Licence Appeal Tribunal File Number: 21-015726/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.
Between:
William Kin
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
James Schmidt, Counsel
HEARD:
By Written Submissions
OVERVIEW
1William Kin (the “applicant”) was involved in an automobile accident on September 12, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Wawanesa Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. Although neither party specifies in submissions the amount of treatment that has been incurred under the MIG, I note that the treatment plans in dispute have been partially approved up to the full $3,500.00 limit of the MIG. As a result, I accept that the MIG limit is exhausted. The applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans.
ISSUES
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 MIG limit?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 12, 2019 to September 12, 2020?
iii. Is the applicant entitled to $1,309.70 ($3,424.70 less $2,115.00 approved) for chiropractic treatment, proposed by Mediwise Health Care Centre in a treatment plan/OCF-18 submitted on September 19, 2019 and denied December 21, 2021?
iv. Is the applicant entitled to $1,969.88 ($3,354.88 less $1,385.00 approved) for chiropractic treatment, proposed by Mediwise Health Care Centre in a treatment plan/OCF-18 submitted on December 23, 2019 and denied January 7, 2020?
v. Is the applicant entitled to $3,084.14 for chiropractic treatment proposed by Mediwise Health Care Centre in a treatment plan/OCF-18 submitted on August 5, 2020 and denied August 19, 2020?
vi. Is the applicant entitled to $1,920.53 for a psychological assessment proposed by Mediwise Health Care Centre in a treatment plan/OCF-18 submitted on August 14, 2020 and denied August 28. 2020?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. As the applicant remains within the MIG, and as the MIG limit of $3,500 has been exhausted, he is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to payment of an NEB, as he has not demonstrated a complete inability to carry on a normal life as a result of the accident.
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.
ANALYSIS
The Minor Injury Guideline (“MIG”)
5Section 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.”
6An 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 they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from their minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
7The applicant submits that he should be removed from the MIG due to the physical and psychological impairments he sustained as a result of the accident. The applicant relies on a clinical note dated September 18, 2019 from his family physician, Dr. Bhavna Thakersee, a Disability Certificate (OCF-3) dated September 24, 2019 completed by Dr. Bohdan Osoba, and a Psychological Status Evaluation Report dated November 13, 2019 completed by Dr. Harinder Mrahar.
8In response, the respondent submits that the applicant’s soft tissue injuries were correctly classified under the MIG and denies that the applicant sustained a psychological impairment as a result of the accident.
The applicant did not sustain injuries that warrant removal from the MIG
9I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.
10I find that the applicant’s medical evidence does not demonstrate that he suffers from physical injuries that cannot be adequately treated within the MIG. The clinical notes and records (“CNRs”) of Dr. Thakersee, for example, detail soft tissue sprains and strains. On September 18, 2019, Dr. Thakersee diagnosed the applicant with muscle spasm, whiplash, and tenderness to the parascapular and paralumbar muscles. Dr. Thakersee recommended physiotherapy, massage, rest, and the use of a cervical pillow and heating pad – all appropriate for the treatment of soft tissue injuries that fall inside the MIG. This is also the only time the applicant complained to Dr. Thakersee about accident-related injuries. As a result, Dr. Thakersee’s soft-tissue diagnosis was not superseded. The lack of additional consultation for accident-related impairments with Dr. Thakersee further convinces me that the applicant’s injuries fall within the MIG.
11In addition, I am not persuaded that the applicant’s OCF-3 indicates that he should be removed from the MIG. The list of injuries noted by Dr. Osoba in the OCF-3 is not consistent with his finding in the treatment plan dated December 17, 2019, which was submitted on December 23, 2019. Indeed, in this treatment plan, Dr. Osoba indicated that his clinical impressions were that the applicant was suffering from cervical sprain/strain, lumbar sprain/strain, and thoracic sprain/strain which are all captured by the Schedule’s definition of minor injury.
12Moreover, the applicant has not demonstrated that he sustained a psychological impairment as a result of the accident.
13I do not find the applicant’s argument and medical evidence that he sustained a psychological impairment as a result of the accident persuasive. According to the Psychological Status Evaluation Report, Dr. Mrahar provisionally diagnosed the applicant with suffering from an adjustment disorder, with mixed anxiety and depressed mood. However, this provisional diagnosis is heavily based on the applicant’s self-reporting. Further, there is no objective medical evidence to support the applicant’s claim that he has post-accident anxiety, sleep disturbance, or any other psychological impairment. Also, there are no contemporaneous records documenting any psychological complaints or impairments, and the applicant did not report any psychological complaints to Dr. Thakersee.
14Accordingly, I agree with the respondent that the evidence supports that the applicant sustained soft tissue injuries within the definition of a minor injury under s. 3 of the Schedule. As such, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
The Treatment Plans
15Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute.
The Non-Earner Benefit (“NEB”)
16I am not persuaded that the applicant has demonstrated that he qualifies for an NEB pursuant to the Schedule.
17Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.
18At the time of the accident, the applicant was a 79-year-old retired mechanic, receiving pension benefits from the Canada Pension Plan. He submits that since the accident, he has been substantially unable to carry on a normal life due to difficulty taking care of himself, cleaning, cooking, engaging in regular physical activity, and socializing with friends and family. He also claims that he is substantially unable to perform his housekeeping and home maintenance tasks. The applicant primarily relies on the CNRs of Dr. Thakersee, an OCF-3, and a report prepared by Dr. Mrahar to support his NEB claim.
19In response, the respondent notes that the applicant only complained of his soft tissue injuries to Dr. Thakersee on one occasion, and that he did not complain of his accident-related injuries during subsequent consultation, which is inconsistent with impairments associated with the NEB. The respondent further submits that the applicant does not meet the test for NEB.
The applicant is not entitled to an NEB
20I find that the applicant is not entitled to an NEB of $185.00 per week for the period of October 12, 2019 to September 12, 2020 as he has not demonstrated that he suffers from a complete inability to carry on a normal life.
21I do not find the applicant’s evidence and submissions regarding his entitlement to NEB persuasive. The applicant has not proven that a continuous disability exists which prevents him from engaging in his pre-accident activities. As noted above, the applicant consulted Dr. Thakersee on several occasions following the accident, but he only complained of accident-related impairments on September 18, 2019. As such, there is no evidence in Dr. Thakersee’s records of any ongoing accident-related impairment that would meet the NEB test of a complete inability to carry on a normal life.
22Further, there is insufficient evidence before me for the applicant to meet the NEB test. While Dr. Osoba indicated in an OCF-3 that the applicant suffers from a complete inability to carry on a normal life, there is no medical analysis to support this conclusion, and there is no meaningful analysis of the applicant’s pre-accident and post-accident activities, as required by Heath. Although Dr. Mrahar’s report outlines some of the applicant’s pre-accident and post-accident activities, Dr. Osoba did not rely on Dr. Mraha’s report in preparing the OCF-3, and Dr. Mrahar did not express an opinion regarding whether the applicant meets the NEB test.
23For the reasons detailed above, I find that the applicant has not demonstrated that he suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, he is not entitled to an NEB.
Interest
24Given that there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
25For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plans in dispute.
iii. The applicant is not suffering from a complete inability to carry on a normal life as a result of the accident, and is not entitled to an NEB.
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.
26The application is dismissed.
Released: November 27, 2023
Ludmilla Jarda
Adjudicator