E. A. v. Security National Insurance Company, 2023 CanLII 2692

Citation: E. A. v. Security National Insurance Company, 2023 ONLAT 20-015074/AABS

Licence Appeal Tribunal File Number: 20-015074/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:

E. A.

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Anita Goela

APPEARANCES:

For the Applicant: Ioulia Logoutova, Paralegal

For the Respondent: Sean Cheskes, Counsel

HEARD: In Writing December 19, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on December 31, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

ISSUES

2The parties participated in a case conference on June 30, 2021 and agreed to the issues to be determined in this appeal. The issues are set out in Case Conference Report and Direction. They are as follows:

i. Are the applicant's injuries predominantly minor injuries as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and the Minor Injury Guideline?

ii. Is the applicant entitled to $3,635.00 for chiropractic services, proposed by Aqua Wellness Centre in a treatment plan/OCF-18 ("plan") dated August 27, 2019?

iii. Is the applicant entitled to $3,080.00 for physiotherapy services, proposed by Aqua Wellness Centre in a plan dated September 25, 2020?

iv. Is the applicant entitled to $3,380.00 for physiotherapy services, proposed by Aqua Wellness Centre in a plan dated June 30, 2020?

v. Is the applicant entitled to $3,080.00 for a psychological assessment, proposed by Aqua Wellness Centre in a plan dated August 5, 2020?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the following:

a. The applicant is subject to the MIG.

b. The applicant is not entitled to the four disputed treatment plans above.

ANALYSIS

Proper Denials

4Section 38(8) of the Schedule requires that the insurer identify the goods, services, assessments and examinations described in the treatment and assessment plan that it agrees to pay for and the notify the applicant of the medical and all other reasons that the insurer does not agree to pay for goods, services, assessments and examinations described in the treatment and assessment plan. If the insurer fails to give notice in compliance with subsection (8), then the insured is prohibited from taking the position that the applicant has an injury to which the MIG applies.

5The applicant submits that the respondent's denial letters were deficient. Specifically, he submits that they do not identify the treatment plan, what goods or services were denied, notice of s.44 examination, and medical and other reasons for denial.

6I have reviewed the denials and find that they identified the treatment plan by provider and date, inform the applicant that his injuries were determined to be minor and that his treatment is subject to the MIG. The denial letters after the s.44 assessments also reference those assessments and the findings of the assessors. I do not find that the denial letters fail to give notice in compliance with s. 38(8).

Minor Injury Guideline

7Section 38 of the Schedule sets out the framework for the treatment of minor injuries. I must determine whether the applicant's impairment is minor and whether the applicant suffers from a pre-existing medical condition that prevents him from reaching maximal medical recovery if he is subject to the $3,500.00 monetary limit in the MIG.

8Section 3 of the Schedule provides that a "minor injury" is defined 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."

9The applicant has incurred $3,345.00 of medical and rehabilitation benefits to date. The applicant's medical evidence is as follows: 3 clinical notes and records (CNRs) from his family physician, a psychological pre-screen and CNRs from Aqua Wellness Centre and an x-ray. The respondent has also provided a s.44 assessment from a physiatrist (including an addendum) and a s.44 assessment from a psychologist.

10The family doctor CNRs are dated March 15, 2019, April 25, 2019 and July 17, 2021. The 2019 CNRs mention pain in the applicant's back, head and ear. The 2021 CNR appears to be a summary of self-reported pain and does not appear to include an examination.

11The x-ray dated August 6, 2021 indicates that the applicant's lumbar spine is within normal limits, his joints appear normal, and that there is no evidence of fracture.

12I do not find that the CNR's of the applicant's family physician and x-ray demonstrate that the applicant has a physical impairment that is not minor in nature resulting from the accident.

13I also do not find that the applicant provided any evidence that he had a pre-existing medical condition.

14I have reviewed the s.44 physiatry assessment of Dr. Ko and addendum. Dr. Ko finds that the applicant's injuries are minor.

15The language of the MIG expressly does not include psychological impairment. If I find that the applicant suffers from a psychological impairment, I should remove him from the MIG.

16The psychological pre-screen is dated August 5, 2020. The applicant also attended a s.44 psychological assessment dated August 21, 2020.

17In the pre-screen, Dr. Aghomohseni quotes the applicant's sleep disturbances as follows: "I wake up and my mind is racing and I can't get back to sleep." The quote does not reference the accident as being the reason why the applicant's mind is racing. From the pre-screen, it is unclear whether the accident is the cause of the applicant's psychological impairment.

18In the s.44 psychological assessment, conducted 2 weeks later by Dr. Moshiri, the applicant indicates that he is "psychologically 100%". He further states that he does "get irritated sometimes and anxiety which is manageable. I have no depression. I have no fear of driving."

19I find that the evidence in the two psychological reports does not support that the applicant suffers from a psychological impairment caused by the accident.

20On balance, I do not find that the applicant has demonstrated that he has a psychological impairment resulting from the accident.

CONCLUSION AND ORDER

21The applicant is subject to the MIG.

22The applicant is not entitled to the medical benefits in dispute.

23Interest is not owing.