Released Date: 06/03/2021
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:
Mohammad Numeri
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Christoper Deeley, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on January 17, 2018, and sought various benefits from the respondent, Dominion, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Dominion denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG?
ii. Is the applicant entitled to $1,299.98 for chiropractic services recommended byActiva Clinics in a treatment plan dated April 17, 2019?
iii. Is the applicant entitled to $1,328.10 for chiropractic services recommended by Activa Clinics in a treatment plan dated February 14, 2020?
iv. Is the applicant entitled to the cost of an examination in the amount of $2,520.00 for an Orthopaedic Assessment, recommended by All Health Medical in a treatment plan dated April 1, 2020?
v. Is the applicant entitled to an award under s. 10 of O. Reg. 664 because Dominion unreasonably withheld or delayed the payment of benefits?
vi. Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. While he has not exhausted the funding available under the MIG, Dominion has approved the unused amounts up to the MIG limit. Accordingly, he is not entitled to payment for the treatment plans in dispute as they are not reasonable and necessary. Interest and a s.10 award do not apply.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that he should be removed from the MIG because he continued to seek treatment two years post-accident. He submits that following the accident he has continued to work but has not enjoyed his other activities of daily life. He relies on the OCF-18s in dispute as evidence of his injuries, identified as: WAD-2, sprain and strain of SI joint, lumbar spine, thoracic spine, subluxation complex and “problems related to certain psychosocial circumstances.” Further, he points to the treatment records from Activa Clinic, the records and letter from his family physician Dr. Sheriff and the notes of Dr. Al-Titanchy as evidence of his need for ongoing treatment and “potential need for a chronic pain program”, warranting removal from and treatment beyond the MIG.
6In response, Dominion asserts that the applicant has not exhausted the MIG limits and has provided no viable evidence of an injury outside of the MIG. It submits that the medical records in evidence demonstrate sprain and strain injuries that are minor, that there is no medical opinion that meets the requirements of s. 18(2), there is no diagnosis of chronic pain and that there is no evidence of a psychological injury.
7I agree with Dominion and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The applicant’s theory for removal from the MIG is somewhat unclear. However, the actual physical injuries are all consistently identified as sprain and strain injuries that fall clearly within the MIG. Even the alleged subluxation complex is captured within the definition under the Schedule. There is no evidence of fractures or tears and the applicant has yet to exhaust the funding available to him under the MIG. He did not attend for treatment between May 23, 2018 and February 14, 2020. When he did return for three sessions in February 2020, there is no indication it was for accident-related impairments.
8With regard to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that will preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant did not point to any medical opinion speaking to a pre-existing condition that would preclude his recovery under the MIG, as required by s. 18(2).
9Next, the Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, the applicant seemingly relies on a November 11, 2020 letter from Dr. Sheriff as evidence of a “potential” need for a chronic pain program and his subjective reports of pain. However, the letter in evidence, which was prompted by applicant’s counsel, refers to myofascial strain and sprain injuries, x-rays of the spine that showed “no pathology” and, critically, does not diagnose chronic pain or chronic pain syndrome. Instead, Dr. Sheriff’s response to counsel’s query about potential treatment at a chronic pain facility is that “Its one option if there is no progression or reduction of the S/S.” Suffice to say, this is not a diagnosis of chronic pain or a referral to a chronic pain clinic, as alleged. Indeed, while the applicant may have some pain, where the applicant has continued to work post-accident, has not exhausted his MIG funding and has not demonstrated functional impairment, it is difficult to find how he would have chronic pain warranting removal from the MIG.
10Finally, an applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). In submissions, the applicant submits he sustained psychological impairments but did not direct the Tribunal to medical evidence or a report to support this assertion and there is no evidence that he has sought counselling for same or has even self-reported emotional or psychological concerns to his family physician post-accident.
11Accordingly, I find the applicant has fallen well-short of meeting his burden of demonstrating on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
12Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have not been exhausted despite being approved up to the MIG limits by Dominion. Therefore, an analysis of whether the treatment plans in dispute are reasonable and necessary in their entirety is not required.
13However, as Dominion submits, the applicant has $386.88 in unused funds remaining for chiropractic services from the April 17, 2019 treatment plan, identified as issue (ii) in this hearing, that was approved on July 18, 2019 that, if incurred by the applicant, would exhaust the MIG limits. The applicant did not refute this account despite having the benefit of reply. Accordingly, the applicant is not entitled to payment for any of the remaining treatment plans in dispute and no interest is payable under s. 51, as no benefits are overdue.
Section 10 Award
14The applicant also sought an award pursuant to s. 10 of O. Reg. 664, arguing that Dominion has acted in bad faith in not reviewing all of his medical documentation and by keeping him within the MIG. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute it if determines that an insurer unreasonably withheld or delayed the payment of benefits. I find an award is not appropriate. As the applicant has not demonstrated that removal from the MIG is warranted, and where he still has funding available within the MIG limits, it cannot be said that Dominion unreasonably withheld or delayed the payment of benefits. In any event, as no benefits are overdue, the Tribunal has no basis on which to grant an award.
CONCLUSION
15The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. While he has not exhausted the funding available under the MIG, Dominion has approved the unused amounts up to the MIG limit. Accordingly, he is not entitled to payment for the treatment plans in dispute as they are not reasonable and necessary. Interest and a s.10 award do not apply.
Released: June 3, 2021
__________________________
Jesse A. Boyce
Vice-Chair
Footnotes
- O. Reg. 34/10, as amended.