Citation: Khazkil v. Economical Insurance Company, 2022 ONLAT 20-012130/AABS

Licence Appeal Tribunal File Number: 20-012130/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:

Yonya Khazkil

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Volha Vinahradava, Paralegal

For the Respondent:

Hermina Nuric, Counsel

HEARD:

By way of written submissions

BACKGROUND

1Y.K. was injured in an accident on June 13, 2018, and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ Y.K. applied for medical benefits that were denied by Economical because it determined that his injuries were predominantly minor and subject to the Minor Injury Guideline (the “MIG”). Y.K. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

a. Are Y.K.’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?

3If Y.K.’s injuries are not predominantly minor, then I must determine the following:

a. Is Y.K. entitled to funding for treatment recommended by Mediwise Healthcare Centre as follows:

i. $3,805.76 for physical therapy services recommended in an OCF-18 dated September 25, 2018, and denied on October 10, 2018?

ii. $2,921.42 for physical therapy services recommended in an OCF-18 dated January 4, 2019, and denied on January 15, 2019?

iii. $1,920.53 for a psychological assessment recommended in an OCF-18 dated October 19, 2018, and denied on November 1, 2018?

iv. $2,200.00 for a functional impairment assessment recommended in an OCF-18 dated September 28, 2020, and denied on October 7, 2020?

4Is Y.K. entitled to interest on any overdue payment of benefits?

FINDING

5Y.K. has not demonstrated that her accident-related injuries and impairments justify removal from the MIG. She is not entitled to the disputed treatment plans, and no interest is payable.

ANALYSIS

Applicability of the MIG

6Section 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.”

7An 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.

8I find that Y.K has not met her burden of proving that her accident-related impairments require treatment beyond the MIG on the basis of a pre-existing condition, psychological impairment or chronic pain.

Does Y.K. suffer from a pre-existing condition that prevents recovery under the MIG?

9Section 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.

10It is well-settled 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.

11The evidence indicates that Y.K.’s medical history is significant for diabetes, hypertension and hypercholesterolemia. In the OCF-18s for physical treatment, chiropractor, Dr. Rakkar, listed diabetes and hypertension as conditions that could affect Y.K.’s response to treatment.

12Despite Dr. Rakkar’s opinion, there is no medical evidence that shows how these pre-existing medical conditions were affected by the accident, or how Y.K.’s recovery is impacted by these conditions. In addition, family physician, Dr. Woo, does not identify diabetes or hypertension as having an adverse effect or being a barrier to Y.K.’s recovery from her accident-related injuries.

13I find that where Y.K. does not rely on any medical evidence that establishes she would be prevented from reaching maximal medical recovery within the MIG as a result of these pre-existing impairments, I am not persuaded that she has satisfied her burden under s. 18(2).

Did Y.K. suffer physical injuries that warrants removal from the MIG?

14Y.K. submits that her physical injuries warrant treatment beyond the MIG. In this regard, she relies on the clinical notes and records of her family physician and a Disability Certificate (“OCF-3”) from chiropractor, Dr. Rakkar.

15In response, Economical submits that Y.K. sustained predominantly minor injuries as a result of the accident and has not met her evidentiary burden. Economical submits that Y.K.’s accident-related injuries are captured within the definition of ‘minor’ under the MIG. Further, Economical argues that Y.K.’s medical evidence supports that she suffered predominantly minor injuries. To this end, it points to the initial diagnosis from Dr. Woo of lower back sprain and decreased c-spine flexion. Subsequent visits note diagnoses of cervical and lumbar sprain and cervical and lower back pain.

16I agree with Economical and find that Y.K. has not demonstrated that her 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. While Dr. Rakkar identifies 15 impairments in the OCF-3, it is unclear which, if any, of the physical injuries would fall outside the definition under s. 3(1) of the Schedule. I note that in the OCF-3, Dr. Rakkar noted an anticipated duration of disability of 9-12 weeks. Further, the diagnostic imaging reports do not demonstrate that she sustained a non-minor accident-related injury. I find that the evidence supports that Y.K. sustained soft-tissue injuries as a result of the accident. A MIG discharge form from a treatment provider, without other objective corroborating medical evidence, will not suffice for removal from the MIG. Y.K. has failed to meet her burden on this ground.

Did Y.K. suffer psychological impairments that justify removal from the MIG?

17As 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. In support of her position, Y.K. refers to the impairments listed in the OCF-3 and the psychological evaluation report of Dr. Mrahar diagnosing Y.K. with an unspecified adjustment disorder.

18I disagree with Y.K.’s position and find that the evidence does not support her position. The medical evidence is light on psychological or emotional complaints, and there are no referrals from her treating physician for psychological treatment. I note that she was prescribed depression medication, however, it appears to be related to the unfortunate passing of her husband. There is no indication that her depression worsened after the accident, or more significantly, that it prevented her recovery from her accident-related impairments. In addition, as the OCF-3 was completed by a chiropractor, I find that any psychological or emotional diagnosis is beyond the scope of his practice. Lastly, Y.K. reported to the insurer examination assessor, psychologist Dr. Weinberg, that she did not need psychological intervention.

19In this regard, I find it difficult to conclude that Y.K. suffered significant accident-related psychological impairments that would warrant removal from the MIG on this basis.

Does Y.K. suffer from chronic pain as a result of the accident?

20Y.K. submits that her ongoing pain is indicative of a chronic pain condition. Despite her claim, she did not provide any submissions that speak to any of the six criteria outlined in the AMA Guides² that supports her chronic pain complaint as a result of the accident. Specifically, there is no evidence that she: (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. While she reports that (v) her pre-accident function has not fully restored since the accident, she (vi) has not developed psychosocial sequelae after the incident. The AMA Guides require an applicant to meet a minimum of three of the six criteria. Y.K. has not met this requirement and has therefore failed to meet her burden.

21While a diagnosis of chronic pain or chronic pain syndrome is not required, it is difficult to consider treatment for chronic pain where the only reference to ‘chronic pain’ comes from a chiropractor. While a chiropractor may be able to treat patients with chronic pain, I find that diagnosing such a condition is beyond the scope of practice of a chiropractor.

22For the above reasons, I find that Y.K. has not demonstrated that her 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?

23I have determined that Y.K. accident-related injuries are properly captured within the MIG, it is my understanding the limits of the MIG have been exhausted. Consequently, an analysis of whether the disputed treatment plans are reasonable and necessary is not required. As no benefits are overdue, no interest is payable under s. 51 of the Schedule.

CONCLUSION

24Y.K. has not met her burden to demonstrate that treatment beyond the MIG is required. She is not entitled to the disputed treatment plans or interest. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.