Licence Appeal Tribunal
Released Date: 05/07/2021
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:
Ranbir Gill
Applicant
and
Travelers Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Tanial Lanteigne, Paralegal
For the Respondent:
Krista Groen, Counsel
HEARD:
Via Written Submissions
OVERVIEW
1The applicant was involved in a motor vehicle accident on February 8, 2018 and sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 20101 (the “Schedule”).
2The respondent denied the applicant’s medical and rehabilitation benefits based on its determination that the Minor Injury Guideline (“MIG”) applied to the treatment of his accident-related injuries. The applicant then applied to the Licence Appeal Tribunal (the “Tribunal”) for the resolution of the dispute.
ISSUES TO BE DECIDED
3The issues to be determined in this hearing are:
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 MIG.
If the applicant’s injuries are not in the MIG, then, is the applicant entitled to the assessments or services recommended by Midland Wellness Centre, as follows:
a. $1,300.00 for physiotherapy services, in a treatment plan (plan) dated July 10, 2018;
b. $2,443.80 for physiotherapy services, in a plan dated August 29, 2018;
c. $2,148.20 for physiotherapy services, in a plan dated August 29, 2018;
d. $2,000.40 for chiropractic services, in a plan dated January 15, 2019;
e. $1,995.33 for a psychological assessment, in a plan dated January, 2019; and
f. $3,641.09 for psychological services, in a plan dated August 30, 2019?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not met his onus to show that he should be removed from the MIG due to his injuries from the accident falling outside the definition minor as per the Schedule. As such the applicant is not entitled to further medical and rehabilitation benefits and is therefore not entitled to the treatment plans in dispute. As there are no further benefits owing to the applicant there is no entitlement to interest.
ANALYSIS
The MIG
5The 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 “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). The jurisprudence has established that chronic pain falls outside of the definition of minor injury and that psychological injuries and concussions are not part of the definition of minor injury. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
6The applicant bears the onus of establishing, on a balance of probabilities, his entitlement to coverage beyond the $3,500 cap for minor injuries.
7The applicant submits that due to his injuries and pre-existing medical conditions, documented by his healthcare provider prior to the subject accident, he cannot be treated within the MIG as the accident exacerbated multiple health issues, and this also prevents him from being able to effectively recover if he were to be confined to the MIG.
8Furthermore, the applicant submits that his chronic and continuing nature of his health condition and injuries warrants his removal from the monetary limit of the MIG.
9Lastly the applicant submits that the has psychological injuries as a result of the accident thereby removing him from the confines of the MIG.
10The respondent points to the family doctor noting a concussion and submits that despite the words “mild concussion” being used by the family doctor that the applicant did not sustain a concussion and therefore he remains within the MIG.
Does the applicant have chronic pain?
11It has been accepted that chronic pain resulting from accident related injuries fall outside of the definition of minor injury and are not subject to the confines of the MIG. The onus remains on the applicant to show he has chronic pain and the applicant has not met this onus.
12The evidence that the applicant relies on for his position that he has chronic pain as a result of the injuries sustained in the accident is not compelling. The applicant’s first post-accident medical visit is on February 10, 2018, two days following the accident. The decoded OHIP summary confirms that the next visit with any healthcare practitioner is over 2 years from the date of the accident on June 24, 2020. There are no records indicating ongoing pain complaints let alone chronic pain as a result of accident related injuries and there are no medical records between February 10, 2018 and June 24, 2020 from any medical practitioners.
13The respondent points out that in the span of approximately 2.5 years following the subject accident, the applicant visited his family physician on only the one occasion on February 10, 2018. During that single occasion, the family doctor, Dr. Ramprasad, diagnosed the applicant with a sprain of the left shoulder and neck, both of which are minor physical injuries. The applicant’s cervical spine x-ray dated February 10, 2018, revealed a normal examination. The applicant’s physiotherapist at Midland Wellness Centre specifically noted the following injuries in the OCF-3 of April 25, 2018 as whiplash, headache, and sprains and strains of the shoulder joint, thoracic spine and lumbar spine. The respondent submits that all these injuries are minor as defined by the MIG.
14The above position of the respondent is supported by the evidence and therefore accepted by me. The applicant has not met his onus to show that the minor injuries, confirmed in the paragraph above, have evolved into chronic pain.
Does the applicant have a pre-existing medical condition?
15The applicant argues that he has a pre-existing medical condition, namely injuries from a previous motor vehicle accident of March 30, 2017, that prevent maximal medical recovery if remains subjected to the MIG.
16As per section 18(2), the applicant may escape the MIG if he has compelling evidence from his health practitioner that he has pre-existing medical conditions and that the limits in the MIG will prevent him from achieving maximal recovery from the minor injury if he is subject to the MIG limits.
17The applicant points to no evidence of a pre-existing medical condition that would prevent maximal recovery from his minor injuries. There is no compelling evidence from a health practitioner noting medical conditions arising from the 2017 motor vehicle accident that continued to persist. The applicant points only to the disability certificate of March 30, 2017 and a note of April 7, 2017 indicating neck strain. This is not compelling evidence of a pre-existing medical condition.
18Further, there is no evidence that shows that the applicant is prevented from achieving maximal recovery from his minor injuries, sustained in the subject accident, due to the injuries sustained in the earlier accident of March 2017. The applicant submits that the note of November 27, 2020 of Dr. Anantharajah supports his position that he is prevented from maximal medical recovery however this is not what the note of Dr. Anantharajah states and this note does not provide an opinion or evidence that the applicant is prevented from achieving maximal recovery if confined to the MIG. The applicant points to no other evidence in support of his position.
19Therefore, the applicant has not provided compelling evidence that he has a pre-existing medical condition that prevents maximal medical recovery if he is subject to the MIG.
Does the applicant have psychological injuries?
20The applicant submits that he has psychological injuries as a result of the accident and therefore he should be removed from the MIG as psychological injuries fall outside the definition of minor injury under the Schedule. The applicant relies on one report of Mila Popova of August 30, 2019 who diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood. Ms. Popova relayed that this diagnosis was a result of the accident.
21The respondent conducted its own insurer’s examination (IE) with Dr. Mandel, psychologist, on April 10, 2019. Dr. Mandel noted that the applicant reported to him as follows: “Mr. Gill reports that he is working part time, planning a wedding, spending time with family, watching television, time on the tablet or phone, volunteers at temple weekly, exercises at home, handling light chores, driving, spending time with friends, going out for a coffee, and travel to a family wedding in India in November for a week.” Dr. Mandel confirmed that there are no psychological injuries as a result of the accident.
22I am not persuaded by the report of Ms. Popova as it is based only on the self-reporting of the applicant. The applicant reports to Ms. Popova that his psychological injuries are as a result of the subject accident. Ms. Popova reviews no documents, makes no mention of the fact that the applicant sought no treatment or made no complaints of any psychological issues for 1.5 years since the accident. Ms. Popova does testing that indicates moderate to mild anxiety symptoms yet rates it as severe without an explanation. Further the report of Ms. Popova is inconsistent with the evidence that clearly shows that following the accident the applicant reported no psychological or emotional issues. The first and only evidence of any psychological or emotional issues is this report of Ms. Popova of August 30, 2019. Without any corroborating evidence and on a balance of probabilities I find that the applicant did not sustain any psychological injuries as a result of the accident.
Did the applicant sustain a concussion?
23The respondent and the Tribunal note that on February 10, 2018, Dr. Ramprasad, the family doctor makes a diagnosis of mild concussion. A concussion does not form part of the definition of minor injury and therefore if the Tribunal accepts that the applicant sustained a concussion as a result of the accident, he may then be removed from the MIG.
24The respondent points to the evidence that on February 10, 2018, the only post-accident visit to Dr. Ramprasad, the applicant denied a head injury or loss of consciousness following the accident. The applicant did not report any nausea, vomiting or vision disturbances. The respondent as well points to the fact that there are no notes or visits and certainly no follow up with respect to an alleged concussion. The respondent therefore argues there was no concussion as a result of the accident.
25The applicant makes no submissions or argument regarding this diagnosis and filed no reply submissions addressing the notation of concussion or disagreeing with the respondent’s submissions.
26I am not persuaded that the applicant has a concussion as result of the accident as the evidence does not support this diagnosis. The OCF-3 that is submitted on the same day as Dr. Ramprasad’s note of February 10, 2018 makes no mention of a concussion, and there is no mention of any accident related concussive symptoms. The evidence shows that the applicant did not follow up with any medical professionals to address any alleged concussion symptoms, nor did Dr. Ramprasad refer the applicant to a neurologist or any other doctors. Also, Dr. Ramprasad in his note of February 10, 2018 ordered a follow up in 1-2 weeks as needed but did not order or even address post-concussive protocols. The applicant as noted above never followed up with Dr. Ramprasad or any other doctor regarding any concussive or accident related symptoms. The applicant provides no evidence that shows that he has concussive symptoms in the weeks, months or years following the accident. The only other notation of a concussion is in the report of Ms. Popova wherein the applicant is reporting to Ms. Popova that he had a concussion in the accident.
27Therefore, the applicant has not shown on a balance that he sustained a concussion as a result of the accident.
Conclusion: Applicant remains in the MIG
28The applicant has not met his onus to show that he should escape the confines of the MIG due to his injuries falling outside of the definition of minor injury. The applicant has not proven on a balance of probabilities that he has chronic pain, psychological injuries and/or a concussion as a result of the accident. Further, the applicant has not proven on a balance that he has a pre-existing medical condition that will prevent maximal recovery from his minor injuries if he is subjected to the MIG.
Disputed Plans and Interest
29The applicant and respondent agree that the applicant has exhausted the medical and rehabilitation benefits available to him under the MIG. I need not consider if the disputed treatment plans are reasonable and necessary as the applicant is not entitled to further medical and rehabilitation benefits. As no benefits are owing there is no entitlement to interest.
ORDER
30The applicant’s appeal is dismissed in its entirety.
Released: May 7, 2021
Monica Chakravarti
Adjudicator