Citation: Makri v. Co-operators General Insurance Company, 2023 ONLAT 21-006706/AABS

Licence Appeal Tribunal File Number: 21-006706/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:

David Makri

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Alla Kadysh

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1David Makri, the applicant, was involved in an automobile accident on September 22, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent denied the treatment plans in dispute, because it had determined that all of the applicant’s injuries are “minor injuries” and therefore fall within the Minor Injury Guideline (MIG). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident benefits Service (Tribunal).

ISSUES IN DISPUTE

3The issues in dispute are:

i. 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?

ii. Is the applicant entitled to $1,212.11 for chiropractic services, proposed by East Sheppard Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) submitted June 26, 2019 and denied July 11, 2019?

iii. Is the applicant entitled to $2,894.33 for chiropractic services, proposed by East Sheppard Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) dated February 1, 2019 and denied March 12, 2019?

iv. Is the applicant entitled to $2,000.00 for an orthopaedic assessment, proposed by 2430307 Ontario Ltd. in a treatment plan submitted January 8, 2019 and denied January 11, 2019?

v. Is the applicant entitled to $1,603.57 for chiropractic services, proposed by East Sheppard Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) submitted May 15, 2019 and denied May 30, 2019?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG. Therefore, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans outside of the MIG limits. As no benefits are payable, the applicant is not entitled to interest.

5I find that the respondent’s denial letters dated March 12, 2019, July 11, 2019 and July 18, 2019 constitute proper notice in accordance with s. 38(8) of the Schedule.

6The application is dismissed.

ANALYSIS

The Minor Injury Guideline (MIG)

7I find that the applicant has failed to establish that his injuries are not predominantly minor injuries under the Schedule, and that they are therefore subject to treatment within the $3,500.00 limit and in the MIG.

8The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap 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 a psychological impairment or chronic pain with a functional impairment.

10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

11The applicant does not specifically address the MIG issue in his submissions. The respondent submits that the MIG issue should be considered abandoned/withdrawn, given that the Applicant did not specifically address the MIG in his written submissions. I disagree with the respondent. The applicant fails to address the issue separately, but the MIG issue is addressed by reference to the denied treatment plans which rely on the MIG limits as the basis for denial.

12The applicant’s submissions that his impairments are not predominantly minor in nature seem to be based on three reports prepared by his treating chiropractor Dr. Paul Bruni of East Sheppard Rehabilitation Clinic.

13In his Initial report dated September 27, 2018, Dr. Bruni notes that in addition to the constant headaches and neck and midback pain, the applicant also reports some psycho-emotional symptoms. He seems to suggest that those symptoms could hinder the applicant’s recovery within the MIG limits. He writes: “The patient appears to have an adverse psychological and emotional response to his injuries and a pre-disposition to having a poor prognosis for recovery.”

14However, s. 44 psychological assessment conducted by Dr. R. Dancyger, psychologist, on December 14, 2018, did not find any accident-related psychological impairment. The applicant does not dispute Dr. Dancyger’s findings. So, I accept Dr. Dancyger’s conclusion that there is no evidence of psychological impairment.

15In the progress report dated February 1, 2019, Dr. Bruni seems to suggest that the applicant should be removed from the MIG due to the chronic pain condition. He writes: “A re-examination was performed on February 1, 2019 to assess the result of the extended treatment plan. The patient is suffering from a chronic pain condition arising from the accident. The patient's injuries are chronic at this stage and the patient has not recovered in the usual healing time seen with these injuries.”

16The respondent submits that Dr. Bruni is a chiropractor and cannot make diagnoses that fall outside of his expertise. I agree with the respondent. I find that Dr. Bruni is not qualified to provide a diagnosis of chronic pain. As the applicant submits no medical report by a physician, corroborating Dr. Bruni’s diagnosis of chronic pain, I have assigned very limited weight to his progress report as it relates to that diagnosis.

17In addition, the applicant has not provided any other evidence, supporting the chronic pain diagnoses: there is no prescription summary, showing his dependence on pain medication and no evidence of his excessive dependence on health care providers, the applicant’s submission indicates that he did not and still does not have a family physician and has not attended an emergency care facility since September 23, 2018. There is also no indication that he has withdrawn from social or recreational activities due to pain.

18The third report the applicant is relying on to establish that his injuries are not predominantly minor, is an addendum report, also authored and submitted by Dr. Bruni on April 17, 2019.

19In the addendum report Dr. Bruni writes: “I have included medical documentation that clearly indicates concussion symptoms, headache and vomiting/diarrhea as a result of his motor vehicle accident and head trauma. This would remove the patient from the Minor Injury Guideline.”

20Dr. Bruni suggests that the applicant should be removed from the MIG based on the possibility of the applicant having suffered a concussion. I will explain below why I give no weight to Dr. Bruni’s addendum report.

21As mentioned above, I agree with the respondent’s submission that Dr. Bruni is a chiropractor and cannot make diagnoses that fall outside of his expertise. However, Dr. Bruni is the only medical professional who examined the applicant after the applicant’s initial visit to the emergency care facility. Yet, Dr. Bruni mentioned no concussion symptoms in his own notes. He did not mention concussion symptoms in his initial report dated September 27, 2018. He also did not mention any concussion or post-concussion symptoms in his progress report, issued February 1, 2019, upon re-examining the patient. He is relying on records of another doctor to suggest concussion, as he noted no concussion symptoms himself.

22The only medical document mentioning concussion symptoms is the report from the Trillium Health Partners physician, who examined the applicant a day after the accident. This is the document Dr. Bruni references in his addendum report as a reason to remove the applicant form the MIG. However, this document does not contain a concussion diagnosis. While the emergency room physician did make a note of the concussion symptoms reported by the applicant, he did not conclude that the applicant had suffered a concussion. The physician’s hand-written notes indicate that there was no neuro deficit and the head CT ruled negative, and the typed notes confirm that no neuro deficit was found. The applicant was ultimately diagnosed with MVA trauma, prescribed pain medication and discharged with no instructions for follow-up appointments and no referrals to concussion specialists or programs.

23As the applicant does not direct me to any additional medical evidence suggesting a concussion, and the sole physician, who recorded concussion symptoms did not diagnose one, I will assign no weight to Dr. Bruni’s opinion regarding the possibility of such diagnosis.

24The respondent obtained a S.44 Physiatry Assessment Report dated July 18, 2019 by Dr. R. Zabieliauskas, physiatrist, who noted that the claimant reported cycling and swimming, was not taking any medication and was able to continue working full-time as well as driving to Nova Scotia twice a month. Dr. Zabieliauskas concluded that the applicant’s injuries were minor, and he did not have a pre-existing condition that would prevent recovery within the MIG.

25The applicant argues that Dr. Zabieliauskas’ report is not credible and should not be given weight, as Dr. R. Zabieliauskas failed to comment on the concussion symptoms documented in the emergency room, despite the applicant’s complaints of persistent headaches.

26The respondent submits that Dr. Zabieliauskas' report is credible because it was based on a review of the medical records that were available at the time, the applicant’s self-reports of good post-accident function (including his ability to work full-time, exercise and regularly drive to and from Nova Scotia) and his medical examination of the applicant. The respondent further submits that Dr. Zabieliauskas’ is the only expert report before the Tribunal that was prepared by a medical physician specializing in physical conditions.

27I agree with the respondent. I find Dr. Zabieliauskas' report persuasive, as it is based on his own examination of the applicant and falls within his direct area of expertise.

28As a result, on a balance of probabilities, I find that the applicant has failed to establish entitlement to coverage beyond the $3,500.00 MIG limit.

Denial of the treatment plans

29As a separate argument, the applicant submitted that the respondent’s letters of denial dated February 21, 2019, March 12, 2019, July 11, 2019, and July 18, 2019 do not meet the requirements set in the s.38 of the Schedule. I find that the respondent’s denial letters constitute proper notice in accordance with s. 38(8) of the Schedule.

30According to the Case Conference Report and Order, the treatment plan denied February 21, 2019, was partially approved and subsequently resolved. For that reason, I will only address the denials dated March 12, 2019, July 11, 2019, and July 18, 2019.

31Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

32The Tribunal provided guidance with respect to the interpretation of “medical and other reasons”, in “T.F. v. Peel Mutual Insurance Company”, 2019 ONSC 5318, 2019 CanLii 39373 (ON LAT). It stated: “…an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue”.

33The applicant submitted that he finds the denial letters dated March 12, 2019 and July 11, 2019 deficient and not in accordance with s. 38(8) of the Schedule, because:

i. The respondent failed to include the specific details about the applicant’s medical condition or mentioned what were the injuries sustained by the applicant;

ii. The respondent failed to specify the exact services that were denied or approved; and

iii. The respondent failed to refer the applicant to the specific section of the Schedule the respondent relied on.

34The applicant submitted that the denial letter dated July 18, 2019 was deficient, because it was based on the invalid report by Dr. R. Zabieliauskas and also failed to specify the exact services that were denied and the specific section of the Schedule the respondent relied on.

35The respondent cited Hamad v Travelers Insurance, 2021 CanLII 64246 (ON LAT) as well as Kistenoglu v. Certas Home and Auto Insurance, 2021 CanLII 33699 (ON LAT) and submitted that an Insurer is not required to fabricate medical reasons when an applicant has not provided medical evidence, which is exclusively in their control, to support entitlement. The respondent also submitted that a denial that identified the absence of supporting medical records constitutes sufficient notice, provided it is clear and detailed enough for the applicant to understand.

36I agree with the respondent. I find the respondent’s denial letters clearly identify that the denials are based on the Minor Injury Guideline. I also find that all the letters clearly identify the absence of supporting medical records, which the insurer required. The respondent is not a medical facility. Without supporting medical documents, the insurer cannot correctly identify the applicant’s medical conditions.

37I have already addressed Dr. R. Zabieliauskas report and found it credible.

38I find that although the respondent failed to refer the applicant to the specific benefit along with the section of the Schedule the respondent relied on, that omission does not make the denial letters less clear and detailed. I find all the letters sufficient enough to allow the applicant to understand why his treatment plans were denied and to make an informed decision to either accept or dispute the decision at issue.

39As a result, I find that the respondent provided proper denials of the treatment plans in accordance with the Schedule.

Interest

40As no benefits are payable, the applicant is not entitled to interest.

ORDER

41For the reasons outlined above, I find that:

i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.

ii. The treatment plans in dispute are not payable.

iii. The applicant is not entitled to interest.