Citation: Williams v. The Co-operators, 2022 ONLAT 20-009277/AABS

Licence Appeal Tribunal File Number: 20-009277/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:

Christopher Williams

Applicant

and

The Co-operators

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Stanislav Bodroy, Counsel

HEARD:

By Way of Written Submission

BACKGROUND

1Christopher Williams, (“the applicant”), was involved in an automobile accident on December 22, 2017 and sought benefits from The Co-operators, (“the respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The respondent denied the applicant’s claims because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

2The following issues are to be decided:

a. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the MIG?

b. Is the applicant entitled to a medical benefit in the amount of $2,148.32 for physiotherapy services proposed by Midland Wellness Centre in a treatment plan (“OCF-18”) dated February 18, 2019?

c. Is the applicant entitled to a medical benefit in the amount of $1,852.70 for physiotherapy services proposed by Midland Wellness Centre in an OCF-18 dated August 22, 2019?

d. Is the applicant entitled to a medical benefit in the amount of $1,995.32 for other goods and services proposed by Midland Wellness Centre in an OCF-18 dated August 3, 2018?

e. Is the applicant entitled to a medical benefit in the amount of $2,443.80 for physiotherapy services proposed by Midland Wellness Centre in an OCF-18 dated October 18, 2018?

f. Is the applicant entitled to interest in any overdue payment of benefits?

RESULT

3I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plans in dispute are not payable; and

c. The applicant is not entitled to interest.

ANALYSIS

4The applicant was a seated passenger on a Toronto Transit Commission bus, which was involved in an accident with a taxicab. The applicant was jerked from his seat, but did not fall to the ground, nor did he receive medical attention on the day of the accident.³

5For the reasons outlined below, I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.

MINOR INJURY Guideline (THE “MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

8An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁴

Did the applicant suffer physical injuries that warrant the removal from the MIG?

10I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.

11The applicant’s injuries are predominantly soft-tissue injuries. Clinical notes and records, (“CNRs”), from the Rouge Valley Health System Emergency Room revealed degenerative changes in the spine, and an x-ray of the cervical spine revealed no fractures, dislocations or soft tissue swelling.⁵ Following the examination the applicant was discharged. Similarly, the CNRs by Dr. Ian Gliklich, family physician, note only soft-tissue injuries. In a CNR dated January 11, 2018, the applicant reported pain in his neck left shoulder, and headaches and Dr. Gliklich diagnosed him with a strain⁶. The Disability Certificate (“OCF-3”) prepared by Dipal Modi, physiotherapist, also identifies predominantly soft-tissue injuries. These include: whiplash, sprain and strain of the cervical and thoracic spine, and headaches.⁷ The OCF-18 dated May 2, 2018, submitted by Rashmi Moraskar, physiotherapist of Midland Wellness, also confirmed that the applicants injuries were minor.⁸

12The applicant suggests that the subject matter before the Tribunal resembles J.T. v. Aviva General Insurance.⁹ Despite the reference there was no analysis or explanation to demonstrate a resemblance of the fact pattern or findings.

13I prefer the opinions in the insurer’s examination, (“IE”), assessment reports, which conclude that the applicant sustained predominantly soft-tissue injuries. Dr. Raymond Zabieliauskas, physiatrist, issued a report dated December 10, 2018. The report noted that the applicant reported headaches, pain in his left shoulder and lower lumbar area. The report also noted that the applicant reported that he was fully independent in his personal care tasks, working regular hours at work, playing with his kids and preparing meals. Dr. Zabieliauskas examined the applicant and found that his range of motion in the neck, upper extremities, thoracic spine, lumbar spine, and lower extremities were full and without pain. Dr. Zabieliauskas concluded that the applicant sustained minor injures from which he fully recovered.

14Dr. Zabieliauskas maintained the opinion that the applicant’s injuries are a minor injury. On February 19, 2019, Dr. Zabieliauskas rendered an addendum report on confirming that his opinion of the applicant remained unchanged as there had been no new medical information from Dr. Gliklich or any other medical professional that would lead him to alter his medical opinion.

15I place weight upon the conclusions rendered by Dr. Gliklich and Dr. Zabieliauskas both medical professionals concluded that the applicant suffered minor strain type injuries. I note that at no point, did Dr. Gliklich refer the applicant to any specialists for investigations or treatment. Lastly, I am persuaded further as both the OCF-3 and the first OCF-18 lists physical strain-type injuries. Taken together, I find that the applicant has not demonstrated that his accident-related injuries warrant a removal from the MIG.

Did the applicant suffer psychological impairments that justify the removal from the MIG?

16An applicant 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.

17In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments. I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

18I find that the Applicant has not met his onus to demonstrate that he sustained a psychological injury as a result of the accident.

19The psychological symptoms reported by the applicant do not constitute a psychological injury. The April 25, 2018 and January 26, 2021 notes by Dr. Gliklich, in which the applicant reports flashbacks of the accident, at best, appear to be sequalae of his soft-tissue injuries. On May 15, 2018, the applicant was prescribed medication for a sleep disorder, it is unclear if this was attributed to the accident or the applicants witnessing of a shooting years earlier.

20The respondent argues that the Tribunal has repeatedly confirmed that a psychological diagnosis must be supported by corroborating evidence¹⁰ and the applicant failed to provide such evidence.

21I find that there is no supportive evidence provided by the applicant that demonstrates that he suffered any significant psychological impairments as a result of the vehicle accident. Dr. Glicklich never diagnosed the applicant with a psychological condition, despite the reports of flashbacks. The applicant never received any psychological treatment or referrals and was never referred to a specialist for any psychological symptoms. Taken together, I find no compelling evidence to demonstrate that the applicant suffered a psychological injury that is not captured in a minor injury.

Chronic Pain

22For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

23I find that the applicant failed to provide evidence demonstrating that he developed or suffers from chronic pain resulting from the accident. In addition, the applicant also failed to refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).¹¹ The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims.

24I find no evidence demonstrating that the applicant has a chronic pain condition. The applicant confirmed to Dr. Zabieliauskas during the IE that he fully recovered from his minor injuries and did not have any residual pain.¹² While he is not require to do so, I note that the applicant has no expert report to opine that he has a chronic pain syndrome.

25The slip and fall incident at work on September 30, 2020 is unrelated to the accident. The applicant visited Dr. Gliklich that day and presented with various pain symptoms following the slip and fall.¹³ However, I find that this incident and the resulting injuries are not related to the subject vehicle accident and do not remove the applicant from the MIG. The CNRs of Dr. Gliklich made no reference to the vehicle accident, and there I no suggestion that the accident-related injuries led to the slip and fall.

26The evidence suggests that the applicant is not impaired by pain. The applicant returned to work full-time following the accident, is back to daily living, and independent with his personal care tasks. Furthermore, the applicant went three years without mentioning any accident-related pain to his family physician, was not on or prescribed any medication and was never referred to a specialist.

27For all the above reasons, the applicant has not met her onus in proving on a balance of probabilities that his accident impairments do not fit within the MIG.

THE DISPUTED TREATMENT PLANS

28The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

29Given that there are no overdue payments of benefits, the applicant is not entitled to interest under s. 51 of the Schedule.

ORDER

30The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Physiatry Report, Dr. R. Zabieliauska, dated December 10, 2018.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5CNR, Dr. Saeed Malik, Rouge Valley Health System, dated December 23, 2017.
6. 6CNR, Dr. Gliklich, dated January 11, 2018.
7. 7OCF-3 Dipal Modi, dated January 9, 2018
8. 8OCF-18, Rashmi Moraskar, physiotherapist, dated May 2, 2018.
9. 92019, ONLAT 18-003238/AABS.
10. 10K.K. v. Aviva General Insurance Company, 2020 CanLII 12739, and H.I. v. Belairdirect, 2020 CanLII 69930.
11. 11American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
12. 12Insurers Examinaiton, Dr. R Zabieliauskas, dated December 10, 2018.
13. 13CNR, Dr. Gliklich dated, October 2 2020-January 14, 2021.