Licence Appeal Tribunal File Number: 21-002335/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:
Donatas Antonkunathas
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Michael Ferrante, Paralegal
For the Respondent:
Stanislaw Bodrov, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Donatas Antonkunathas, the applicant, was involved in an automobile accident on August 20, 2019, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent did not make written submissions on or before deadline imposed by the Tribunal.
3The Case Conference Report and Order (CCRO) dated July 20, 2021, set out deadline for submissions and evidence by both applicant and the respondent. The respondent was to provide submissions and evidence to the Tribunal by February 28, 2022. On February 9, 2022, the respondent filed a notice of motion requesting that the Tribunal adjourn the hearing to allow the respondent time to respond to new medical evidence. The applicant did not consent and had already filed initial submissions with the Tribunal. The Tribunal granted the motion, providing the respondent until June 3, 2022, to make submissions and evidence.
4The applicant filed a reconsideration motion on February 26, 2022, which was denied by the Tribunal.
5On June 3, 2022, the respondent filed another notice of motion to the Tribunal requesting that its responding submission deadline be extended until June 20, 2022. The applicant did not consent. On June 13, 2022, the Tribunal approved the extension to allow the respondent to submit written submissions by June 27, 2022.
6The last submission by the respondent was for a notice of motion on June 3, 2022. The respondent failed to make submissions on the matter of this written hearing, by the extended deadline.
7As of March 27, 2023, the Tribunal had no record of written submissions by the respondent. On March 27, 2023, the Tribunal advised the respondent that submissions were past due. The respondent submitted reply submissions on April 5, 2023.
8I find that the respondent failed to comply with a Tribunal order which set an extended deadline of June 27, 2022, to file written submissions with the Tribunal.
9By failing to comply with the extended deadline, the respondent has failed to abide by the previous Order, which falls directly within the ambit of Rule 9.4. In my view, inclusion of the late submissions, of approximately 9 months would compromise the procedural fairness of the hearing pursuant to Rule 3.1(a). I find that the respondent’s reply submissions shall be excluded from the record.
ISSUES
10The issues in dispute are:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $92.87 ($1,339.00 less $1,246.13 approved) for physiotherapy services, recommended by Mississauga Active Physiotherapy in a treatment plan (“OCF-18”) dated November 19, 2019?
iii. Is the applicant entitled to $2,252.00 for physiotherapy services recommended by Mississauga Active Physiotherapy in an OCF-18 dated March 11, 2020?
iv. Is the applicant entitled to $2,200.00 for other goods and services of a medical nature, recommended by Mississauga Active Physiotherapy in an OCF-18 dated July 22, 2020?
v. Is the applicant entitled to $3,142.40 for physiotherapy services recommended by Mississauga Active Physiotherapy in an OCF-18 dated September 17, 2020?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
11I find that the applicant has demonstrated that his accident-related impairments warrant removal from the MIG. The OCF-18s in dispute are reasonable and necessary and interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
12The 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 [WAD], contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
14An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
15It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 MIG cap on a balance of probabilities.
The applicant suffers from physical injuries and chronic pain
16I agree with the applicant’s submissions that based on the medical evidence submitted he should be removed from the MIG as result of his physical injuries and chronic pain.
17I am satisfied based on the clinical notes and records (“CNRs”) of Dr. Victor Figurado, family doctor, that reveal that the applicant attended his office eleven times between the accident and January 20, 2021, with head, neck, left knee and back pain. Dr. Figurado diagnosed the applicant with musculoskeletal pain. An MRI of the applicant’s left knee, dated July 9, 2020, reveal a mild femoral & tibial chondral thickening.
18Dr. Figurado referred the applicant to Dr. Sennik, orthopaedic surgeon, for his left knee pain. Dr. Sennik’s consultation note of September 15, 2020, indicates a diagnosis of mild chondromalacia patella, and no surgery would be required.
19An orthopedic report dated August 28, 2021, by Dr. Tajedin Getahun, orthopaedic surgeon, diagnosed the applicant with myofascial strain of the thoracolumbar spine, right shoulder strain with ultrasound evidence of internal derangement, and left knee contusive injury with posttraumatic patellofemoral syndrome. Dr. Getahun opined that all are a direct result of the motor vehicle accident, and the applicant’s injuries do not fall within the MIG as they have not resolved within the expected time course for uncomplicated soft tissue injuries.
20I am satisfied that the applicant suffers from chronic pain. I am persuaded by the consultation report of Dr. Michael Belcon, rheumatologist, dated September 17, 2021. The report provides a diagnosis of chronic pain syndrome stating chronic pain disorder, myofascial pain syndrome, and somatic symptom-related disorder.
21I am also swayed by the chronic pain report by Dr. Nayyar Razvi, physician, dated October 26, 2020. The report diagnosed the applicant with, among other things, chronic pain disorder and possible mood disorder. The report indicates that the applicant has mild to moderate limitations with his activities of daily life including, bathing, toileting, dressing, feeding, functional mobility, home management, meal preparation and sexual activity. The report provides that the applicant is suffering from chronic pain and therefore his injuries fall outside of the MIG.
22Therefore, I find that the applicant has met the test for removal from the MIG based on physical injuries and chronic pain that requires treatment outside of the MIG for maximal medical recovery.
Disputed Treatment Plans
The Applicant is entitled to $92.87 ($1,339.00 less $1,246.13 approved), $2,252.00 and $3,142.40 for physiotherapy services
23I find that the applicant has established that the OCF-18s for physiotherapy services are reasonable and necessary.
24Each of the OCF-18s have the goal of pain reduction, increased range of motion, and increased strength with the objective of returning to activities of normal living. Regular attendance in a multi-disciplinary clinic, compliance to home exercises, education regarding pathology and course of rehabilitation were recommendations.
25I am satisfied by the orthopedic report of Dr. Getahun that the applicant’s physical impairments have resulted in his substantial inability to perform essential daily tasks. Physiotherapy interventions in a multidisciplinary supervised setting was recommended by Dr. Getahun to optimize the applicant’s outcome. This is further supported by Dr. Razvi who opined that the applicant has mild to moderate limitations with his activities of daily life.
26For these reasons, I find that the applicant has established that these OCF-18s for physiotherapy services are reasonable and necessary and the applicant is entitled to the total amount of $5,487.27, i.e. the sum of $92.87, $2,252.00, and $3,142.40 described in the issues in dispute.
The Applicant is entitled to $2,200.00 for other goods and services
27I find that the applicant has established that the OCF-18 for a chronic pain assessment is reasonable and necessary.
28Dr. Razvi submitted the OCF-18 proposing a chronic pain assessment to identify barriers to recovery and treatment options. I found that the applicant suffers from chronic pain based on the reports of both Dr. Nayyar and Dr. Belcon.
29For these reasons, I find that the applicant has established that the OCF-18 for a chronic pain assessment is reasonable and necessary and the applicant is entitled to the amount of $2,200.00.
Interest
30Section 51 of the Schedule states that interest is due on the payment of overdue benefits.
31As I have found benefits are payable, it follows that interest applies on any overdue payments of benefits.
ORDER
32I make the following order:
i. The applicant’s injuries are not predominately minor, and he should not be subject to the $3,500.00 limitation of the MIG.
ii. The applicant is entitled to $92.87 for physiotherapy services, proposed by Mississauga Active Physiotherapy in OCF-18 dated November 19, 2019.
iii. The applicant is entitled to $2,252.00 for physiotherapy services, proposed by Mississauga Active Physiotherapy in OCF-18 dated March 11, 2020.
iv. The applicant is entitled to $3,142.40 for physiotherapy services, proposed by Mississauga Active Physiotherapy in OCF-18 dated September 17, 2020.
v. The applicant is entitled to the $2,200.00 for a chronic pain assessment proposed by Mississauga Active Physiotherapy in OCF-18 dated July 22, 2020.
vi. The applicant is entitled to interest on any overdue payment of benefits.
Released: May 2, 2023
__________________________
Monica Ciriello
Vice-Chair```