Licence Appeal Tribunal File Number: 21-003382/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:
Richardo Whilby
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nishant Nayak
APPEARANCES:
For the Applicant:
Tanzeela Ansari, Counsel
For the Respondent:
Brendan Sheehan, Counsel
HEARD:
By way of written submissions
BACKGROUND
1Richardo Whilby, ("Applicant"), was involved in an automobile accident on September 21, 2018, and sought benefits from The Personal Insurance Company, ("Respondent"), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016), ("Schedule").
2The respondent denied the applicant's claims, because it determined that all of the applicant's injuries fit the definition of a "minor injury" as prescribed by s. 3(1) of the Schedule and, therefore, are subject to the Minor Injury Guideline ("MIG"). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal") for resolution of the dispute.
ISSUES
3The issues in dispute for this hearing are:
Are the Applicant's injuries predominantly minor as defined in s. 3(1) of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit?
Is the Applicant entitled to a medical benefit in the amount of $731.93 for assisted devices recommended by Princeton Hills Medical Assessments Inc. in a treatment plan dated March 4, 2019?
Is the applicant entitled to a medical benefit in the amount of $2,569.40 for chiropractic and massage services recommended by Mackenzie Medical Rehab Centre in a treatment plan dated September 5, 2019?
Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
4I find that the Applicant sustained a minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment. As the MIG limits have been exhausted, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary. The applicant is also not entitled to an award or interest, and the application is dismissed.
ANALYSIS
The MIG
5The 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.
6Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
7The Applicant submits that he suffers from injuries and impairments, identified as sprain and strains to his back, shoulder and spine, psychological injuries and concussion etc. as a result of the collision. He also submits, there is an exacerbation of his pre-existing blood pressure issues, which preclude his recovery if subject to the MIG. The Respondent disagrees and submits that the Applicant has failed to discharge his burden that he sustained an impairment beyond a sprain and strain as a result of the subject accident or that he has a pre-existing condition that would require treatment beyond the MIG limits.
8I find all the physical injuries of the applicant fall under the section 3 of the Schedule.
Does the applicant have pre-existing condition that warrants removal from the MIG?
9Pursuant to section 18(2) of the Schedule, the funding limit for minor injuries does not apply if the Applicant can demonstrate that he had a documented pre-existing medical condition which would prevent him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit.
10The standard for being excluded from the MIG on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
11I find no evidence demonstrating that the Applicant's blood pressure issues were exacerbated by the accident or will preclude his recovery from a minor injury if subject to the MIG. Indeed, the Applicant has a history of high blood pressure. However, the clinical notes and records ("CNRs") of Dr. Atalla, family physician, show no worsening of his condition and no evidence it would prolong his recovery. In fact, Dr. Atalla's CNRs show that his blood pressure notations were much higher before the accident that after.
12Moreover, a review of Dr. Atalla's CNRs do not mention of any impact that high blood pressure would have on the applicant's recovery. Similarly, the CNRs from Dr. S. Kajbaf, nephrologist, make no reference to the accident. Instead, the Applicant admitted to Dr. Kajbaf that he does not follow a good diet and he eats high salt foods and consumes caffeine. Ultimately, the Applicant has failed to submit medical documentation prepared by a health practitioner that shows his blood pressure was made worse as a result of the subject accident and it will prevent maximal recovery, which is the requirement under s. 18(2) for removal from the MIG.
Did the applicant sustain a psychological impairment or concussion as a result of the accident warranting removal from the MIG?
13The Applicant claims he suffers from psychological injuries, including anxiety etc., and a concussion, which would take him out of the MIG. For the following reasons below, I don't accept that the Applicant suffers from these impairments.
14The Applicant relies on disability certificates prepared by Dr. Laura Tummonds, chiropractor, and Dr. Preety Somal, chiropractor, dated September 25, 2018, and September 5, 2019, respectively. They diagnosed the Applicant with issues such as radiculopathy, acute stress reaction, other anxiety disorders, nervousness, irritability and anger; and nausea with vomiting, in addition to soft-tissue injuries. However, the diagnosis of psychological injuries here holds no weight because such injuries fall outside the scope of a chiropractor's practice. Absent these disability certificates the Applicant has provided no compelling evidence that he suffers from a psychological condition as a result of the subject accident.
15The Applicant's submissions refer to further evaluation and treatment for post-concussive syndrome, but there is no evidence he sustained a concussion. Following the accident, the Applicant was taken to Trillium Hospital by ambulance. He had no loss of consciousness, there were no neurological or motor deficits and he had a GCS score of 15 according to the ambulance call report. Diagnostic imaging was completed which found the Applicant had sustained no fractures and no pre-vertebral soft-tissue swelling. The only finding of note was mild degenerative disc disease within the mid to lower cervical spine.
16Accordingly, I find that the applicant has failed to prove on a balance of probabilities that he sustained an impairment that is not captured by the definition under s. 3 of the Schedule. For these reasons, he has not demonstrated that removal from the MIG is warranted.
17The Applicant sustained a predominantly minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit on treatment. The disputed treatment and assessment plans proposed goods and services which exceed the funding limit. Thus, an analysis on whether the treatment and assessment plans in dispute are reasonable and necessary is unnecessary.
Award
22Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
23As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.
Interest
24As there are no benefits owing, no interest is payable.
CONCLUSION
24The Applicant sustained a predominantly minor injury as a result of the subject accident and is subject to the $3,500.00 funding limit on medical and rehabilitation benefits.
25The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside the MIG and beyond the funding limit.
26No interest is payable because no payments went overdue.
Released: March 6, 2023
Nishant Nayak
Adjudicator