Licence Appeal Tribunal File Number: 21-002035/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:
Jasdeep Singh
Applicant
and
Belair
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Andrew Stein, Counsel
For the Respondent:
Maryam Younes, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Jasdeep Singh (the “applicant”) was involved in a motor vehicle accident on July 27, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Belair (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant submits that she suffered a mild traumatic brain injury with associated post-concussion syndrome as a result of the accident, wherein she was driving her vehicle when she was rear-ended at a traffic light. She claims entitlement to treatment outside of the Minor Injury Guideline (“MIG”) and its $3,500.00 limit, as the injuries cited above are not predominantly minor injuries as defined by the Schedule. The applicant also claims entitlement to three treatment plans and interest on any overdue payment of benefits.
3Belair asserts that the applicant has suffered minor injuries that should be treated within the MIG. The insurer further claims that the treatment plans have not been demonstrated to be reasonable and necessary. As Belair holds that no benefits are due, it also denies that interest is applicable.
ISSUES IN DISPUTE
4The following issues are in dispute:
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 of the MIG?
Is the applicant entitled to $2,862.98 for chiropractic treatment, recommended by Complete Rehab in a treatment plan/OCF-18 dated May 29, 2019?
Is the applicant entitled to $1,299.74 for chiropractic treatment, recommended by Complete Rehab in a treatment plan/OCF-18 dated November 30, 2018?
Is the applicant entitled to $17,187.30 for a multidisciplinary assessment, recommended by Complete Rehab in a treatment plan/OCF-18 dated March 3, 2021?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
5I find that:
i. The $3,500.00 limit of the MIG has not been exhausted. The applicant is entitled to the $1,278.19 remaining within the MIG, or whatever amount is remaining within the MIG at the time of the release of this decision, to be applied on the chiropractic services treatment plan in dispute dated November 30, 2018 in the amount of $1,299.74.
ii. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury.
iii. The applicant is not entitled to the remaining portion of the treatment plan dated November 30, 2018, or the entirety of the other two treatment plans in dispute, as she remains within the MIG. Accordingly, interest is not applicable as no benefits are overdue.
ANALYSIS
The Minor Injury Guideline (“MIG”)
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 a 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.”
7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG 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. The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
Has the MIG funding limit of $3,500.00 been exhausted?
8I find that the MIG limit has not been exhausted, and that the applicant is entitled to the remaining amount of $1,278.19 available within the MIG, or whatever amount is remaining within the MIG at the time of the release of this decision, to be applied as part of the treatment plan in the amount of $1,299.74 for chiropractic treatment dated November 30, 2018.
9Both parties agree that the respondent has approved $2,212.81 in medical benefits, leaving $1,278.19 remaining within the MIG limit of $3,500.00. However, only the treatment plan in the amount of $1,299.74 for chiropractic treatment dated November 30, 2018 proposes treatment inside of the MIG. The preparer of this OCF-18 checked the “Yes” box at the bottom of page two of the form, noting that the impairment for which this treatment was being sought was a predominantly minor injury.
10The other two plans in dispute propose treatment outside of the MIG. The preparers of the OCF-18s dated May 29, 2019 and March 3, 2021 checked the “No” box at the bottom of page two of each form, denoting that the treatment recommended therein was for an impairment that was not predominantly a minor injury. Therefore, the applicant’s entitlement to the benefits in these plans is contingent on a finding that her injuries are not included within the minor injury definition in the Schedule.
11For the above reasons, I find that the applicant is entitled to $1,278.19 of the treatment plan dated November 30, 2019, or whatever amount is remaining within the MIG at the time of the release of this decision.
Does the applicant suffer from injuries that warrant removal from the MIG?
12I find that the applicant has not met her burden and demonstrated on a balance of probabilities that she suffers from non-minor injuries that would warrant her removal from the MIG.
13The applicant claims that she suffers from a number of injuries not included in the definition of a minor injury in the Schedule. The Disability Certificate/OCF-3 completed by Dr. Rahim Jessa, chiropractor, dated August 1, 2018 lists just minor injuries, however. These include sprain and strain of the cervical, thoracic, and lumbar spine, along with sprain and strain of the shoulder joint, left knee, and ribs and sternum, and a temporomandibular joint disorder, headache, insomnia, and stress. The applicant claims that a mild traumatic brain disorder and associated post-concussion syndrome were not immediately diagnosed after the accident (neither of which is a minor injury as defined by the Schedule), but that both became apparent over the course of medical treatment in 2019-2021. She also alludes in her submissions to suffering from chronic pain. To demonstrate these claims, she relies primarily on the clinical notes and records (“CNRs”) of Dr. Thi N. T. Than, family doctor; CNRs from Complete Rehab; a report completed by Dr. William Kingston, neurologist, dated February 28, 2022; a pain management report from Dr. Ioulia Napolskikh, family physician, with the Rivlin Medical Group Pain Management Clinic, dated July 28, 2019; and the treatment plans in dispute.
14Belair relies largely on an insurer examination (“IE”) multidisciplinary report dated July 9, 2019. This document consists of two assessment reports completed by Dr. Charanjit Sandhu, general practitioner, and Michael Drinkwater, physiotherapist. Dr. Sandhu also filed a paper review and an addendum following his initial reports. The insurer further relies on IE reports of Dr. Neil Weinberg, psychologist, dated July 9, 2019 and June 15, 2021.
15I am not persuaded that the applicant’s medical evidence demonstrates that she suffers from injuries that entitle her to treatment outside of the MIG. Most notably, even though the applicant claims to have sustained a mild traumatic brain disorder with post-concussion syndrome, she adduces little medical support for either condition. The paramedic report from the scene of the accident records the applicant as denying that she hit her head. As already noted, the OCF-3 lists solely minor injuries. Ultrasounds and x-rays taken on May 17, 2019 show no evidence of anything outside of the scope of minor injuries. These diagnostic images are unremarkable, showing no evidence of fracture, dislocation, or arthropathy (a type of arthritis). No diagnostic images of the applicant’s head have been submitted, and based on a review of the CNRs of Dr. Than, it does not appear as if any such tests were ordered. As a result, there is no diagnostic evidence supporting the applicant’s contention that she suffered a head injury.
16Further evidence regarding the claims to a brain injury and concussion are presented in the report of Dr. Kingston, but I find his conclusions unconvincing. The applicant was not examined by Dr. Kingston until February 8, 2022, well over three years after the accident took place on July 27, 2018. To me, this raises concerns about causation, as so much time passed between the collision and the examination/report.
17Further, Dr. Kingston’s neurological tests and observations do not match his conclusions. The Montreal Cognitive Assessment that he performed on the applicant, for example, yielded normal results. In fact, all of Dr. Kingston’s testing of the applicant revealed normal results, aside from a mildly antalgic gait and reduced range of motion in her neck. Yet Dr. Kingston still makes a final diagnosis of mild traumatic brain injury with associated post-concussion syndrome, headache attributed to traumatic injury to the head, chronic migraine without aura, and menstrually-related migraine, and deems that she requires treatment outside of the MIG. In my view, this conclusion is unsupported by the physician’s own testing, and appears to be the result of an undue reliance on the applicant’s self-reporting than medical analysis. Much of the report recounts the applicant’s version of events and symptoms. And while I have no reason to believe that the applicant was in any way untruthful with Dr. Kingston, her assertions are not supported by the doctor’s objective medical evidence. As a result, the evidence presented by Dr. Kingston is not sufficient to establish that the applicant suffered from a brain injury and concussion as a result of the accident, and therefore warrants treatment outside of the MIG.
18Claims of a chronic pain condition are also not substantiated. Although the applicant focuses her submissions primarily on the aforementioned claims of head trauma, she also alludes to a chronic pain condition. Dr. Than noted in his CNRs dated June 14, 2019 that the applicant has chronic pain and referred her to Dr. Napolskikh of the Rivlin Medical Group Pain Management Clinic. Yet while Dr. Napolskikh later diagnosed the applicant with chronic pain in her shoulders and knees, the other diagnosed injuries are all of the minor variety as defined in the Schedule. Additionally, Dr. Napolskikh does not note a functional impairment as a result of the chronic pain diagnosis, which is a major factor with respect to whether chronic pain removes an applicant from the MIG. Given the above reasons, I do not find that Dr. Napolskikh’s report supports a diagnosis of chronic pain and functional impairment.
19Lastly, the applicant’s claims that injuries sustained in the accident have exacerbated a pre-existing migraine condition are not well supported. The applicant makes passing reference to a historic condition of episodic migraine headache with aura and menstrual-related migraine. However, no medical evidence has been presented regarding this pre-existing condition outside of the self-reporting of the applicant. No medical evidence has been adduced connecting this condition to the accident, either, aside from a brief comment in Dr. Kingston’s report that repeats the claims of the applicant. Again, while I have no reason to doubt the applicant’s veracity here, these claims are not bolstered by objective medical evidence. As a result, I do not give them much weight.
20I prefer the medical evidence of the respondent. Belair presents extensive documentation in the form of multiple IE reports, addendums, and paper reviews that conclude the applicant’s injuries are predominantly minor in nature and should be treated within the MIG.
21I place significant weight on the comprehensive reports of Dr. Sandhu, who examined the applicant three times in person (January 16, 2019, June 18, 2019, and June 1, 2021) and submitted a paper review and an addendum report. He found that the applicant had sustained soft-tissue injuries in the accident that warranted treatment within the MIG. Dr. Sandhu noted in his final in-person assessment report that the applicant’s headaches were largely the result of impacted wisdom teeth, a condition unrelated to the accident. Mr. Drinkwater’s functional abilities evaluation conducted on June 24, 2019 further confirmed that the applicant is not suffering from a significant impairment. His tests featured largely normal results, although he believed that some testing was affected by the self-limiting behaviour of the applicant. The physiotherapist also recorded that the applicant told him that she was “doing all activities, self-paced with utilizing load-splitting,” which in my view further indicates that the applicant was not suffering from a functional impairment that would warrant a chronic pain diagnosis and removal from the MIG. And lastly, during two IE assessments dated June 20, 2019 and May 11, 2021, Dr. Weinberg found that the applicant was experiencing no accident-related psychological impairments and thus should be treated within the MIG.
22For the above reasons, the applicant has not met her onus and demonstrated that she sustained an injury that is not defined as minor by the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
23As the applicant remains within the MIG and its $3,500.00 limit on treatment, she is not entitled to the treatment plans in dispute, or interest, with the exception noted above regarding the amount of funding still remaining within the MIG and the treatment plan dated November 30, 2018.
ORDER
24I find that:
i. The $3,500.00 limit of the MIG has not been exhausted. The applicant is entitled to the $1,278.19 remaining within the MIG, or whatever amount is remaining within the MIG at the time of the release of this decision, to be applied on the chiropractic services treatment plan in dispute dated November 30, 2018 in the amount of $1,299.74.
ii. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury.
iii. The applicant is not entitled to the remaining portion of the treatment plan dated November 30, 2018, or the entirety of the other two treatment plans in dispute, or interest on these amounts, as she remains within the MIG.
Released: June 6, 2023
__________________________
Brett Todd
Vice-Chair