Licence Appeal Tribunal File Number: 21-003909/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:
Rashim Pabla
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Marc Golding, Counsel
For the Respondent:
Danielle Ralph, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rashim Pabla, the applicant, was involved in an automobile accident on August 23, 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, Certas Home and Auto Insurance Company, 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 $1,920.53 for psychological services, proposed by Inline Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) submitted May 27, 2019?
iii. Is the applicant entitled to $3,191.25 for chiropractic services, proposed by Inline Rehabilitation Centre Inc. in a plan submitted June 12, 2019?
iv. Is the applicant entitled to $2,070.16 for psychological services, proposed by Inline Rehabilitation Centre Inc. in a plan submitted July 8, 2019?
v. Is the applicant entitled to $3,948.91 for chiropractic services, proposed by Inline Rehabilitation Centre Inc. in a plan submitted February 11, 2019?
vi. Is the applicant entitled to $2,486.00 for a Chronic Pain Assessment, proposed by A&B Medical Assessments in a plan submitted January 12, 2021?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven injuries that warrant removal from the MIG.
ANALYSIS
The applicant’s injuries are predominantly minor in nature
4Section 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.”
5An insured 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. In all cases, the burden of proof lies with the applicant.
6The applicant submits that they should be removed from the MIG due to psychological impairments and chronic pain. The applicant relies on a psychological assessment from Sabrina Simmons (assessor) and Valery Kleiman (Registered Psychological Associate) and a chronic pain report from Dr. M. Abounaja (physician).
7The applicant visited their family physician, Dr. K. Myat on August 29, six days following the accident, however aside from informing Dr. Myat about the accident, there were no accident-related injuries reported. The only report during that visit was that the applicant had hurt their shoulder the day prior while performing heavy lifting. The respondent notes that there are no references to any accident-related injuries or impairments in Dr. Myat’s records which cover a period ending May 16, 2019.
8The applicant underwent a section 25 psychological assessment by Ms. Simmons and Mr. Kleiman on June 24, 2019. The respondent has noted that the report shows the applicant’s scores as minimal in the Beck Depression Inventory, mild on the Beck Anxiety Inventory and a score well below that of the clinical rehabilitation-clinic population on the Accident Fear Questionnaire. There was no evidence on the objective assessments conducted that the applicant suffers from a psychological impairment resulting from the accident.
9The applicant also underwent a section 25 chronic pain assessment with Dr. Abounaja on January 18, 2021. I assign little weight to this report as it contradicts evidence and submissions presented before me. This report indicates that the applicant experienced pain immediately following the accident. This is inconsistent with paragraph 6 of the applicant’s written submissions which state the applicant did not feel pain immediately, but pain developed the following morning. This is further at odds with Dr. Myat’s clinical notes and records which stated no injuries from the accident, and that the applicant’s shoulder pain was the result of lifting a heavy object five days later. With the three contradicting accounts, I give weight to the clinical notes of Dr. Myat in my decision. There appear to be no injuries sustained in the accident, and therefore the applicant does not suffer from chronic pain that would warrant removal from the MIG.
The applicant is not entitled to any treatment plans or interest as the MIG limits have been reached.
10As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.
11As there are no overdue benefits, the applicant is not entitled to interest.
ORDER
12For the reasons above I order:
i. The applicant is subject to the MIG;
ii. The applicant has no entitlement to benefits or interest; and
iii. The application is dismissed
Released: June 6, 2023
__________________________
Julian DiBattista
Vice-Chair