Released Date: 04/20/2021
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:
Costantinos Kistenoglu
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Danielle Ralph, Counsel
HEARD:
Via Written Submissions
OVERVIEW
1The applicant was involved in a motor vehicle accident on October 7, 2019 and sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101(“Schedule”).
2The respondent denied the medical and rehabilitation benefits and took the position that the applicant’s accident-related injuries were minor as defined in the Schedule and therefore subject to the confines of the Minor Injury Guidelines (the “MIG”). The applicant disagreed with the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES TO BE DECIDED:
3The issues to be decided in this hearing are:
i. 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?
ii. If the applicant’s injuries are not considered predominantly minor,
a) Is the applicant entitled to $3,808.40 for physiotherapy services, recommended by Alex Muir Wellness Centre submitted to the respondent on October 16, 2019?
b) Is the applicant entitled to $2,538.16 for physiotherapy services, recommended by Alex Muir Wellness Centre, submitted to the respondent on January 16, 2020?
c) Is the applicant entitled to $2,125.00 for a psychological assessment, recommended by Leon Steiner in a treatment plan submitted on October 30, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant has not met his onus to show that his injuries are not minor as defined in the Schedule. As such, the applicant is not entitled to any further medical and rehabilitation benefits and therefore, not entitled to the disputed treatment plans. Further there is no award and there is no interest as no benefits were withheld and no benefits are owing.
ANALYSIS
5The onus is on the applicant to prove on a balance of probabilities that he did not sustain predominately minor injuries as a result of the accident.2
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG.
7Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder (WAD), contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
8Section 3(1) defines “Whiplash associated disorder” means a whiplash injury that (a) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and (b) does not exhibit a fracture in or dislocation of the spine; (“entorse cervicale”)”.
9A psychological injury does not fall within the definition of minor injury.
10Section 15(1) of the Schedule provides that, subject to Section 18, the insurer shall pay for all reasonable and necessary medical expenses incurred by or on behalf of the insured person as a result of the accident.
11The applicant submits that his injuries fall outside of the definition of “minor injury” under the Schedule, because as a result of the accident, he sustained WAD II with radiculopathy and psychological injuries. Thus, the applicant submits he should not be subject to the confines of the MIG.
12The respondent submits the applicant has not provided reliable and compelling medical evidence that he sustained injuries outside of the MIG. The respondent submits that the applicant’s evidence with respect to his radiculopathy is based on one treatment plan and not on any treating doctor’s clinical notes or records. Further, the respondent submits that the evidence with respect to the psychological injuries is unconvincing and unreliable.
13I find that the applicant has not met his onus to show that his injuries are not minor as defined under the Schedule.
14The applicant relies on the disability certificate dated June 28, 2016, two of the disputed treatment plans from October of 2019 and January of 2020, one additional treatment plan again dated October 31, 2020, and the clinical notes and records of the physiotherapy clinic. The applicant has provided no reports or treating doctor’s clinical notes and records that show radiculopathy or any physical injuries that would fall outside the definition of minor injury. The radiculopathy that the applicant is relying upon is noted in one treatment plan dated October 31, 2020 and simply states “radiculopathy”. It does not relate to a WAD injury as submitted by the applicant, and there is no evidence that it is related to the accident as this note of radiculopathy is made three years following the accident, and there are no records provided that would lead to a conclusion that this is a result of the accident. Further, the treatment plans of October 11, 2019 and January 16, 2020 all state that the WAD injury has musculoskeletal signs and no mention of radiculopathy or neurological signs.
15The clinical notes and records from the physiotherapy clinic confirms the applicant sought treatment for the three months following the accident. He then attended for two visits in October of 2019 and one visit in January of 2020. There are no medical records provided from either treating facilities or treating doctors between October of 2016 to October of 2019. The clinical notes and records of the physiotherapy clinic shows that the physical injuries sustained by the applicant are strain injuries with pain.
16There is no evidence to corroborate the injuries listed in the disability certificate and treatment plans, as there are no medical records provided from treating doctors or clinics for three years that would lead to a conclusion that the applicant’s complaint in 2019 and 2020 are accident related. Therefore, I find that the applicant has not provided evidence that his physical injuries would remove him from the definition of “minor injury” under the Schedule.
17With respect to the applicant’s psychological injuries, the applicant tenders as evidence the pre-screening report of the psychologist, Dr Steiner, of October 28, 2019. Dr, Steiner makes diagnosis of adjustment disorder, mixed anxiety and depression and specific phobia. This diagnosis is based only on the self-reporting of the applicant and the only document reviewed is the disability certificate of June 28, 2016. I find that this report is not persuasive. The pre-screening took place on October 28, 2019, three plus years post-accident. There are no records showing that the applicant had made any complaints of psychological injuries within those three years post-accident that would then lead to a conclusion that his psychological complaints in the pre-screen report are as a result of the accident. Further, the assessor who conducted the pre-screen had no information regarding the applicant’s pre-accident psychological status, his post-accident complaints or injuries, no information or testing to make the diagnosis, and the assessor provides no information as to how he reached the diagnosis and what it is based on.
18Therefore, I find that the applicant has not shown that he sustained psychological injuries as a result of the accident, and therefore, the applicant remains within the confines of the MIG.
19With respect to the treatment plans in dispute, as noted in the letter dated October 22, 2019 to the applicant, the maximum amount of $3500.00 for treatment has been exhausted and therefore, it is unnecessary to consider the disputed treatment plans as there are no funds available for the treatment.
20The applicant raises the issue that the respondent provided “boilerplate statements” without any meaningful detail to deny the treatment plans. The applicant does not point the Tribunal to any evidence to support this, nor does the applicant provide the letters denying the treatment plan.
21The respondent submits that it provided proper notices of denial in accordance with section 38 of the Schedule. Specifically, the respondent submits, and the evidence shows that the respondent provided the following medical reasons for the denial of the two disputed treatment plans for physical therapy as follows:
I reviewed your list of injuries and see no pre-existing conditions described. In comparing your injuries to the criteria in the Minor Injury Guideline. I have concluded your injuries are minor and fall within the Guideline. 18(1) of the Statutory Accident Benefit Schedule sets a policy limit for minor injuries. I am unable to approved the recommendation because I have approved the maximum amount.
22Further, the respondent submits and the evidence shows that the respondent provided the following reasons for the denial of the psychological assessment:
I reviewed your list of injuries and compared them to the criteria in the Minor Injury Guideline. I have concluded your injuries are minor and fall within the Guideline. I have no medical documentation to support the need for the psychological assessment. Please provide clinical notes and records from your family doctor for my review and consideration.
23The applicant does not provide any information or submission as to what or how the above denials are boilerplate, or how the respondent failed its obligation pursuant to section 38, to provide reasons for the denials of the treatment plan in a manner that was clear and detailed enough for the applicant to understand. Therefore, I find that the respondent provided proper denials of the treatment plans in accordance with the Schedule.
24The applicant is seeking an award pursuant to section 10 of O.Reg. 664. Section 10 of this Regulation provides the Tribunal with the ability to make an award when it finds that an insurer has unreasonably withheld or delayed a benefit. The onus is on the applicant to show the unreasonableness of the insurer. The applicant has not done so because, the applicant points to no information or evidence that the respondent acted unreasonable. Further as no benefits are owing it cannot be said that the respondent withheld or delayed benefits.
25Similarly, the applicant is seeking interest and again, as no benefits are owed there can be no order for interest.
ORDER
26The applicant’s appeal is dismissed in its entirety.
Released: April 20, 2021
Monica Chakravarti
Adjudicator
Footnotes
- O.Reg. 34/10, as amended.
- Scarlett v. Belair Insurance, 2015 ONSC 3635.