Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-005975/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:
Sivakumar Balasubramaniam
Applicant
and
Certas Home and Auto
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Anthony Naples, Counsel
HEARD: In Writing
OVERVIEW
1Sivakumar Balasubramaniam, the applicant, was involved in an automobile accident on December 28, 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, Certas Home and Auto, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The 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 $3500.00 limit of the Minor Injury Guideline (“MIG”)? Note: The parties agree the MIG limits have not been exhausted. The remaining amount is $589.42.
ii. Is the applicant entitled to $2,674.32 for physiotherapy services, proposed by York Wellness Center in a plan dated August 18, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4The cost of the disputed treatment plan exceeds the remaining funds available in the MIG. Therefore, it is not required to conduct an analysis of whether or not the treatment plan is reasonable and necessary.
5Consequently, the applicant is not entitled to the disputed treatment plan, or interest.
ANALYSIS
The Minor Injury Guideline
6I find that the applicant’s injuries are minor as defined by the Schedule.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”
8An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
9Here, the applicant submits that his injuries are not minor and include a pre-existing condition of back and shoulder pain. He relies on the clinical notes and records (CNRs) of his general practitioner (“GP”) Dr. Mahesan, and the OCF-18 for physiotherapy services. The applicant’s low back pain was first recorded on January 24, 2019, by Dr. Mahesan. The back pain was still present at a subsequent appointment in April 2019. The applicant highlights that Dr. Mahesan documented back and shoulder pain prior to the accident, making them a pre-existing condition. The OCF-18 from York Wellness Centre, dated August 18, 2019, identifies the applicant’s accident-related complaints as headaches, low back pain, injury of unspecified muscle and tendon at the shoulder/upper arm, and impingement syndrome of the shoulder.
10For its part, the respondent submits that the applicant sustained only soft tissue injuries after the accident, and did not need pharmacological intervention, radiological testing, or a referral to any specialists. Regarding a pre-existing condition, the respondent further submits that the medical evidence is sparse and points to the following:
i. There are only a few entries in Dr. Mahesan’s CNRs that mention the accident over a period of five years, with only one pre-accident reference to back pain, and two for shoulder pain.
ii. No back or shoulder pain is mentioned by the applicant to his GP at his two visits preceding the accident.
iii. The OCF-18 completed by physiotherapist (“PT”) Kim identifies the applicant’s injuries as minor with no pre-existing injuries that would prevent recovery within the MIG.
11While it is true that the CNRs of Dr. Mahesan record that the applicant had some back and shoulder pain prior to the accident, the respondent rightly points out that the notations were few in number and spread out over a lengthy period of time. Further, the OCF-18 indicates the opposite – that the applicant has no pre-existing injuries. To be removed from the MIG under s. 18(2), the applicant must provide compelling evidence of a pre-existing condition that was documented by a health practitioner before the accident and that will prevent maximal recovery from the minor injury if the person is subject to the limit under the MIG. The applicant has not provided such evidence.
12With regard to the denial letter, the applicant submits that the respondent did not specifically address his pre-existing condition in the denial, thereby failing to provide adequate medical reasons pursuant to s. 38(8) of the Schedule. The applicant points to the Tribunal’s finding in 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), wherein the insurer was found to have provided medical reasons for a denial, although not meaningful ones. In my view, the facts in the cited case are not directly applicable to the case at hand. In 16-003316/AABS v Peel the insurer had failed to describe the applicant’s medical condition in sufficient detail and did not reference the applicant’s medical condition. In contrast, here, I find that the respondent provided medical reasons that accurately reflect the descriptions of the applicant’s injuries in the CNRs of Dr. Mahesan and on the OCF-18 by PT Kim. For example, both healthcare practitioners note back pain and shoulder issues. However, neither describes his complaints as a pre-existing condition that prevent his recovery within the MIG. Thus, the respondent cannot be faulted for indicating that the “medical documents on file indicate your injuries are minor” and they “do not indicate any pre-existing injuries”.
13The respondent submits that its denial of the claim for physiotherapy was compliant with s. 38(8), and I agree. It was made within ten business days, identified the applicant’s status within the MIG, provided medical reasons for the denial based on the description of the applicant’s injuries by his GP and PT (e.g., low back pain, headache, injury of unspecified muscle/tendon at shoulder and upper arm level), and requested additional medical records for further evaluation. These additional records were reviewed, and the applicant was informed that there was nothing in those records to warrant removal from the MIG due to a pre-existing condition.
14For the reasons outlined below, I find that the applicant’s injuries are minor, and he remains subject to the MIG funding limit of $3,500.00:
i. First, the medical evidence is consistent with a soft tissue injury. Following the accident, the applicant did not seek immediate medical attention, did not stop working or require a Disability Certificate, and there were no serious injuries documented by his GP. Further, the OCF-18 from PT Kim indicates that the applicant’s injuries are within the MIG.
ii. Second, the applicant claims that his pre-accident back and shoulder pain are a pre-existing condition that warrants removal from the MIG. He argues that his complaints were documented by Dr. Mahesan in early 2018, prior to the subject accident. However, there is nothing in Dr. Mahesan’s CNRs or PT Kim’s OCF-18 to indicate that his condition was exacerbated by the accident or represented an impairment to his recovery if kept within the MIG. On the contrary, the OCF-18 specifically states that there is no such pre-existing condition.
iii. Lastly, the applicant’s submission that the denial letter was insufficient is not supported by the evidence. The respondent’s denial of the treatment plan was timely, clear, and provided medical reasons based on the description of the injuries in the CNRs and OCF-18. These injuries – such as headache, low back pain, and injury of unspecified muscle and tendon – all fall within the definition of minor under s. 3 of the Schedule.
15In conclusion, the applicant has not demonstrated that his injuries warrant removal from the MIG. His documented injuries fall within the definition of minor under the Schedule, his healthcare providers have not documented a pre-existing condition that would prevent his maximal recovery under the MIG, and the respondent’s denial letter met the requirement of s. 38(8).
16I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries treatable within the MIG.
Interest
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
18No interest is payable.
ORDER
19The applicant remains in the MIG and is subject to the $3,500.00 limit on treatment.
20The applicant is not entitled to the treatment plan for physiotherapy services, and no interest is payable.
Released: November 21, 2023
Bonnie Oakes Charron
Adjudicator