Licence Appeal Tribunal File Number: 20-005623/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:
Mohamad Raja-Mohamad
Applicant
and
The Personal Insurance Company
Respondent
DECISION AND ORDER
VICE-CHAIR: Chloe Lester
APPEARANCES:
For the Applicant: Mohamad Raja-Mohamad, Applicant Linda To, Counsel
For the Respondent: Christeena Lucknauth, Counsel
Written Hearing: Heard by way of written submissions
DECISION AND ORDER
BACKGROUND
1The applicant was involved in an automobile accident on December 12, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).1
2Based on the initial injuries right after the accident, the respondent determined the applicant’s injuries were minor and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limits2.
3The applicant submitted treatment plans for various physical therapies, a psychological assessment and a chronic pain assessment that proposed funding outside of the MIG limits. The respondent denied the benefits on the basis that the injuries the applicant sustained were minor and that the MIG limits were exhausted.
4The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”)3.
ISSUES
5The issues to be determined in this hearing are:
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 a medical benefit in the amount of $1,882.39 (less amounts approved) for various physical therapies, recommended by Complete Rehab in a treatment plan (OCF-18) submitted on June 19, 2019?
c. Is the applicant entitled to a medical benefit in the amount of $1,528.11 for various physical therapies, recommended by Complete Rehab in a treatment plan (OCF-18) submitted on November 25, 2019?
d. Is the applicant entitled to a medical benefit in the amount of $1,528.11 for various physical therapies, recommended by Complete Rehab in a treatment plan (OCF-18) submitted on March 23, 2020?
e. Is the applicant entitled to the cost of examination in the amount of $2,460 for a Psychological Assessment, recommended by Dr. Madhu Bhardwaj in a treatment plan submitted on October 2, 2019?
f. Is the applicant entitled to the cost of examination in the amount of $2,460.00 for a Chronic Pain Assessment recommended by Complete Rehab in a treatment plan submitted on February 7, 2020?
g. Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
6Having considered all the evidence, I conclude the applicant is not in the MIG and entitled to all the treatment plans.
7The applicant is entitled to interest if the benefits have been incurred and are considered overdue.
THE MINOR INJURY GUIDELINE AND THE DISPUTED TREATMENT PLANS
8The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in section 3(1) of the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on medical and rehabilitation benefits.
9To request treatment above the $3,500.00 funding limit, the applicant must prove, on the balance of probabilities, that her injuries do not fall within the definition of minor injury in section 3(1) of the Schedule4. The applicant can establish that by:
a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit5; or
b. Establishing an impairment sustained in the accident is not a predominantly minor injury.
10For an applicant to be removed from the MIG, there must be:
…compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any prepared by a health practitioner.
The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.
Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.6
11Section 15 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by the insured person for medical benefits. The process for applying for those benefits is contained in section 38 of the Schedule.
12The applicant has the onus to prove that he is out of the MIG and the treatment plans for physical therapy and assessments are reasonable and necessary for the injuries he sustained in the car accident.
ANALYSIS
13The applicant claims that he is entitled to all the treatment plans in dispute because they are reasonable and necessary because of the injuries he sustained in the car accident. He argues that he has had ongoing physical issues since the car accident, he has chronic pain syndrome and a psychological diagnosis that should remove him from the MIG.
14The applicant was assessed by Dr. Bhardwaj, psychologist, on November 26, 2019. During this assessment, the applicant reported physical pain complaints, exhibited pain compensating behaviour by standing up, rubbing his neck and adjusting in his seat, and reported psychological symptoms. He was diagnosed with adjustment disorder with mixed anxiety and depression as a result of the accident. Dr. Bhardwaj recommended 12 counselling sessions.7
15The applicant was also assessed by Dr. Karmy, a chronic pain physician, on December 14, 2020. As a result of the assessment, the applicant was diagnosed with chronic mechanical neck pain, upper back pain, lower back pain, and bilateral knee pain. He was also diagnosed with chronic pain syndrome and sleep disorder as a result of the accident. Dr. Karmy recommended a comprehensive multidisciplinary rehabilitation therapy, including an exercise program, passive modalities and therapy to manage his psychological problems.8
16The respondent argues that the treatment plans are not reasonable or necessary because the applicant returned to work right after the accident, and his physical injuries were considered minor. The respondent argues that the applicant’s assessments diagnosing him with chronic pain syndrome and psychological conditions should not be given any weight because there is no other corroborating medical evidence to support his subjective reports to the assessors. The respondent claims that the medical documentation from Dr. Jessa, chiropractor, Complete Rehab, the Family Doctor, OHIP records and prescription summary do not indicate any real musculoskeletal issues, significant pain complaints or psychological concerns. The respondent also argues there were no functional restrictions on the applicant’s life, and he returned to work. The respondent relies on two decisions that gave less weight to the applicant’s assessment reports because of the inconsistencies between the applicant’s self-reports and the medical documentation.9 The respondent did not pursue its own s.44 independent medical examinations.
17The main legal question in this hearing is should I give less weight to an expert report, without having any contrary opinions, on the basis that the applicant did not complain of psychological issues or significant ongoing pain complaints to any other of his treating practitioners?
18The simple answer is no. My job as an adjudicator is to weigh all the evidence presented and determine on a balance of probabilities whether the applicant has met his onus to prove entitlement to the benefits.
19The issues in dispute for this hearing were argued through written submissions. No oral testimony was presented, so all documentation is in written format. The medical documentation includes clinical records from Complete Rehab Centre, the family doctor records which are largely illegible, OHIP records, prescription history and two assessments conducted on behalf of the applicant. Absent a contrary medical opinion, my job is not to scrutinize the diagnosis made by medical professionals within their expertise but to weigh the evidence presented. The respondent asks me to weigh the clinical notes against the applicant’s assessments and determine that because the applicant did not complain to his treating practitioners about chronic pain or psychological issues, I should give little weight to the assessments. My role is not to discredit a diagnosis made by a medical professional but to again weigh the evidence. Just because an applicant did not complain to a treating practitioner about medical symptoms should not mean that a medical professional did not conduct an appropriate assessment or make a proper diagnosis. The applicant’s chronic pain assessor reviewed extensive clinical notes before coming to his conclusion. The applicant’s psychological assessor completed numerous psychological tests in conjunction with his assessment to determine whether the applicant was suffering from a psychological condition.
20The respondent relies on two Tribunal decisions that gave less weight to the applicant’s assessment reports because of inconsistencies between the applicant’s self-reports and the medical documentation. In reading those decisions, the adjudicators had two opposing assessments, one produced by the applicant and the other produced by the respondent. Again, in those decisions, the adjudicator weighed the evidence, which included opposing assessments, and gave less weight to the applicants’ evidence. In this case, I do not have opposing assessments. The applicant’s assessments are the most recent medical evidence on the file. The medical assessors reviewed the medical history, performed an assessment, and diagnosed the applicant with chronic pain syndrome and a psychological condition. The mere fact that the applicant did not complain to other treating practitioners about his impairments from the accident, in my opinion, does not mean he was not suffering from other conditions or impairments. Therefore, on a balance of probabilities, I find that the applicant has met the test and is out of the MIG.
21The applicant requests treatment plans for a chronic pain assessment, psychological assessment, and treatment for various physical therapies. I find the treatment plans reasonable and necessary because they address the conditions that the applicant has been diagnosed with. As the applicant continued to complain of pain in the records from Complete Rehab it is only reasonable that he continued with various therapies to try to improve upon the conditions. The treatment plans for the assessments are reasonable and necessary because they were the very examinations that diagnosed the applicant with chronic pain syndrome and a psychological condition.
CONCLUSION AND ORDER
22The applicant proved on the balance of probabilities that his impairments warrant removal from the MIG and he is entitled to all treatment plans in dispute.
23The applicant is entitled to interest if the treatment plans have been incurred, billed in accordance with the treatment plan, and are considered overdue.
Released: April 27, 2022
__________________________
Chloe Lester
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 as amended(“Schedule”).
- Superintendent’s Guideline No. 01/14 Minor Injury Guideline, issued under s. 268.3 (1.1) of the Insurance Act.
- Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
- Scarlett v. Belair Insurance, 2015 ONSC 3635 para 24
- The Schedule Section 18(2)
- Superintendent’s Guideline No. 01/14 Minor Injury Guideline Section 4
- Applicant’s Brief Tab 5 Dr. Bhardwaj’s Assessment Report dated November 26, 2019
- Applicant’s Brief Tab 9 Dr. Karmy’s Chronic Pain Assessment dated December 30, 2020
- Reid v. Economical Mutual Insurance Company, 2021 ONLAT 20-001973/AABS; A.G. v. Wawanesa Mutual Insurance Co. [2016] O.F.S.C.D. No. 141