Licence Appeal Tribunal File Number: 21-009074/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:
Ahmad Shuaib Miri
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Amanda Marshall
APPEARANCES:
For the Applicant: Kameliya Stancheva, Paralegal
For the Respondent: Farzana Merchant, Counsel
HEARD: In Writing
OVERVIEW
1The applicant was involved in an automobile accident on November 25, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied the treatment plans in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
2In his submission, the applicant requested to add the issue of costs under Rule 19 of the Licence Appeal Tribunal Rules. Under Rule 19.1, the request for costs may be made to the Tribunal in writing, at any time before the decision or order is released. As the applicant requested to add costs within their written submission and as a decision has not been released, I find it is appropriate to add costs to the proceeding.
ISSUES IN DISPUTE
3The following issues are in dispute:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and subject to treatment within the $3,500.00 limit of the MIG?
If the applicant’s injuries are not considered to be predominantly minor,
i. Is the applicant entitled to $1,582.15 for chiropractic services, proposed by Toronto Medical Centre in a treatment plan dated January 4, 2021?
ii. Is the applicant entitled to $2,585.37 for chiropractic services, proposed by Toronto Medical Centre in a treatment plan dated December 9, 2020?
iii. Is the applicant entitled to $1,748.05 for a bio psychosocial assessment, proposed by Toronto Medical Centre in a treatment plan dated January 4, 2021?
iv. Is the respondent liable to pay an award under s.10 of Regulation 664 because it was unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the applicant entitled to his costs because the respondent’s conduct or course of conduct has been unreasonable, frivolous, or vexatious or the respondent has acted in bad faith?
RESULT
4The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, it is unnecessary to consider the reasonableness and necessity of the treatment plans or the issue of interest.
5The applicant is not entitled to an award under s. 10 of Regulation 664.
6The applicant is not entitled to a costs award.
ANALYSIS
The Minor Injury Guideline (“MIG”)
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 minor injuries 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.”
8An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
9The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. The applicant submits that he should be removed from the MIG, and that his treatment plans should be approved. He relies on the disability certificate dated December 9, 2020 completed by Dr. Mir-Reza Navari, chiropractor, the clinical notes and records (“CNRs”) of Dr. Sarit Shuldiner, family physician from March 17, 2021 and May 11, 2021, and five Tribunal decisions.
10In response, the respondent submits the applicant’s injuries fall within the MIG. The respondent relies on the s. 44 Physiatry Insurer Examination (“IE”) report dated May 17, 2021 by Dr. John Heitzner, physiatrist, the psychology IE assessment dated December 9, 2022 by Dr. Rod Day, psychologist. the executive summary of Dr. Charanjit Sandhu, physician, dated May 20, 2021, and the physiatry IE report of Dr. Alfonse Marchie, physiatrist, dated December 9, 2022.
Has the applicant sustained injuries that warrant removal from the MIG?
11I 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 as a direct result of the accident. He remains in the MIG and is subject to the MIG limit.
12I find that the applicant’s submissions to be unpersuasive. The applicant refers the Tribunal to three medical documents: the disability certificate dated December 9, 2020, and two entries from his family doctor’s clinical notes and records stating that the applicant has pain. Most of the applicant’s submission reference Tribunal decisions but the applicant failed to provide an explanation on how these decisions are relevant to the applicant’s situation.
13Upon my review, the disability certificate indicates the applicant suffered from soft-tissue injuries in the accident. Dr. Navavi also recorded that the applicant suffers from the following: non-organic sleep disorders, irritability and anger, acute pain, malaise and fatigue, and post-traumatic stress disorder. However, he specifically mentions that these conditions have been identified but are not diagnosed. A chiropractor does not have the expertise, nor is it within their scope of practice to diagnosis these conditions.
14The applicant submits that he frequently visited his family physician post-accident. However, the applicant only provided two medical notes from Dr. Shuldiner and not his complete file. The first note is from four months post accident. It mentions the applicant had an MVA and has neck pain. The doctor prescribed physiotherapy and psychological services. There is a small notation beside the request for psychological services, but the doctor’s handwriting is illegible. The next entry of May 11, 2021 states the reason for the visit is musculoskeletal pain.
15The respondent provided a copy of the applicant’s family doctor’s clinical notes and records from 1990 to August 2022. Except for the two notations in March and May 2021, I find that the applicant did not make any further accident-related complaints to his family doctor.
16I prefer the medical evidence of the respondent. The respondent provides three IE reports and an executive summary that each conclude the applicant’s injuries are predominantly minor in nature and should be treated within the MIG.
17In May 2021, Dr. Heitzner diagnoses the applicant with cervical strain – WAD II, thoracolumbar strain, left elbow contusion and left knee strain. Dr. Heitzner comments that the applicant has no ongoing musculoskeletal limitations or restrictions as a result of the accident-related soft tissue injuries. Dr. Day finds that the applicant does not meet the criteria for a DSM 5 psychological disorder related to his MVA. He also notes that the during the assessment, the applicant expressed that he was not experiencing psychological symptoms for which he requires mental health treatment. Dr. Sandhu provides an executive summary after reviewing Drs’ Heitzner and Day’s IE assessments. He agrees with his colleagues and finds the applicant’s injuries were within the MIG.
18In December 2022, more than two years after the subject accident, Dr. Marchie concludes that the applicant sustained soft tissue injuries and does not have any functional limitations or physical restrictions as a direct result of the accident.
19One reference for psychological services and two references to pain within six months of the accident, in my view, do not warrant removal from the MIG.
20Accordingly, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Are the Treatment Plans Reasonable and Necessary?
21Having determined that the applicant has not demonstrated that removal from the MIG is warranted, and as the $3,500.00 MIG limit has been exhausted, a reasonable and necessary analysis of the treatment plans is not required.
Is the applicant entitled to interest?
22The applicant is not entitled to interest as I do not find that any payments are overdue.
Is the respondent liable to pay an award?
23Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.
24As I have concluded that the applicant remains within the MIG and is not entitled to the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed.
25Accordingly, the respondent is not liable to pay an award.
Is the applicant entitled to costs?
26Rule 19.1 of the Licence Appeal Tribunal Rules provides that a party may make a request to the Tribunal for costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.
27The applicant did not provide particulars to support his claim. Therefore, I find no evidence that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith to support a costs award.
CONCLUSION
28The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
29As the applicant remains in the MIG, and as the MIG limits have been exhausted, he is not entitled to the treatment plans in dispute, nor interest.
30The applicant is not entitled to an award under s. 10 of Regulation 664.
31The applicant is not entitled to costs.
Released: December 19, 2023
Amanda Marshall Adjudicator