitude, like in the mountains in Mexico, he is able to equalize his ears, but the closer he gets to sea level, the more difficult it becomes.
(vi) David Burns attended the Cleveland Clinic on October 13, 2016, five days after suffering an injury while playing touch football in which he sustained a 3.5 cm tear in his right calf muscle. On November 28, 2016 he attended the clinic again for a follow-up. David Burns was able to walk for up to 2 hours but was still unable to return to work due to the injury.
(vii) On December 12, 2016, David Burns attended Dr. Berenbaum’s office for a follow-up regarding the injury to his calf.
(viii) On April 13, 2017, David Burns attended Dr. Berenbaum’s office because he slipped and fell out of a vehicle while at work at the end of March or early April 2017 (the exact date is unclear from the medical records). As a result of the fall, he developed a reoccurrence of lower back pain, straining his lower back and left shoulder. David Burns claimed that his left shoulder injury took over a year to resolve. Dr. Berenbaum referred D. B. to physiotherapy. On May 9, 2017, he followed up regarding his injury sustained in the slip and fall.
(ix) On August 8, 2017, David Burns attended Dr. Berenbaum’s office and reported a new injury to his right foot after he struck his toe (4th digit) four days prior in a football game.
(x) On October 28, 2018 David Burns was seen by Dr. Gooden, (Otolaryngology/Head and Neck Surgery) for the symptoms in his ears. He reported occasional pressure in his ears, was unsure whether his tinnitus was bilateral, had no sleep disturbances and felt that message treatments resolve his tinnitus. Dr. Gooden diagnosed the applicant with right asymmetric hearing loss and right asymmetric tinnitus.
14I find that the medical evidence submitted by David Burns confirms that his physical injuries are predominantly minor and fall within the definition of “minor injury” in the Schedule. David Burns was able to resume his activities, he was able to travel to Mexico and play touch football in 2016. The medical records of Dr. Berenbaum indicate that when David Burns sustained injuries from a slip and fall, he had a recurrence of back and shoulder pain however his automobile accident related injuries were resolved. David Burns has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.
Did David Burns sustain psychological injuries that remove him from the MIG?
15For the reasons that follow, I find that the evidence does not support the conclusion that David Burns’ psychological impairments remove him from the MIG.
(i) Psychologist Dr. Cernovsky noted in the treatment plan (“OCF-18”) in dispute, that David Burns suffers from pain in his neck, back, left shoulder, right hip, knee, feet in addition to muscle spasms in his right calf. It was also noted that since the automobile accident David Burns suffers from headaches and has limited sleep as a result of his pain. Dr. Cernovsky commented that the quality of his life has deteriorated since the automobile accident due to his physical injuries and psychological symptoms. Dr. Cernovsky indicated that his symptoms limit him from engaging in activities he used to enjoy, that he suffers from anxiety, depression, and irritability. It was noted that David Burns gained close to 20 lbs and he finds his present situation excessively stressful. David Burns is described as overly alert, anxious, tense, worried, and nervous as a driver or passenger. Dr. Cernovsky’s found that an assessment was warranted to further investigate these psychological factors.
(ii) In its denial of the OCF-18, Dominion determined that the MIG applied to David Burns’ injuries and that the OCF-18 was not reasonable and necessary. Dominion advised David Burns that the practitioner had failed to provide concrete evidence that his complaints were accident related. Dominion noted that the available clinical notes and records indicate that his psychological complaints are work related. Dominion further noted that David Burns’ injury to his right calf was a pre-existing condition which was not aggravated by the accident and the injury to his right toe occurred during a football game in August of 2017. Dominion noted that this is contradictory to the notation of being socially withdrawn. Dominion stated that the available medical records indicate that there was a re-injury of his lower back and new injury of the left shoulder which happened at work in April 2017. Finally, Dominion found that since David Burns had not sought any psychological intervention since the accident, without compelling medical evidence the OCF-18 was deemed inappropriate and not found to be accident related.
(iii) On May 9, 2017, David Burns saw Dr. Berenbaum again following his slip and fall exiting a work vehicle on April 13, 2017. The clinical notes and records indicate that he had concerns about his mental health, however the complaints appear to be related aging and difficulties he was experiencing at work with his supervisor. David Burns was subsequently referred to psychotherapist Dr. Keshia Greene and attended therapy sessions in 2018 and 2019. Dr. Greene’s records did not mention the automobile accident, and only mentioned general and work -related stress.
(iv) On June 13, 2017 and June 21, 2017, David Burns attended Dr. Berenbaum’s office for a suspected tick bite following a trip to a cottage. David Burns reported to Dr. Berenbaum that he had been cutting the grass, cutting a tree and power washing the exterior of the cottage. There was no mention of being in any pain or psychological distress.
16Dominion argues that, to escape the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just symptomatology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically significant psychological distress, as a result of the motor vehicle accident4. I am persuaded by this decision. Apart from the comments noted in the OCF-18 in dispute, there is no other evidence of a diagnosed psychological condition that is related to the automobile accident. David Burns attended Dr. Berenbaum’s office on numerous occasions following the automobile accident but the records do not contain any accident related psychological complaints, recommendations for psychological intervention or prescriptions for a psychological condition. Furthermore, there is no compelling evidence of psychological impairments that would be sufficient for David Burns to be removed from the MIG.
17Apart from the comments noted in the OCF-18 in dispute, the medical records do not reveal any evidence of limited engagement in activities David Burns used to enjoy prior to the accident, limited sleep or any issues with driver or passenger anxiety. Finally, David Burns has had approximately three accidents that resulted in injuries after the subject automobile accident.
18The clinical notes and records indicate that David Burns has had post-accident emotional complaints however these complaints appear to be related to his work-related stress.
19Based on the evidence, David Burns has not met his onus to establish that he suffered a psychological impairment that would remove him from the MIG limit.
CONCLUSION
20For the reasons outlined above, I find that David Burns has not demonstrated that his accident-related impairments warrant treatment beyond the MIG funding limit of $3,500.00. lt is the Tribunal's understanding that the limit under the MIG has been exhausted. Therefore, David Burns is not entitled to the disputed treatment plan.
21As no benefits are overdue, no interest is payable.
Date of Issue: March 9, 2021
Lyndra Griffith, Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para. 24.
- Y.W.C. v Allstate Canada, 2020 CanLII 34468 (ON LAT) at paras. 9 and 12.```