Release date: 04/26/2021
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:
Wen-Hua Yang
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Sheryl Patel, Legal Representative
For the Respondent:
Aly Pabani Legal Representative
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on May 18, 2019 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2The respondent determined the applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
Are the applicant’s injuries predominantly minor injuries as defined in section 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit in section18(1)?
Is the applicant entitled to a medical benefit in the amount of $3,696.50, less $3,281.21 approved by the respondent, for chiropractic treatment recommended by Dr. P. Somal, chiropractor, in a treatment plan dated May 21, 2019?
Is the applicant entitled to a medical benefit in the amount of $2,569.40 for physiotherapy treatment recommended by Dr. N. Bhowmik, chiropractor, in a treatment plan dated July 13, 2019?
Is the respondent liable to pay an award under section 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is unsuccessful on all issues.
BACKGROUND
5The applicant was the front-seat passenger in a vehicle which was struck from behind while stopped at a red light. No airbags deployed in the accident and the applicant required no medical attention at the scene of the collision. The applicant went to a walk-in clinic the next day and met with Dr. R. Atwal, family physician. Dr. Atwal examined the applicant and diagnosed him with contusions, anxiety, and insomnia and recommended physiotherapy. The applicant started physiotherapy treatment later that day, at Mackenzie Medical Rehabilitation Clinic (“Mackenzie”).
6On May 27, 2019, Mackenzie submitted a treatment and assessment plan to the respondent, dated May 21, 2019, on behalf of the applicant. The plan, listed as issue 2 above, proposed $3,696.50 in treatment. The respondent replied on May 29, 2019, and partly approved funding for the treatment plan, subject to the hourly rate prescribed by the Professional Services Guideline (“PSG”).1
7On July 25, 2019, the respondent wrote to the applicant and advised that it reviewed the available medical documents and believed that he sustained a minor injury. The letter confirmed the $3,500.00 funding limit and advised that the treatment plan response is amended to reflect the available balance provided under the MIG funding limit.
THE MINOR INJURY GUIDELINE
8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
10The applicant claims that the MIG and the funding limit should not apply because the respondent failed to comply with section 38(8) of the Schedule and because he has chronic pain and psychological injuries.
Failure to comply with [section 38(8)](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html#sec38subsec8_smooth) of the [Schedule](https://www.canlii.org/en/on/laws/regu/o-reg-34-10/latest/o-reg-34-10.html)
11Section 38(8) of the Schedule requires the respondent to reply to a treatment and assessment plan within 10 business days with the medical and all other reasons why it will not fund the proposed treatment. Further, the respondent must also advise the applicant that his injuries fall within the MIG, if it believes so. Pursuant to section 38(11), non-compliance with section 38(8) disentitles the respondent from taking the position that the MIG applies for that treatment plan and provides that the respondent shall pay for all goods and services incurred starting on the 11th business day and ending on the day the notice is cured.
12The applicant submits that the treatment plan dated May 21, 2019 was submitted on May 27, 2019 and replied to on July 25, 2019, contrary to the provisions in section 38(8) of the Schedule. He made no submissions with respect to the treatment plan dated July 13, 2019, but an account summary from Mackenzie shows it was submitted on July 15, 2019 and replied to on July 24, 2019. According to the applicant, he is entitled to both disputed treatment plans, regardless of what was incurred before the notice, because the respondent failed to provide notice within 10 business days and failed to provide an adequate medical reason for the denial.
13The respondent submits that the treatment plan was responded to on May 29, 2019, thus it complied with the timeliness provisions in section 38. The respondent further submits that the letter dated July 25, 2019 clearly indicates that the applicant’s injuries are within the MIG.
14Upon review of the evidence and submissions, I find that the respondent’s May 29, 2019 letter failed to refer to the MIG or provide a medical reason. The letter refers only to the PSG. However, the MIG deficiency was cured by the July 25, 2019 letter because that letter clearly states that it believes the applicant sustained a minor injury and is subject to the MIG. The July 25, 2019 letter also refers the applicant to the $3,500.00 funding limit provided by the MIG.
15Further to the May 21, 2019 treatment plan, the evidence shows that the respondent relied only on the PSG to deny funding for the plan. As a result, the respondent’s failure to refer to the MIG is inconsequential.
16In addition, section 15(2)(b) of the Schedule limits the respondent’s liability to pay medical benefits to no more than the maximum rate established under the PSG. In this case, the respondent’s letters dated May 29 and June 25, 2019 approved funding for the initial treatment sessions in accordance with the PSG. The applicant provides no evidence to the contrary and thus, there is no statutory entitlement to medical benefits in addition to those which have already been paid.
17I find no evidence to support the applicant’s claim that he is entitled to the July 13, 2019 treatment plan as a result of the respondent’s non-compliance with section 38 of the Schedule. He provides no reasons to support entitlement and the evidence shows that the plan was responded to within the requisite timeline.
Chronic Pain and Psychological Injury
18The applicant may be removed from the MIG, and no longer subject to the $3,500.00 funding limit on treatment, if he provides compelling medical evidence to show he sustained an injury which is not included in the minor injury definition.
19I find no evidence that the applicant suffers from chronic pain or is functionally impaired due to pain. The single clinical record from Dr. Atwal, made on the day following the accident, is not evidence of chronic pain. Likewise, the treatment records at Mackenzie fail to establish that the applicant suffers from chronic pain. The records show no evidence of a functional impairment, no overdependence on healthcare providers, and there is no evidence of any treatment or visit to any medical professional after November 9, 2019. Notably, the applicant was able to return to work at some time following the accident, further suggesting that he suffered no functional impairment due to chronic pain.
20I find no compelling medical evidence to show that the applicant sustained a psychological injury which would remove him from the MIG and the funding limit. Although Dr. Atwal’s single clinical note refers to anxiety and insomnia, there is no evidence that the recorded symptoms require any treatment or, at the least, further investigation. Further, the applicant makes no other reference to any record of a psychological injury in his medical record and a review of the records from Mackenzie show no signs of a psychological injury which would require treatment or investigation.
21Considering the above, I find that the applicant sustained a minor injury as defined by the Schedule and, as a result, is subject to the $3,500.00 funding limit provided by the MIG.
THE DISPUTED TREATMENT PLANS
22The parties agreed that the applicant exhausted the funds available to him pursuant to the MIG. Thus, an analysis on the disputed treatment plans is unnecessary.
INTEREST
23The applicant is not entitled to interest as no payments went overdue. Pursuant to section 51 of the Schedule, interest is payable if the respondent failed to pay a benefit within the timelines provided. No benefits were found payable and, as a result, no interest is owed.
AWARD
24The applicant may be entitled to an award if the respondent is found to have unreasonably withheld or delayed the payment of benefits. As noted above, the disputed treatment plans were approved according to the MIG and the PSG and, therefore, no payment was withheld or delayed.
CONCLUSION
25The applicant sustained a minor injury as a result of the accident. He has exhausted the funding provided by the MIG and is not entitled to any payment for the disputed treatment plans.
26The application is dismissed.
Released: April 26, 2021
Brian Norris, Adjudicator