Mohammed v. The Co-operators Gen. Ins. Co.
Release date: 09/24/2021
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:
Ummulkheir M. Mohammed
Applicant
and
The Co-Operators General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Clifford Singh, Counsel
For the Respondent:
Kathleen O’Hara, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on June 15, 2018, and sought benefits from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Co-Operators denied the benefit in dispute based on 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 the Schedule and subject to a $3,500 treatment limit under the MIG?
ii. Is the applicant entitled to receive medical benefits in the amount of $9,092.57 for physiotherapy services recommended by Spinetec Health Care Solutions in a treatment plan submitted June 21, 2018, and denied by the respondent July 5, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payment of benefits?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG or that the treatment plan in dispute is reasonable and necessary. As no benefits are payable, the applicant is not entitled to interest or an award under O. Reg. 664.
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 psychological impairments may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5As I understand it, the applicant submits her impairments are not predominantly minor in nature because she continues to experience ongoing issues despite the amount of time that has elapsed since the accident. She submits that treatment beyond the MIG is warranted as she has constant and excruciating pain that has required both prescription and over-the-counter medication, as well as rehabilitation. To this end, she relies on clinical notes and records from her family physician, Dr. Bausmer, and a “Mental Health Program Initial Assessment” by Ms. Clark from July 13, 2018.
6In response, Co-Operators submits that the applicant sustained minor injuries as a result of the accident and has fallen well-short of meeting her burden to prove that removal from the MIG is warranted. It asserts that the applicant has not attended at Dr. Bausmer’s office for accident-related complaints since one month post-accident; that the ambulance call report and emergency records reveal no loss of consciousness or head injury; that the applicant has never been referred to a specialist to address her purported concussion symptoms; that the applicant’s version of events has evolved since the accident to the point that her self-reporting is not reliable; that Dr. Baker’s s. 44 report did not identify any accident-related impairments; that the applicant has failed to produce any expert evidence to support her claim; that no OCF-18s for psychological treatment has ever been submitted and the applicant has never attended for same; and, on the medical evidence that has been produced, it appears that the applicant completely recovered from her accident-related complaints by August 2018.
7I agree with Co-Operators and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. To be frank, the applicant’s theory of her own case is somewhat unclear. As Co-Operators argues, the applicant offered virtually no argument to explain why her injuries should not be considered minor under the Schedule. While the applicant submits she has excruciating pain, there is no corroborating medical evidence to support this claim and there is limited evidence, generally, of any accident-related complaints over the last three years since August 2018. Indeed, the lone treatment plan in dispute was authored immediately following the accident while the applicant was still subject to treatment within the MIG. The Tribunal would have benefitted from more specific submissions detailing the grounds on which the applicant sought removal from the MIG.
8In any case, the applicant offered no medical evidence to suggest that her physical injuries are anything but soft-tissue injuries that clearly fall within the definition of a minor injury under s. 3(1). The notes of Dr. Bausmer offer no insight into any tears or fractures or concerning physical injuries that would fall outside of the MIG. Diagnostic imaging conducted revealed unremarkable findings. Physiatrist Dr. Baker’s unchallenged s. 44 report also confirms that the applicant sustained soft-tissue injuries. While the applicant’s submissions refer to purported post-concussion symptoms, it does not appear that she was ever referred for an assessment or further investigation into these symptoms and she has not reported any issues since one-month post-accident in July 2018. The hospital records reveal no loss of consciousness and diagnose a minor injury because of a minor collision. Accordingly, the applicant has provided no reason to doubt Dr. Baker’s opinion that she sustained soft-tissue injuries that are treatable within the MIG.
9With 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 would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant provided no indication that there were any pre-existing impairments that a practitioner identified as preventing maximal medical recovery if kept within the MIG, which is the requirement for removal under this ground. Indeed, the applicant’s submissions state that her past medical history is unremarkable.
10The Tribunal has determined that chronic pain syndrome or chronic pain with functional impairment may warrant removal from the MIG. However, other than her contention that she continues to experience excruciating pain, the applicant offered no objective medical opinion or evidence to support removal from the MIG under this ground and there are no contemporaneous clinical notes to support ongoing functional impairment. She has never been diagnosed with chronic pain, has never been referred to a specialist and did not offer submissions on the six criteria under the AMA Guides that the Tribunal has adopted as an interpretive tool for evaluating chronic pain claims in the absence of a diagnosis. Indeed, the only medical evidence relied upon by the accident is from within two months of the accident, which undermines any claim that she has an ongoing or chronic excruciating condition resulting from the accident.
11Finally, the Tribunal has determined that accident-related psychological impairments may warrant removal from the MIG, as they are not captured within the definition of a minor injury. However, the applicant’s complaints of emotional trauma, anxiety, panic, low mood and nightmares all fall within one month of the accident and there is no indication that these symptoms persisted after July 2018 or in the three years post-accident. The Patient Health Questionnaire from July 12, 2018 found minor depression and advised that if symptoms persist for more than one month that treatment should be considered.
12The applicant then attended for her Mental Health Program initial visit on July 13, 2018 with Ms. Clark and described her anxiety and agreed to a follow-up one month later. However, Ms. Clark’s note dated August 9, 2018 indicates that the applicant was a “No show for followup” and that her “issues seemed to be resolving by Initial visit July 12th so will leave onus on [the applicant] to followup if needed.” It does not appear that the applicant ever attended for another session of followed up with any psychological or social work treatment requests. The applicant has never been diagnosed with a psychological impairment or attended treatment. Accordingly, in the absence of evidence to support ongoing psychological symptoms and with no OCF-18s in evidence requesting an assessment or treatment, the applicant has not met her burden for removal from the MIG on this ground.
13Accordingly, for these reasons, I find the applicant has not demonstrated on balance of probabilities that her accident-related impairments warrant removal from the MIG. I see no reason to interfere with Co-Operators’ determination.
Is the treatment plan reasonable and necessary?
14Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding that the MIG limits have been exhausted. As a result, an analysis of whether the treatment plan in dispute is reasonable and necessary under s. 16 is not required. Further, as the plan was submitted via OCF-18 while the applicant was subject to treatment within the MIG and denied for the same reason, Co-Operators’ denial is not subject to review under s. 38(6). As no benefits are overdue, no interest is payable under s. 51.
Section 10 Award
15The applicant also sought an award under s. 10 of O. Reg. 664, submitting that Co-Operators was “well aware of the severity” of her condition and that it chose to delay and defer payment unreasonably. Under s. 10, the Tribunal may award up to 50% of the benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
16I find an award is not appropriate. The applicant was unsuccessful in meeting her burden and provided limited medical evidence to support her claim, so it follows that Co-Operators did not unreasonably withhold or delay the payment of benefits while the applicant was still subject to treatment within the MIG.
CONCLUSION
17The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG or that the treatment plan in dispute is reasonable and necessary. No interest is payable, and a s. 10 award is not appropriate. The application is dismissed.
Date of Issue: September 28, 2021
_______________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.