Citation: Anthony v. Intact Insurance Company, 2022 ONLAT 20-004818/AABS

Licence Appeal Tribunal File Number: 20-004818/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:

Rajkumar Anthony

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Arvin Gupta, Counsel

For the Respondent:

Christian Farahat, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rajkumar Anthony, (R.A.), was involved in an automobile accident on November 3, 2018, and sought benefits from the respondent, (“Intact”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). R.A. was denied certain benefits by Intact on the basis that it determined his injuries were predominantly minor and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). R.A. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2I have been asked to decide the following issues:

1. Are R.A.’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?

2. Are the following medical benefits, recommended by Reddy Physio and Rehab Inc. reasonable and necessary:

i. $1,302.19 (less $1,185.81 approved) for medical services in a treatment plan submitted on April 29, 2019;

ii. $1,800.00 for an attendant care assessment in a treatment plan submitted on April 30, 2019;

iii. $2,810.00 for chiropractic services in a treatment plans submitted on June 27, 2019, and

iv. $3,332.00 for chiropractic services in a treatment plan submitted on October 16, 2019?

3. Is the cost of examination expense in the amount of $1,600.00 for a functional assessment, recommended by James Fung in a treatment plan submitted on May 8, 2019, reasonable and necessary?

4. Is R.A. entitled to interest on any overdue payment of benefits?

FINDINGS

3R.A. has not established that his accident-related impairments warrant removal from the MIG. Since the MIG limits have been exhausted, it is not necessary for me to consider with the treatment plans are reasonable and necessary. Accordingly, since no benefits are overdue, no interest is payable.

ANALYSIS

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.”

5An 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 may warrant removal from the MIG. In all cases, the onus of establishing entitlement to treatment rests with the insured.

6R.A. relies on the clinical notes and records (CNRs) of his family physician, Dr. Rofaiel, diagnostic imaging reports, and the records of his treatment service provider.

7In response to R.A.’s claim, Intact relies on the following evidence:

1. A report by Dr. Goldstein, physician, who opined that R.A. suffered musculoskeletal injuries, diagnosing cervical and lumbar spine sprains/strains. Dr. Goldstein concluded that R.A. had no functional range of motion impairments.

8Intact also questions R.A.’s claims with the following assertions:

1. The CNRs of Dr. Rofaiel identify an initial visit approximately seven weeks post-accident, and a single visit on account of post-accident-related pain on May 14, 2019;

2. The medical records confirm that R.A. was not prescribed any pain medication, nor is there any mention of referrals to specialists for accident-related pain or impairment;

3. The diagnostic imaging provides no support that any results were accident-related or that the results are not captured within the MIG;

4. Despite the complaint of a right shoulder partial tear, R.A. made no mention of right shoulder pain to the s. 44 assessor, Dr. Goldstein. Further, the right shoulder pain was not discovered until October 12, 2019, almost one-year post-accident, and after a documented report of a rugby injury;

5. There is contradictory evidence of a pre-existing injury. R.A. submits that the diagnostic imaging is evidence of a pre-existing condition, however, there is no supporting documentation pre- or post-accident of a pre-existing medical condition that would prevent him from achieving maximum medical recovery within the MIG. Significantly, R.A. reported to Dr. Goldstein that his medical history was unremarkable; and

6. The disputed treatment plans do not indicate that R.A. had any condition that would affect his response to treatment for any accident-related injuries.

9I note that none of Intact’s assertions were contested by R.A., despite R.A. having the benefit of reply.

10I find that R.A. failed to meet his onus to prove entitlement for the following reasons:

1. The initial visit to Dr. Rofaiel on December 3, 2018 contains no reference to the accident. On the December 19, 2018 visit, R.A. reports that he was in an accident, but was receiving physiotherapy and feeling better. During a follow up visit on December 21, 2018, Dr. Rofaiel noted normal back palpitation and straight leg testing was negative, no diagnosis was provided;

2. Despite his submissions, R.A. has not provided compelling or persuasive evidence that his accident-related injuries are not predominantly minor. This is supported by the diagnosed injuries: a) WAD II with complaint of neck pain with musculoskeletal signs, b) sprain and strain of thoracic spine, c) sprain and strain of lumbar spine, d) non-organic sleep disorders, e) sprain and strain of sternoclavicular joint, f) chronic post-traumatic headache, and g) sprain and strain of ribs and sternum;

3. R.A. failed to establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable. In addition, there is no evidence by way of expert or specialist report that recommend any of the proposed treatment, outside of the treatment plans;

4. I prefer the report of Dr. Goldstein over the sparse CNRs of Dr. Rofaiel, as Dr. Goldstein conducted a more thorough assessment and report on R.A.’s accident-related injuries; and

5. R.A. provided no submissions or evidence on why the attendant care or functional abilities assessments are reasonable and necessary, accordingly, the issues are dismissed.

Are the treatment plans reasonable and necessary?

11I have determined that R.A. sustained a minor injury and is confined to treatment within the MIG. Consequently, an analysis of whether the disputed treatment plans are reasonable and necessary is not required, as the MIG limit has been exhausted. Accordingly, as no benefits are overdue, no interest is payable under s. 51.

CONCLUSION

12R.A. has not satisfied his burden to demonstrate that removal from or treatment beyond the MIG is required. Accordingly, he is not entitled to payment of any of the disputed treatment plans as they are not reasonable and necessary. No interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.