Citation: Ebhotamen v. Intact Insurance Company, 2022 ONLAT 20-011514/AABS
Licence Appeal Tribunal File Number: 20-011514/AABS
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:
Peter Ebhotamen
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Jacqueline Ozor, Counsel
For the Respondent: Angel Ju, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Peter Ebhotamen (“P.E.”), was involved in an automobile accident on September 16, 2017, and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). P.E. applied for medical benefits that were denied by Intact because it determined that his injuries were predominantly minor and subject to the Minor Injury Guideline (the “MIG”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. At the case conference, Intact raised a preliminary issue regarding chiropractic treatment in a treatment plan dated March 6, 2018. It submits that pursuant to s. 56 of the Schedule, P.E. is statute barred from proceeding with his claim for the March 6, 2018 treatment plan because he failed to apply within the two-year limitation period after Intact’s refusal to pay the treatment plan. P.E. disagreed and applied to the Tribunal for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
3Is P.E.’s claim for chiropractic treatment in the amount of $2,847.24 barred by the limitation period prescribed in the Schedule?
SUBSTANTIVE ISSUES IN DISPUTE
4The issues in dispute are as follows:
a. Are P.E.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
5If P.E.’s injuries are not predominantly minor, then I must determine the following:
a. Is the cost of examination expense in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Wagner in a treatment plan (OCF-18), denied on April 19, 2018, reasonable and necessary?
b. Is the medical benefit in the amount of $3,027.26 for chiropractic treatment, recommended by Alpha Physio in an OCF-18denied December 3, 2018, reasonable and necessary?
c. Is the medical benefit in the amount of $2,731.76 for chiropractic treatment, recommended by Alpha Physio in an OCF-18 denied August 28, 2019, reasonable and necessary?
d. Is the medical benefit in the amount of $2,453.05 for chiropractic treatment, recommended by Alpha Physio in an OCF-denied December 4, 2019, reasonable and necessary?
e. Is P.E. entitled to interest on any overdue payment of benefits?
RESULT
6P.E. is statute barred from pursuing his claim for the March 6, 2018 treatment plan in accordance with s. 56. P.E. is not permitted to proceed with his claim under s. 7 of the Licence Appeal Tribunal Act, 1999, S.). 1999, c. 12, Sch. G (the “LAT Act”).
7P.E. has not demonstrated that his accident-related injuries and impairments justify removal from the MIG. He is not entitled to the disputed treatment plans, and no interest is payable.
ANALYSIS
Was the claim for the March 6, 2018 OCF-18 made after the expiry of the two-year limitation period?
8Under s. 56 of the Schedule, an applicant has two years to commence an application in respect of a denial of benefits from the date that an insurer refuses to pay the amount claimed.
9The OCF-18 for chiropractic treatment in the amount of $2,847.24, was submitted on March 9, 2018 (the OCF-18 is dated March 6, 2018). Intact denied the claim on March 23, 2018, based on its determination that P.E.’s injuries fell within the MIG, and it required an insurer’s examination (“IE”). A second denial letter was sent to P.E. on May 7, 2018, as a result of the IE report. P.E. applied to the Tribunal on June 26, 2020.
10There is no dispute that P.E.’s application was filed outside of the two-year limitation period under s. 56 of the Schedule. Therefore, I accept that P.E.’s application for dispute resolution regarding the March 6, 2018 OCF-18 was not filed with the Tribunal within the two-year limitation period as prescribed by s. 56 of the Schedule.
Section 7 of the LAT Act and s. 56 of the Schedule
11P.E. seeks relief from the expiry of the s. 56 limitation period for his claim for the March 6, 2018 OCF-18 for chiropractic treatment under s. 7 of the LAT Act, which sets out:
Extension of time
7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
12In his submissions, P.E. submits that he had a “bona fide intention” of appealing Intact’s decision to refuse payment for the chiropractic treatment before the deadline. However, P.E. provided no evidence that he requested an extension based on the pandemic, nor did he direct me to any supporting documents or evidence that the pandemic had in any way led to the delay in filing his claim.
13In response, Intact submits that in order to rely on the state of emergency order, evidence is required to support that the pandemic affected P.E.’s ability to request an extension of time. It submits that neither the s. 7 of the LAT Act and O. Reg. 73/20 of the Emergency Management and Civil Protection Act (“the Emergency Regulation”) apply as a remedy to P.E.’s delay.
14I agree with Intact. First, P.E.’s submissions are not evidence, and therefore, fail to meet the requirement of supporting evidence. Second, a request under the Emergency Management and Civil Protection Act must be made with documentation or evidence in support of the request. The Tribunal cannot consider such a request without evidence or adequate reasons for the request. Based on the lack of evidence or reasons, P.E. has failed to meet the requirement and has failed to establish that he is able to rely on the s. 7 remedy.
15Accordingly, I find that P.E. is statute barred from proceeding with his claim for the March 6, 2018 OCF-18, in accordance with s. 56 of the Schedule.
Applicability of the MIG
16Section 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.”
17An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.
18I find that P.E. has not met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of a pre-existing condition, psychological impairment or chronic pain.
Does P.E. suffer from a pre-existing condition that prevents recovery under the MIG?
19Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 MIG limit. In order to be exempted, an applicant must provide compelling evidence meeting the following requirements:
a. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
b. The pre-existing condition will prevent maximum medical recovery from a minor injury if the insured is subject to the $3,500.00 limit on treatment costs under the MIG.
20It is well-established that the standard for removal from the MIG due to a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude an insured’s impairment from the MIG. It must be shown to prevent maximal recovery within the limit imposed by the MIG.
21The evidence1 indicates that P.E.’s medical history is significant for hypertension, tonsil and gall bladder removal, sleep apnea, high cholesterol, and chronic lower back and leg pains. In the OCF-18, submitted November 27, 2018, chiropractor, Dr. Virk, listed care giving duties, housekeeping demands, psychological and pre-existing issues as barriers to recovery.
22Despite Dr. Virk’s opinion, there is no medical evidence that shows how these pre-existing medical conditions were affected by the accident, or how P.E.’s recovery is impacted by these conditions. In addition, family physician, Dr. Hamandi’s clinical notes and records indicate a single instance of knee-related pain, regarding a boil on his right knee, diagnosed on May 26, 2016. I further note that P.E. made no mention of any pre-existing injuries to any of the s. 44 assessors.
23I find that P.E. does not rely on any medical evidence that establishes he would be prevented from reaching maximal medical recovery within the MIG as a result of his pre-existing impairments. I am not persuaded that he has satisfied his burden under s. 18(2).
Did P.E. suffer physical injuries that warrants removal from the MIG?
24P.E. submits that his physical injuries warrant treatment beyond the MIG. In this regard, he relies on the clinical notes and records of his family physicians.
25In response, Intact submits that P.E.’s accident-related injuries are captured within the definition of a ‘minor injury’ under the MIG. Further, Intact argues that P.E.’s medical evidence supports that he suffered predominantly minor injuries. To this end, it points to the September 26, 2017 Disability Certificate (“OCF-3”), which lists physical injuries that are captured under the definition of ‘minor injury’. The OCF-3 author, physiotherapist, Janki Satyapanthi notes a duration of 9-12 weeks for accident-related impairment.
26I agree with Intact and find that P.E. has not demonstrated that his accident-related injuries warrant removal from the MIG. The physical injuries listed in the OCF-3 and the clinical notes and records are captured within the definition of a minor injury. There is no evidence that the injuries noted in the OCF-3 would prevent recovery if P.E. remained within the MIG limits. While the OCF-3 mentions chronic post-traumatic headache and some psychological symptomatology, as will be discussed later, none of these injuries or impairments are indicated to be barriers to P.E.’s recovery. Further, an October 11, 2017 diagnostic imaging report of the lumbar spine revealed mild bilateral degenerative facet osteoarthritis at L5-S1. Pelvic and sacroiliac joints imaging did not reveal any signs of injury. I find that the medical evidence supports that P.E. sustained soft-tissue injuries as a result of the accident. Therefore, P.E. has failed to meet his burden on this ground.
Did P.E. suffer psychological impairments that justify removal from the MIG?
27As noted above, an insured may be removed from the MIG if they sustain a psychological impairment as a result of the accident, on the basis that psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
28P.E. does not address the claim for a psychological assessment. His submissions fail to engage any analysis of whether he suffered any accident-related psychological impairment, how the alleged impairment has impacted his functional ability to engage in his daily activities, or why the alleged impairments requiring further investigation to determine the appropriate course of treatment.
29As noted earlier, the onus remains on P.E. to establish, on a balance of probabilities that the treatment he seeks is reasonable and necessary. P.E. has failed to address the issue to any extent therefore, he has failed to meet his evidentiary burden. Accordingly, P.E. has not established that he suffered any psychological impairment that warrants removal from and treatment beyond the MIG.
Does P.E. suffer from chronic pain as a result of the accident?
30I find that P.E. has not established he suffers from chronic pain as a result of the accident.
31P.E. submits that his pre-existing ongoing pain is indicative of a chronic pain condition, and his accident-related injures have “turned chronic”. Despite this argument, he did not provide any submissions that speak to any of the six criteria outlined in the AMA Guides2 that supports his chronic pain complaint as a result of a pre-existing condition exacerbated or otherwise affected as a result of the accident.
32Specifically, there is no evidence that he: (i) uses prescription drugs beyond the recommended duration or any abuse of same; (ii) has excessive dependence on health care providers or family; (iii) suffers from secondary physical deconditioning due to disuse or fear-avoidance of physical activity due to pain; (iv) has withdrawn from social interactions, including work or recreational activities (he reported to have started a new full-time position, post-accident). While he reports that (v) his pre-accident function has not fully restored since the accident, he (vi) has not developed psychosocial sequelae after the incident (he reported to the s. 44 psychological assessor that he did not need or want psychological treatment). The AMA Guides require an applicant to meet a minimum of three of the six criteria. P.E. has not met this requirement and has therefore failed to meet his burden.
33Simply implying that he has developed chronic pain without directing me to any referrals to a pain specialist, or any other report that supports his chronic pain complaints, is insufficient. The OCF-18s are not enough to justify a claim for chronic pain, where the supporting medical evidence is largely silent on significant post-accident pain, or where self-reporting fails to present a consistent pre-and post-accident pain history. The family physician records do not support that P.E. suffers from a chronic pain condition, and his self-reporting would indicate that his functionality is largely unaffected, despite any pre-existing conditions. At the very least, there should be a substantive analysis with evidence of how chronic pain has caused significant functional limitation as a result of the accident. P.E. has not directed me to such an analysis or evidence.
34For the above reasons, I find that P.E. has not demonstrated that his accident-related injuries warrant removal from or treatment beyond the MIG as a result of a chronic pain condition.
Are the treatment plans reasonable and necessary?
35I have determined that P.E.’s accident-related injuries are properly captured within the MIG. As I understand, there is approximately $40.00 remaining under the MIG limit. Should P.E. decide to seek treatment to use up the remainder of the MIG balance, that is up to him.
36An analysis of whether the disputed treatment plans are reasonable and necessary is not required, as the total of the disputed OCF-18s is above and beyond the MIG limit. As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
CONCLUSION
37P.E. has not met his burden to demonstrate that treatment beyond the MIG is required. He is not entitled to the disputed treatment plans or interest. The application is dismissed.
Released: November 15, 2022
Derek Grant
Adjudicator