Licence Appeal Tribunal File Number: 20-006066/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:
Sand Jay Mundle
Applicant
And
Chubb Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Sana Jaffery, Paralegal
For the Respondent:
Jason Frost, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, SJM, was involved in an automobile accident on March 6, 2018, and sought benefits from the respondent, Chubb, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016).1 SJM sought funding for various benefits including medical and rehabilitative benefits and costs of examination expenses. Chubb denied the benefits in dispute because it determined that his accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). SJM disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Are SJM’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?
3If SJM’s injuries are not predominantly minor, then I must determine the following:
a. Are the medical benefits recommended by Complete Rehab reasonable and necessary as follows:
i. $1,816.74 for physical therapy in a treatment plan (OCF-18) denied on October 26, 2018?
ii. $1,591.12 for physical therapy in an OCF-18 denied on December 19, 2018?
iii. $1,591.12 for physical therapy in an OCF-18 denied on June 3, 2019?
iv. $1,591.12 for physical therapy in an OCF-18 denied on June 12, 2019?
b. Is the cost of examination expense in the amount of $2,450.00 for a psychological assessment, recommended by Dr. Jon Mills in an OCF-18 denied on June 3, 2019, reasonable and necessary?
c. Is the cost of examination expense in the amount of $2,460.00 for a chronic pain assessment, recommended by Dr. Karmy in an OCF-18 denied on August 14, 2019, reasonable and necessary?
d. Is SJM entitled to interest on any overdue payment of benefits?
FINDING
4SJM has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the disputed OCF-18s are not reasonable and necessary. As there are no overdue payment of benefits, no interest is payable.
ANALYSIS
Applicability of the MIG
5Section 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.”
6An 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.
Did SJM suffer physical injures that remove him from the MIG?
7SJM 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.
8SJM submits that his accident-related impairments – described as sprain and strain of other and unspecified parts of the left knee, headache, disorders of initiating and maintaining sleep and stress, warrants treatment beyond the MIG. SJM relies on clinical notes and treating records, a post-accident shoulder ultrasound, and s. 25 reports as evidence that his impairments are not “minor injuries”. SJM submits that his injuries have not resolved, and he now experiences chronic pain, which has prevented him from reaching maximum medical recovery. SJM submits that the disputed OCF-18s are reasonable and necessary to address his accident-related impairments.
9In support of his position that his physical injuries are not minor, SJM relies on a chronic pain report from Dr. Karmy. In his September 13, 2019 report, Dr. Karmy opined that SJM suffered subacromial/subdeltoid bursitis, impingement syndrome (likely associated with secondary adhesive capsulitis). Dr. Karmy went on to further opine that SJM suffered various injuries from2, all as a result of the accident.
10In response, Chubb submits that there is no evidence supporting that there was the type of impact that would have resulted in any injuries beyond those that would be considered “minor”. It further submits that the accident was a minor rear end collision. Its position is that SJM failed to point to any evidence that he sustained any injuries from the accident in question. Chubb relies on the s. 44 report of Dr. Abram, general practitioner, who concluded that SJM suffered minor injuries; and Dr. Chan, psychologist, who concluded that SJM did not suffer from any diagnosable psychological condition.
11I agree with Chubb. On the evidence, I find that the injuries listed in the medical documentation are consistent in noting that SJM’s injuries are predominantly minor. Diagnostic imaging reports of the left shoulder and left knee did not disclose any tears, fractures or other non-minor injuries. Further, Dr. Karmy’s report is not supported by any evidence that he suffered any of the injuries indicated in his report. I find the impairments noted by Dr. Karmy inconsistent with the mechanics of the accident. In addition, SJM has returned to substantially all of his pre-accident activities, including now working for a courier service company carrying parcels and packages varying in size and weight. Lastly, in her January 11, 2019 addendum report, having reviewed the left shoulder ultrasound, Dr. Abrams concluded that from a musculoskeletal standpoint, SJM suffered predominantly minor injuries as a result of the accident.
12I find that the medical evidence submitted by SJM confirms that his physical injuries are predominantly minor. SJM has failed to persuade me that his physical injuries he sustained as a result of the accident require treatment beyond what is provided in the MIG.
Did SJM sustain psychological impairments that would remove him from the MIG?
13For the reasons to follow, I find that SJM did not sustain psychological impairments that would remove him from the MIG.
14SJM relies on an October 4, 2018 psychological report from Dr. Mills, who diagnosed SJM with adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder, with predominant, persistent pain.
15In response, Chubb relies on the initial and addendum reports of psychologist, Dr. Chan, who initially noted that SJM denied experiencing depressed mood, psychotic symptoms, and that he demonstrated no significant distress related to the index accident. In his March 6, 2018 addendum, Dr. Chan addressed the report of Dr. Mills, noting that there was inconsistencies in SJM’s responses to Dr. Mills. When asked, SJM did not recall undergoing a psychological screening assessment. Further, Dr. Chan noted that SJM did not believe he required psychological treatment. Dr. Chan concluded that SJM is experiencing some psychological sequelae as a result of the accident, but not of such a severity that it would lead to a clinical diagnosis of a psychological disorder.
16In his second addendum, dated October 29, 2019, Dr. Chan reviewed the addendum report of Dr. Abram, the chronic pain report of Dr. Karmy, the Reconstruction Report3 and left shoulder ultrasound. Dr. Chan noted that SJM does not meet the diagnostic criteria for a clinical diagnosis, noting that his psychological ‘issues’ are a result of occupational problems – related to conflict with his employer and financial strain. Dr. Chan again concluded that SJM did not complain of symptoms of mood or anxiety, or difficulties coping with persistent pain.
17I am persuaded by the reports from Dr. Chan that SJM did not suffer any significant psychological impairment as a result of the accident. The medical evidence does not support that anything beyond possible sequelae was sustained, and SJM denied requiring psychological treatment. I see no reason to interfere with Chubb’s determination that SJM did not suffer any psychological impairment requiring treatment outside of the MIG.
Does SJM suffer from chronic pain as a result of the accident?
18The Tribunal has determined that chronic pain with functional impairment may justify removal from the MIG. SJM submits that he suffers from chronic pain as a result of the accident. He relies on the chronic pain report of Dr. Karmy, discussed above at paragraph 14.
19I find that SJM has not established that he suffers from chronic pain as a result of the accident.
20Although not required, I find that the AMA Guides criteria is a useful interpretive tool in determining chronic pain claims. SJM did not engage with three of the six criteria, as required by the Guides, as there is no evidence that he is excessively dependent on prescription drugs, he is not overly dependent on health care providers or his family, and he has not withdrawn from social, work or recreational activities because of his pain. In particular, the evidence shows a brief post-accident return to his pre-accident work, enrollment in school to be a drywaller and employment with a parcel delivery company, or that he has developed any psychosocial sequelae (or that he feels the need for psychological treatment). There is no evidence or opinion from any treatment provider that suggests SJM meets the AMA Guides criteria, likewise, his own self-reporting does not support that he meets the criteria.
21In addition, I find the video evidence of the accident persuasive in that it does not appear that SJM struck his shoulder or left knee on any part of the interior of the garbage truck. I find it difficult to believe that the minor force of the minivan could have caused any non-minor injuries to occur; certainly not the level of injury noted by Dr. Karmy.
22Lastly, SJM incurred the expense for Dr. Karmy’s report before submitting an OCF-18. In accordance with s. 38(2) of the Schedule, an insurer is not liable to pay an expense that was incurred before the submission of an OCF-18. Even if I found that SJM suffered from chronic pain as a result of the accident, SJM failed to submit an OCF-18 prior to incurring the expense, therefore, no benefit is payable.
23Consequently, I find that SJM has not established that he suffers from chronic pain as a result of that accident that justifies removal from the MIG.
Are the disputed OCF-18s reasonable and necessary?
24I have found that SJM has not met his burden of demonstrating on a balance of probabilities that removal from and treatment beyond the MIG is required. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, no interest is payable.
CONCLUSION
25SJM has not demonstrated that removal from and treatment beyond the MIG is required. The disputed OCF-18s are not reasonable and necessary and no interest is payable.
Released: September 12, 2022
__________________________
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10.
- Dr Karmy report notes the following diagnosis: chronic neuropathic left-upper limb pain, chronic mechanical left knee pain, associated with post-traumatic osteoarthritis, myofascial pain, chronic pain, sleep disorder, mood disorder with symptoms of driving and passenger anxiety as well as post-traumatic symptoms.
- Reconstruction Report, Kodsi Engineering dated July 24, 2019.