Licence Appeal Tribunal File Number: 20-013733/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:
Michael White
Applicant
And
BelairDirect Insurance Company
Respondent
DECISION
VICE-CHAIR:
Chloe Lester
APPEARANCES:
For the Applicant:
Ben Fortino, Counsel
For the Respondent:
Samara Maharaj, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1The applicant, Michael White, was involved in an automobile accident on September 14, 2019, and sought benefits from the respondent BelairDirect (“Belair”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
2Belair denied his claim for benefits because his accident-related injuries did not meet the tests associated with them. Mr. White applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) to dispute the denials.
ISSUES
3The issues in dispute are as follows:
a. Are Mr. White’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”)?
b. Is Mr. White entitled to $3,083.46 for a physiotherapy treatment plan that was denied on November 6, 2019?
c. Is Mr. White entitled to $2,969.51 for an assessment to determine benefits that was denied on January 9, 2020?
d. Is Mr. White entitled to $2,200.00 for a psychological assessment that was denied on December 9, 2019?
e. Is Mr. White entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from September 14, 2019, and ongoing?
f. Is Mr. White entitled to interest on the overdue payment of benefits?
Result
4Mr. White’s injuries are minor. He is not entitled to any of the benefits claimed or interest.
Mr. White’s INJURIES ARE MINOR
5I find Mr. White’s accident-related injuries are minor and there is no compelling evidence to support that any pre-existing injuries prevent him from recovering within the $3,500.00 minor injury funding limit.
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly 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.”
7Once the injuries are classified as minor, the injured person is limited to treatment in accordance with the Minor Injury Guideline (MIG). An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside the minor injury definition 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 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.
8Mr. White’s submissions were insufficient in addressing why he should be removed from the MIG. They summarized the medical evidence with no arguments on the application of the law. It is well-settled that the applicant bears the onus of proof when seeking treatment beyond the MIG and he did not offer reply submissions to rebut Belair’s position. Based on his limited submissions, Mr. White argues that the Occupational Therapy Report dated December 20, 2019, disputes Belair’s conclusion that he is in the MIG. However, he fails to explain how or why. The report states that:
a. He has a pre-existing injury from a 2003 car accident that prevents maximum recovery if treated within the MIG limits;
b. He has neck injuries with radiculopathy; and
c. He has a psychological impairment.
9Belair argues that Mr. White was diagnosed with minor injuries and based on its psychological assessment he does not have any psychological impairments. Belair also relies on its musculoskeletal assessment which determined that the applicant’s physical impairments fit within the minor injury definition. Further, Mr. White did not provide sufficient medical documentation demonstrating a pre-existing injury that would prevent maximum medical recovery of his accident injuries if treatment was confined to the MIG limits.
10I find Mr. White’s injuries are minor and can be treated within the $3,500 MIG limits.
11Mr. White’s family doctor, Dr. Shaban, in the Disability Certificate dated December 18, 2019, diagnosed him with neck strain, low back pain and headaches because of the accident. Similar findings were made immediately after the accident in Dr. Shaban’s clinical note on September 17, 2019, which notes the injuries appear to be musculoskeletal and will likely resolve within weeks. The diagnosis made by Mr. White’s family doctor is in line with the definition of a minor injury under the Schedule.
12In contrast, Mr. White relies on the report from an occupational therapist (OT), Ms. Malik to prove his injuries are outside of the MIG. In that report, she relies on the diagnosis provided by Ms. Wilding, another OT, who opined that Mr. White was exhibiting signs and symptoms of neck strain with radiculopathy (WAD 3), shoulder, lumbar and hip strain, headaches, and possible concussion.
13I give little weight to this report because it is not within an OT’s scope of practice to diagnose these impairments. Therefore, I prefer the diagnosis made by Mr. White’s family doctor. It is consistent with Belair’s independent insurer’s examiner Dr. Bansal, MD, who conducted physical testing on February 14, 2020, and opined Mr. White’s injuries were minor. Both doctors found no neurological signs and the injuries were strictly musculoskeletal. Lastly, where minor injuries should resolve within a few months after the accident, I find Mr. White only complained to his family doctor about increased pain for a few months. By June 2020, nine months after the accident, Mr. White was no longer complaining about increased pain and Dr. Shaban reduced his pain medication accordingly.
14I also find Mr. White does not have an accident-related psychological impairment warranting removal from the MIG. Mr. White relies on a psychological pre-screen report dated November 13, 2019, by Ms. Mann, psychotherapist, that documented Mr. White’s self-reported psychological concerns and recommended a full psychological assessment.
15In contrast, Belair relies on the report of Dr. McDowell dated June 22, 2020, an independent psychologist examiner. During her assessment, Dr. McDowell found that even though Mr. White’s testing and self-reports note evidence of possible psychological injuries, other tests, and observations, revealed malingering and exaggeration. Consequently, Dr. McDowell could not render a psychological diagnosis.
16I prefer the psychological report of Dr. McDowell over the pre-screen report of Ms. Mann because Dr. McDowell conducted an assessment with full psychological testing and could make a diagnosis if one was found, whereas Ms. Mann is only capable of treating any potential psychological injuries.
17I find Mr. White has not produced sufficient evidence to support that he has any psychological impairment. A small amount of psychological distress would be a normal reaction to someone having experienced a car accident and subsequent physical injuries. Where psychological symptoms warrant removal from the MIG is when it is impacting functional status or where it warrants treatment. Although Mr. White reports increased psychological symptoms which he claims affect his functional status, Dr. McDowell’s testing, and observations, do not align with his self-reports. Mr. White’s tendency to exaggerate was also noted during Dr. Bansal’s assessment where he demonstrated a reduced range of motion during testing which contrasted with informal observations that showed greater functional abilities. Because of this, I do not find Mr. White’s self-reports credible.
18Lastly, I find Mr. White has not provided sufficient evidence that his pre-existing injuries prevented maximum medical recovery within the MIG funding limits.
19Mr. White relies on the Occupational Therapy report that indicates an exacerbation. Unfortunately, I give little weight to this report because this treating practitioner had no pre-accident relationship with Mr. White. Therefore, the occupational therapist’s conclusion that Mr. White had an exacerbation of his pre-accident injuries was on self-reports alone. Since I find that Mr. White’s credibility is in question, as noted above, his self-reports alone cannot be relied upon.
20While Mr. White provided evidence from his family doctor that confirmed his pre-existing chronic pain from an accident in 2003, there was no explanation from the same practitioner whether the pain was exacerbated or that these injuries prevented him from recovering in accordance with treatment in accordance with the MIG. In a Disability Certificate dated December 18, 2019, Mr. White’s family doctor, Dr. Shaban, described Mr. White as having, “similar chronic pain for more than 10 years. He has been under my care since 2014, [and] subjectively reports increased pain from [the] accident, but no objective changes were found.”
21Since Dr. Shaban found similar pain complaints to his pre-accident status, on the balance of probabilities, I cannot conclude the previous injuries were exacerbated.
22I find Mr. White’s injuries are minor, and he is limited to the $3,500.00 funding limit for treatment.
MR. WHITE IS NOT ENTITLED TO ANY OF THE DISPUTED TREATMENT PLANS
23To prove entitlement to a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
24Mr. White’s submissions fell far short of meeting his onus in proving that the treatment plans are reasonable and necessary. His submissions center around the fact that Belair has not approved any treatment plans within or up to the MIG limit. Mr. White claims entitlement to the treatment plans on the basis that the medical and rehabilitation benefits would be beneficial to recuperate from the injuries sustained in the accident.
25Belair denied the treatment plans on the basis Mr. White’s injuries are considered minor and that he should request the treatment as per s. 40 of the Schedule, on a treatment confirmation form (OCF-23).
26Mr. White did not provide a rebuttal to this argument.
27The medical evidence demonstrates Mr. White suffered from minor injuries in the accident. Therefore, treatment in accordance with the MIG is warranted. I have no submissions from Mr. White that explains how the physiotherapy treatment plan in dispute meets the test for treatment. Consequently, I conclude that the treatment plan is not reasonable and necessary.
28As the $3,500 minor injury funding limits have not been exhausted, I must consider entitlement to the other treatment plans for assessments. Mr. White is not entitled to any of the assessments as he did not address why they are reasonable and necessary. The cost of the assessment of $2,969.51 is not reasonable because it is above the maximum allowable for an assessment under the Schedule, being $2,200.00. He is also not entitled to the psychological assessment because, as decided above, Mr. White’s injuries are considered minor.
MR. WHITE IS NOT ENTITLED TO A NEB
29Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment because 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
30I find Mr. White is not entitled to a NEB as he has not provided any submissions to support why he is entitled to the benefit. Nor did he direct me to any evidence to demonstrate the differences between his functionality before or after the accident or how he meets the benefit test as described in Heath. He has also not produced a Disability Certificate that indicates he had a complete inability to carry on a normal life during the relevant post-accident period, a necessary requirement for applying for the benefit as per s. 36 (3) of the Schedule. Therefore, Mr. White is not entitled to an NEB.
ORDER
31Mr. White’s accident-related injuries are considered minor. Mr. White is not entitled to benefits claimed or interest.
Released: March 8, 2023
Chloe Lester
Vice-Chair