Citation: Villegas v. Travelers Canada, 2021 ONLAT 20-007827/AABS

Release date: 09/27/2021

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:

Enrique Villegas

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice Chair

APPEARANCES:

For the Applicant:

Alexandra Whitehead, Counsel

For the Respondent:

Sara Baum, Counsel

HEARD:

By way of written submissions

1The applicant was injured in an accident on November 9, 2018, and sought benefits from the respondent, Travelers, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Travelers denied the benefits 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:

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 MIG?

b. Is the applicant entitled to chiropractic treatment recommended by Activa Kitchener, as follows:

i. $112.50 ($1,212.50 less $1,100.00 approved by the respondent), in a treatment plan (plan) dated February 22, 2019? and

ii. $2,024.90 in a plan dated April 4, 2019?

c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

d. 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 or that the treatment plans in dispute are 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.

5The applicant submits that he suffers from neck pain, shoulder pain, right elbow pain and lower back pain, as well as psychological symptoms and sequelae that justify removal from and treatment beyond the MIG. To this end, he relies on various clinical notes from his family physician, Dr. Wassef, and Cambridge Memorial Hospital, records from Activa Clinic where he received chiropractic and physiotherapy treatment until June 2019, and an OCF-23.

6In response, Travelers asserts that the applicant sustained minor injuries as a result of the accident. It argues that the applicant was on sick leave pre-accident as of November 3, 2018 and left his employment because he started a new job without issues on November 19, 2018. Further, it submits that diagnostic imaging and CT scans were normal, that the physical impairments identified clearly fall within the minor injury definition, that he has never been diagnosed with a psychological impairment and that the treatment records demonstrated progress. It relies on the s. 44 report of Dr. Boudreau, who diagnosed the applicant was uncomplicated soft tissue injuries that fall within the MIG.

7I agree with Travelers and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. I agree that the actual physical injuries identified in the OCF-23 and OCF-3 by Dr. Rumeo and as diagnosed by Dr. Wassef and Dr. Boudreau are all soft-tissue injuries that clearly fall within the definition of a minor injury under s. 3(1), as they are consistently identified as WAD-II with neck pain, sprain/strain of the thoracic and lumbar spine and rotator cuff syndrome. I find these physical impairments to be consistent with the bulk of the medical evidence and find no indication that they are injuries that fall outside of the MIG.

8In a similar vein, I agree with Travelers that the applicant has not provided evidence to support that his change in employment ten days post-accident was caused by his accident-related impairments. The applicant has never been referred to a specialist or prescribed medication for his accident-related complaints and the diagnostic imaging is normal. As Travelers submits, the applicant self-reported to Dr. Boudreau in September 2019 that he experienced no work restrictions or limitation in his daily activities, which casts doubt on Dr. Rumeo’s opinion that the applicant faces occupational barriers to his recovery. While the applicant may have lingering pain, on the evidence before the Tribunal, it is difficult to find that he sustained physical impairments that fall outside of 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. Accordingly, he cannot be successful here.

10Finally, the applicant is correct that 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, here, I again agree with Travelers that the applicant has only pointed the Tribunal to psychological symptoms and a few self-reports that are purportedly related to the accident and not an actual psychological diagnosis. Indeed, while I am alive to the applicant’s submissions, Dr. Wassef’s November 12, 2018 complaint note about the applicant’s “panic attacks at his work place” was not linked to the accident, was not followed by any other psychological complaints and seemingly did not result in a follow-up by the applicant on the referral from Dr. Wassef.

11The applicant relies on the additional comments section attached to the OCF-23 and Dr. Rumeo’s OCF-18s identifying nervousness, sleep difficulty, fear of being in cars, mood swings, stress, anxiety and flashbacks. However, these comments are beyond the scope of Dr. Rumeo’s expertise as a chiropractor and, in any case, it is well-settled that OCF-18s are not persuasive medical evidence. Further, at no point has the applicant been diagnosed with a psychological impairment or been prescribed medication for his psychological complaints. As Travelers notes, there are also no OCF-18s for psychological treatment before the Tribunal and it does not appear that the applicant has ever sought out same. On these facts, where there is no contemporaneous or corroborative medical evidence to support the applicant’s claims, I find he has not demonstrated that he sustained a psychological impairment as a result of the accident that justifies removal from the MIG.

12Accordingly, for these reasons, I find the applicant has not demonstrated on balance of probabilities that his accident-related impairments warrant removal from the MIG. I see no reason to interfere with Travelers’ determination on same.

Is the treatment plan reasonable and necessary?

13Having 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 plans in dispute are reasonable and necessary under s. 16 is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

Section 10 Award

14The applicant also sought an award under s. 10 of O. Reg. 664, submitting that Travelers ignored the notations of psychological sequelae, failed to remove him from the MIG, and that it willfully abandoned its obligation to consider medical evidence when it attempted to close the applicant’s file in February 2019. 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.

15I find an award is not appropriate. The applicant was unsuccessful in meeting his burden, so it follows that Travelers did not unreasonably withhold or delay the payment of benefits. I agree that the applicant’s MIG claims were not substantiated by objective medical evidence and that Travelers’ notice that it would close the applicant’s file was an administrative action that did not prevent future claims from being considered.

CONCLUSION

16The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that the treatment plans in dispute are reasonable and necessary. No interest is payable, and a s. 10 award is not appropriate. The application is dismissed.

Released: September 27, 2021