20-015038/AABS

Licence Appeal Tribunal File Number: 20-015038/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:

Jahzeel Gabriel

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Taser Shah, Paralegal

For the Respondent:

D. Dakota Forster, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Jahzeel Gabriel (the “applicant”) was involved in a motor vehicle accident on November 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Economical Insurance Company (the “respondent”) determined that the applicant sustained a minor injury as defined in s. 3 of the Schedule, subjected him to the Minor Injury Guideline (the “MIG”) and its $3,500.00 funding limit on treatment, and denied certain medical benefits.

3The applicant submits that he suffers from chronic pain and psychological impairments as a result of the accident, injuries that are not minor as defined in the Schedule, and that the treatment plans in dispute are reasonable and necessary. The respondent argues that the applicant’s injuries fall within the Schedule’s definition of a minor injury.

4The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

5The following issues are in dispute:

1. Are the applicant’s injuries predominantly minor as defined in s. 3(1) of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

2. Is the applicant entitled to $2,632.90 for psychological services, recommended by Medex Assessments in a treatment plan/OCF-18 (“treatment plan”) dated February 6, 2020?

3. Is the applicant entitled to $2,394.50 for chiropractic services, recommended by Alexmuir Wellness Centre in a treatment plan dated July 3, 2020?

4. Is the applicant entitled to $4,283.42 for psychological services, recommended by Medex Assessments in a treatment plan dated December 23, 2020?

5. Is the applicant entitled to $2,486.00 for a virtual driver’s reintegration evaluation, recommended by Medex Assessments in a treatment plan dated December 23, 2020?

6. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

PROCEDURAL ISSUES

6With one exception, I am allowing the totality of the written submissions of both parties. This includes the initial submissions and reply of the applicant and both the response and sur-reply of the respondent. I am, however, striking the applicant’s addition of an issue in dispute to his initial submissions, as this issue was agreed by both parties to have been resolved in the case conference report and order (“CCRO”) with regard to this application, dated May 25, 2021.

7In his initial written submissions, the applicant omitted mention of the MIG issue in dispute, as well as the two OCF-18s dated December 23, 2020. These issues are listed in the CCRO that set this matter down for a written hearing. The applicant did, however, submit medical evidence related to all treatment plans in dispute in his initial submissions. The applicant also raised an issue of $200.00 owing for the unpaid balance of an OCF-18 for physiotherapy services, which was listed in the original application to the Tribunal but was noted in the CCRO as having been resolved.

8The respondent submitted in its initial written response that the omitted issues should be regarded as no longer in dispute. The respondent also argued that the additional OCF-18 should not be considered as the parties confirmed that it had been resolved during the case conference and it was not listed on the CCRO.

9In the applicant’s reply, he did not explain the absence of issues from his initial filing, although he confirmed that all issues from the CCRO remained in dispute. The applicant submitted new and additional arguments supporting his position on the MIG issue as well as the treatment plans in dispute. The applicant did not mention the $200.00 outstanding balance on the physiotherapy OCF-18 that had been added to his initial submissions.

10As a result, the respondent filed a sur-reply arguing that the applicant’s reply was improper with regard to the MIG and the two OCF-18s dated December 23, 2020 in dispute, and that they should be struck due to “impermissible case splitting.” This sur-reply also addressed the applicant’s reply submissions, if it were to be decided that the reply submissions of the applicant would be allowed to stand. Although the respondent noted that standard Tribunal procedure requires a formal motion to allow for the filing of a sur-reply when one is not listed in a CCRO, it did not bring a motion and instead explained in the sur-reply that it did not follow this process in order to expedite the written hearing.

11After reviewing all of the submissions provided, I am allowing the reply submissions of the applicant. I do, however, agree with the respondent and strike the portion of the applicant’s original submissions referring to the $200.00 outstanding amount of the physiotherapy services in the OCF-18 noted above. This issue was noted as resolved on the CCRO. I further infer that the applicant does not contest the matter, as he does not refer to it in his reply, submitted after the objection was raised in the response of the respondent.

12I am allowing the sur-reply of the respondent. Any perceived unfairness with regard to case-splitting in the reply submissions of the applicant has been ameliorated by the sur-reply submissions.

13As a result, with the one noted exception, I am relying on the totality of the submissions provided by both parties.

RESULT

14I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. Given that the applicant’s injuries are minor and the $3,500.00 MIG limit applies and has been exhausted, the treatment plans in dispute are not payable.

iii. 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)

15The 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 also defined in the Schedule.

16Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a limit of $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate that they had a pre-existing condition, documented by a medical practitioner, before the accident which prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury, such as chronic pain or psychological impairment.

17It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities. In the current matter, the applicant has exhausted the MIG treatment limit. Although the precise amount of treatment funded by the respondent is not specified in the submissions before me, correspondence sent by Economical to the applicant dated March 10, 2020 notes the approval of treatment plans up to the $3,500.00 MIG limit. As I have no submissions from the applicant disputing this, I accept that the MIG limit has been exhausted.

Are the applicant’s injuries minor as defined in the Schedule?

18I find that the applicant’s injuries and sequelae fall within the Schedule’s definition of a minor injury and do not warrant removal from the MIG.

19There is limited evidence to support the applicant’s claims of non-minor injuries or that he is suffering from chronic pain as a result of the accident. The Disability Certificate/OCF-3 dated December 10, 2019 that he relies upon lists only soft-tissue and related injuries such as whiplash associated disorder (WAD 2) with neck pain, sprain and strain of the shoulder and spine, headache, and an unspecified non-organic sleep disorder, all of which come under the definition of a minor injury in the Schedule.

20Clinical notes and records (“CNRs”) of the applicant’s family physician, Dr. Melina Hong, also indicate that he suffered minor injuries in the accident. At no point does she diagnose the applicant with chronic pain or psychological issues warranting a referral to a psychiatrist or psychologist. These CNRs are also incomplete. In the submissions before me, they seem to start with the record of an appointment on June 15, 2020, even though the written submissions of both the applicant and respondent refer to earlier appointments that cannot be found in the submitted CNRs. However, the absence of these earlier records of Dr. Hong is inconsequential with regard to the MIG dispute, as the applicant makes no claim that the family physician diagnosed the applicant with chronic pain or a psychological illness. As a result, I infer that nothing pertinent to the MIG was omitted as a result of the missing CNRs.

21Furthermore, the CNRs from 2020 that I was able to review show that the applicant made significant progress with regard to his physical injuries. On August 3, 2020, Dr. Hong lists the applicant’s pain as 1-2 out of 10 in his lower and upper back, that he was not experiencing pain while resting most of the time, that he had no issues with ambulation, that his sleep was much better, and that his mood was normal—although he was experiencing frustration with “the legal team” (presumably a reference to this appeal). Dr. Hong’s notes from this date conclude with a list of earlier symptoms that mirror those in the OCF-3 and the last line is “overall improving symptoms.” There is then no mention of the applicant’s accident or accident-related injuries from August 3, 2020 until the last CNR of February 18, 2021.

22I am not persuaded by a psychological assessment completed by Dr. Silvia Tenenbaum, psychologist, that resulted in a report dated December 28, 2020. Dr. Tenenbaum diagnoses the applicant with generalized anxiety disorder, despite providing little rationale to support such a diagnosis or to connect these symptoms to the accident. She notes that the applicant claimed feeling anxious and worried every day, but “about a variety of topics and concerns,” not specifically the accident. She records that the applicant claimed to experience significant anxiety when driving and mild anxiety when riding in a car, which is not consistent with the applicant reporting that he was working as a ride-share driver when admitted to Markham Stouffville Hospital on August 27, 2020 with pericarditis. Dr. Tenenbaum takes an odd approach in dealing with this illness, as well. She lists the applicant’s pericarditis (described also as heart and chest area discomfort) as symptoms related to the accident, even though there is no claim that pericarditis has any connection with the accident. It also seems clear that Dr. Tenenbaum is aware that the applicant spent a significant amount of time in 2020 seeking medical attention for his heart issue. Strangely, Dr. Tenenbaum also does not report asking the applicant if he was experiencing any anxiety regarding this heart-related illness. This is a perplexing omission, given the seriousness of such a condition, and given that the applicant sought medical help for this illness on a number of occasions, as demonstrated in CNRs and hospital records.

23Additionally, I assign limited weight to Dr. Tenenbaum’s conclusion that the applicant is suffering from prominent physical pain due to what she describes as non-verbal behaviour during his examination. These unsubstantiated beliefs—apparently based solely on visual impressions and intuition—do not form the basis for a convincing diagnosis.

24I prefer the insurer examination (“IE”) report of Dr. James Murray, psychologist, dated March 4, 2021, and an addendum dated October 12, 2021. These detailed reports review the applicant’s overall health situation in a much more thorough manner than Dr. Tenenbaum’s report. Dr. Murray fully addresses the applicant’s driving abilities post-accident, and elicits answers from the applicant showing that he views himself as a skilled driver who knows how to parallel park, make appropriate turns, and generally behave in a proper manner behind the wheel of a car. Dr. Murray noted that he saw no evidence of nervousness with regard to the applicant speaking of driving or riding in a car. It is also telling that Dr. Murray records the applicant as saying that most of his pain complaints had been resolved as of the time of his assessment. In conclusion, Dr. Murray found no evidence in his interview and testing of the applicant to support the diagnosis of any psychological disorder. He summed up by writing that treatment within the MIG would be most appropriate for the applicant. Dr. Murray stood by these opinions in his addendum report. I see no reason to disagree with Dr. Murray’s assessments or his rationale.

25For the reasons outlined above, I find that the applicant has sustained predominantly minor injuries as a result of the accident and remains subject to the MIG. There is insufficient evidence to demonstrate that the applicant suffers from chronic pain or a psychological impairment.

The Treatment Plans

26Given that the $3,500.00 MIG treatment limit has been exhausted, no additional analysis is required to determine if the treatment plans in dispute are reasonable and necessary.

Interest

27As there are no overdue benefits, it follows that the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION AND ORDER

28I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. Given that the applicant’s injuries are minor and the $3,500.00 MIG limit applies and has been exhausted, the treatment plans in dispute are not payable. As no benefits are overdue, it follows that interest is not applicable.

29The application is dismissed.