Citation: Mirasol v. TD Insurance Meloche Monnex, 2023 ONLAT 20-014477/AABS

Licence Appeal Tribunal File Number: 20-014477/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:

Jonathan Mirasol

Applicant

and

TD Insurance Meloche Monnex

Respondent

AMENDED DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Ali Al Alilovic, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jonathan Mirasol, the applicant, was involved in an automobile accident on December 18, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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

ii. Is the applicant entitled to $3,805.78 for chiropractic, massage, and exercise treatment, proposed by Mediwise Healthcare Centre in a treatment plan (“OCF-18”) dated May 6, 2019?

iii. Is the applicant entitled to $1,920.53 for a psychological assessment, proposed by Harinder Mrahar in an OCF-18 dated May 27, 2019?

iv. Is the applicant entitled to $3,200.00 for shockwave and laser treatment, proposed by Mediwise Healthcare Centre in an OCF-18 dated June 19, 2019?

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

RESULT

3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

4Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18s, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.

5Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The 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.

7Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.

8It is the applicant’s burdento establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).

9The applicant submits he suffered physical and psychological impairments as a result of the accident that fall outside of the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The respondent submits the applicant has failed to meet his evidentiary onus, as he has not provided any diagnosis or evidence to establish his accident-related impairments fall outside the scope of the MIG. I agree with the respondent.

The applicant’s physical impairments fall within the definition of a minor injury

10The applicant has not established his physical accident-related impairments fall beyond the definition of a minor injury.

11The Disability Certificate (“OCF-3”) provided by Dr. K. Rakkar, chiropractor, dated January 5, 2019, confirms the applicant suffered soft-tissue physical injuries as a result of the accident. It lists impairments including: muscle strain, injury of muscle and tendon at neck level, low back pain, malaise, fatigue, dizziness, nervousness, emotional shock, abdominal and pelvic pain, chest pain, sprain and strain of the thoracic spine, sacroiliac joint, and lumbar spine The anticipated duration of his impairment was 9-12 weeks. Aside from the soft-tissue physical injuries, diagnoses of psychological impairments are outside the scope of Dr. Rakkar’s practice, as a chiropractor.

12The clinical notes and records provided establish the applicant suffered only soft-tissue injuries as a result of the accident. The emergency room records from the date of the accident indicate the applicant struck his head on the headrest of the driver’s seat, however, there was no loss of consciousness, no indication it caused him to suffer a concussion, and the vehicle’s airbags did not inflate. The applicant complained of head, neck, and shoulder pain. CT scans of the applicant’s spine and head were normal and revealed no evidence of fracture. Otherwise, the records do not list any concussion protocols undertaken, indicating there were no concerns about a potential head injury. Nor was there any referral to any specialists prior to his discharge from hospital on the same date.

13The clinical notes and records provided by Dr. S. Alshami on January 12, 2019, three-weeks post accident, demonstrate that the applicant complained of intermittent back pain, and a range of motion slightly limited due to pain. Critically, there is no other reference to any accident-related impairments in the clinical notes and records provided. There are references to lower back and shoulder pain in July and September 2021, but these reports were more than 30 months post-accident, and the pain was not attributed to the subject collision. Otherwise, the applicant did not rely on any expert report related to his physical accident-related impairments.

14I place weight upon the Physiatry Insurer’s Examination (“IE”) report by Dr. F. Ismail, physical medicine and rehabilitation specialist dated August 21, 2019. This was the sole expert report tendered in relation to the applicant’s physical impairments. Dr. Ismail noted the examination did not reveal any ongoing accident-related musculoskeletal or neurological impairment. From a physiatric perspective, the applicant sustained soft-tissue injuries to his shoulders and lumbar spine as a result of the accident, and his injuries fell within the definition of a minor injury. After reviewing additional clinical notes and records, including diagnostic imaging, Dr. Ismail confirmed his previous diagnosis in his addendum report dated December 13, 2021.

15Given the lack of compelling medical evidence related to his physical accident-related impairments and the strength of the lone expert report tendered by the respondent, I am persuaded the applicant suffered soft-tissue physical injuries as a result of the accident. These sprain-strain type injuries fall squarely within the definition of a minor injury in s. 3 of the Schedule. Thus, I am satisfied the applicant’s physical impairment may be treated within the remaining the MIG funding limits.

The applicant has not established he suffers accident-related chronic pain

16The applicant has not established he suffers chronic pain, or a chronicity of pain symptoms causing a functional impairment as result of the accident.

17I have been provided with little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on his functionality. The applicant failed to make any reference to potential chronic pain or a chronicity of pain symptoms following the accident. The clinical notes and records provide only sporadic reporting of symptoms and there is no expert report or diagnosis of chronic pain in the evidence tendered. Although not required, the applicant makes no reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”), nor the criteria for helping to determine if the applicant suffers from accident-related chronic pain.

18Critically, the clinical notes and records failed to establish the applicant met three of the six AMA Guides criteria to demonstrate that he suffers from chronic pain. Rather the records establish the applicant took Advil for pain once every two weeks, visited his family doctor sporadically for unrelated issues, did not exhibit secondary physical deconditioning due to disuse, had returned to recreational activities including playing basketball weekly, and was independent in his self-care and housekeeping. The only evidence in relation to any of the AMA Guides criteria relates to potential psychosocial sequelae following the accident.

19Based on the evidence adduced, and in consideration of the AMA Guides criteria, I find the applicant has failed to demonstrate that his injuries fall beyond the treatment limits of the MIG. The applicant has not provided sufficient medical evidence to establish that his functionality is otherwise impaired and chronic pain is the cause of his disability.

The applicant has not established he suffered accident-related psychological impairment

20Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of a “minor injury.” I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment.

21I place no weight upon the Psychological Status Evaluation Report provided by Dr. H. Mrahar, Pscyhologist dated February 4, 2019. This report was appended to the OCF-18 dated May 27, 2019 and provided a “provisional diagnosis” of adjustment disorder with mixed anxiety and depressed mood. However, this diagnosis is based wholly on the applicant’s self-reporting. There is no reference to the medical records reviewed, nor to any psychometric testing undertaken in making this psychological diagnosis. Dr. Mrahar reports significant stress contributing to emotional distress, however, the clinical notes and records indicate personal life stressors that include concerns about potential colon cancer and job-related stress. Aside from this report, the applicant does not rely on any additional expert medical report to establish any accident-related psychological impairment.

22I place weight upon the Psychology Assessment IE Report provided by Dr. Sherri MacKay, dated August 21, 2019. Following a clinical interview, and psychometric testing, Dr. MacKay concluded there was no objective and valid information to suggest the presence of a psychological disorder related to the index accident. She noted the applicant did not have any accident-related psychological symptoms and impairment to meet the specific and necessary criteria for a psychological diagnosis or disorder in order to remove him from the MIG. Otherwise, the applicant reported to Dr. MacKay that he had resumed his leisure and social activities and was independent with his self-care and housekeeping activities. In an addendum report dated December 13, 2021, following the receipt of additional clinical records including the OHIP summary, Dr. MacKay affirmed her previous diagnosis, noting the applicant did not require accident-related psychological services. I find Dr. MacKay’s reports compelling because they fall directly in accordance with the clinical notes and records provided, which were devoid of any report of psychological symptoms following the accident.

23Given the lack of any psychological symptom reporting, the weaknesses of Dr. Mrahar’s provisional diagnosis and the strength of the Dr. MacKay’s reports, I find that the applicant has not established he suffered a psychological impairment as a result of the accident. As a result, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of a minor injury.

The applicant is not entitled to the OCF-18s in dispute

24Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

The applicant is not entitled to interest

25Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

26The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. The applicant is not entitled to the disputed OCF-18s, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;

iii. The applicant not entitled to interest pursuant to s. 51 of the Schedule.