Release date: 08/18/2021
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:
Mebby Mengele
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Sevda Guliyeva
For the Respondent:
Shane Baker
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on April 27, 2018, and sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Certas 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:
a. 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?
b. Is the applicant entitled to the balance of $126.80 for chiropractic services, recommended by Mediwise Health Care Centre in a treatment plan (OCF-18) dated June 30, 2018?
c. Is the applicant entitled to $3,805.76 for chiropractic services, recommended by Mediwise Health Care Centre in a treatment plan (OCF-18) dated August 15, 2018?
d. Is the applicant entitled to $1,920.53 for a Psychological Assessment, recommended by Mediwise Health Care Centre in a treatment plan (OCF-18) dated August 22, 2018?
e. Is the applicant entitled to interest on any overdue payment of benefits?
result
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The OCF-18s in dispute are not reasonable and necessary and no interest is payable.
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 his physical and psychological impairments warrant removal from and treatment beyond the MIG. To this end, he relies on various clinical notes and treatment records from St. Michael’s Hospital and his provider Mediwise Healthcare where he underwent treatment from May 1, 2018 to September 8, 2018. He also relies on a Disability Certificate (“OCF-3”) from his chiropractor, Dr. Yu, and a psychological status evaluation report dated May 17, 2018 from Dr. Mrahar, provisionally diagnosing him with adjustment disorder.
6In response, Certas submits that the applicant sustained predominantly minor injuries as a result of the accident and has not furnished objective medical information to the contrary to meet his burden. Certas submits that the applicant did not seek medical attention after the accident, returned to work on April 30, 2018, has provided no evidence that his impairments affected his university studies, reported improvement in the months following the accident, did not return for accident-related follow ups after August 30, 2018 and has not attended for treatment since September 8, 2018. Further, Certas argues that the applicant has never been diagnosed with any non-minor physical injuries like a fracture, tear, concussion or chronic pain disorder. It asserts that Dr. Yu is a chiropractor who cannot diagnose psychological impairments and Dr. Mrahar’s provisional diagnosis was not based on any testing. Finally, it submits that the applicant has not reported psychological symptoms on a continuous basis and has not been prescribed any medication or treatment for same warranting psychological intervention.
7I agree with Certas and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The actual physical injuries identified in the OCF-3 and clinical records all fall squarely within the definition of a minor injury. Of the 23 impairments identified by Dr. Yu in the OCF-3, it is unclear which of the physical impairments would fall outside of the definition under s. 3(1) of the Schedule. Further, where the applicant has not provided evidence that he has made any accident-related complaints or undergone treatment for same since September 2018 and where there are no diagnostic imaging reports to demonstrate that he sustained a non-minor injury, I find it clear that he sustained soft-tissue impairments as a result of the accident. A MIG discharge form from a provider, absent other objective corroborating medical evidence, is not sufficient for removal. The applicant has fallen well short of meeting his burden on this ground.
8An applicant may also escape the MIG if they sustain 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). Here, the applicant points to the impairments listed in the OCF-3 and the provisional diagnosis of Adjustment Disorder made by Dr. Mrahar, in a letter appended to the OCF-18 seeking a psychological assessment, as evidence that he sustained a psychological impairment warranting removal from the MIG.
9With respect, I find the evidence does not support this position. There is a dearth of psychological or emotional complaints in the remaining medical file, no referrals from an objective source and no prescriptions for medication. The OCF-3 was completed by Dr. Yu, a chiropractor, so I agree that the diagnosis of psychological and emotional impairments is beyond the scope of his practice. I also agree with Certas that the descriptions—nervousness, malaise, state of emotional shock and stress, unspecified—are somewhat generic and, again, not supported elsewhere. For instance, the August 30, 2018 hospital record that follows both Dr. Mrahar’s letter and the OCF-3 states that the applicant was “doing well” and had “no mental health concerns at this point.” It is difficult to see why an assessment would be needed.
10It does not appear that the applicant ever incurred the proposed assessment in the three years since it was submitted, despite also having access to psychological services under his collateral benefits plan. In any event, the Tribunal has consistently found that pre-screen reports attached to treatment and assessment plans, in the absence of objective, corroborating or contemporaneous evidence to support same, are not sufficient for removal from the MIG and especially so where the pre-screen was seemingly not conducted by Dr. Mrahar and was not based on any objective testing but only on the applicant’s self-reporting. Where the applicant self-reported no mental health concerns some two months later, it is difficult to find that he sustained a psychological impairment as a result of the accident that justifies removal from the MIG over three years later.
11For these reasons, I find the applicant has not met his burden of demonstrating that he sustained impairments that warrant removal from the MIG as a result of the subject accident.
Are the treatment and assessment 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 that the limits of the MIG have been exhausted. Accordingly, an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
CONCLUSION
13The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The OCF-18s in dispute are not reasonable and necessary and no interest is payable.
Date of Issue: August 18, 2021
Jesse A. Boyce
Vice-Chair
Footnotes
- O. Reg. 34/10, as amended.