Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-005950/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:
Felicito Valdez
Applicant
and
Travelers Insurance
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Nicole Pelaia, Counsel
HEARD: By way of written submissions
OVERVIEW
1Felicito Valdez, the Applicant, was involved in an automobile accident on May 27, 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, Travelers Insurance, 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 a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit?
ii. Is the Applicant entitled to a medical benefit in the amount of $3,456.40 for physiotherapy proposed by Health-Pro Wellness in a treatment plan (“plan”) submitted on October 15, 2019?
iii. Is the Applicant entitled to a medical benefit in the amount of $2,084.61 for physiotherapy, proposed by Health-Pro Wellness in a plan submitted on March 18, 2021?
iv. Is the Applicant entitled to a medical benefit in the amount of $2,558.89 for a psychological assessment, proposed by Health-Pro Wellness in a plan submitted on October 24, 2019?
v. Is the Applicant entitled to interest on any overdue payment of benefits?
vi. Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
RESULT
3The Applicant sustained a minor injury as a result of the accident.
4The treatment plans are not reasonable or necessary.
5Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest or an award under s. 10 of O. Reg. 664.
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 burden to 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 that he suffered physical and psychological impairments that fall outside the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The Respondent submits that he has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. I agree with the Respondent for the following reasons.
Physical Impairment
10The Applicant was riding as a passenger in a vehicle that was t-boned on the driver’s side while exiting a parking lot. He did not attend hospital on the day of the accident and returned to work in construction the following day. The initial Disability Certificate (“OCF-3”), completed by Dr. A. Salayeva (chiropractor) dated May 30, 2019, identified only soft-tissue type injuries that fall squarely within the definition of a minor injury. A second OCF-3 was completed by Dr. R. Tarulli, dated March 3, 2021, and also identified the same soft-tissue type injuries as the first.
11The Applicant attended hospital three days after the accident and reported pain in his upper back, neck, and shoulders. The Applicant was discharged home the same day with a diagnosis of sprain. No medication was administered or prescribed, and recommendations were made for rest, ice, and compression.
12The clinical notes and records of the family doctor do not support the conclusion that the Applicant sustained anything more than a minor injury. He saw his family doctor, Dr. Lewi, on June 18, 2019, and complained of pain in his neck, back, and bilateral shoulders. Dr. Lewi diagnosed soft tissue injuries and prescribed Baclofen and Naprosyn. The seven visits between July 2, 2019 and November 21, 2021 were for unrelated issues, and make no reference to the accident or any musculoskeletal complaints, nor were there any refills of any pain medication. There is no record of any imaging having been performed, nor was he referred to any specialists for further evaluation.
13Physiotherapy records from Health-Pro Wellness indicate the Applicant attended treatment approximately twice a week until September 2019, and sporadically thereafter. It is difficult to reconcile the Applicant’s position that he requires treatment beyond the MIG when he has not even exhausted the $3,500.00 in funding that is available to him, four years post-accident.
14I place weight on the Physiatry Insurer’s Examination (“IE”) report by Dr. Jennifer Gordon, dated January 28, 2020. The Applicant reported experiencing pain in his left shoulder and low back immediately after the accident. He reported a 50% improvement to his symptoms, that he was independent with his personal care, and had resumed driving. He had also resumed 50% of his pre-accident housekeeping duties. He reported that he returned to work within days after the accident, and then was laid off in September 2019 due to lack of work. There was no objective evidence of any ongoing physical impairment on examination. Dr. Gordon diagnosed the Applicant with WAD 2, lumbar spine sprain/strain and queried left rotator cuff tendinopathy.
15I find that the Applicant has not discharged his burden to prove that he sustained any physical impairment beyond the MIG.
Psychological Impairment
16The Applicant has not satisfied the burden to prove that he sustained any psychological impairment resulting from the accident.
17I am persuaded by the Psychological IE report prepared by Dr. Syed, dated January 14, 2020. The Applicant reported that his mother passed away recently, in December 2019 and that he was having difficulty coping with that loss. Aside from the recent loss of his mother, he denied any psychological or emotional concerns arising from the accident. He reported feeling 40% disabled due to the accident from a physical perspective, and 0% disabled from a psychological perspective. He was not aware that a treatment plan had been submitted on his behalf. Dr. Syed opined that he was not suffering from any psychological impairment that would warrant a diagnosis per the DSM-5. The Applicant indicated that he was not interested, motivated or willing to undergo psychological therapy as he felt his concerns were more physical in nature than psychological.
18The Applicant relies on the pre-screening and psychological assessment report of Dr. Aghamoseni, dated April 4, 2021. I place little weight on these reports as they were based solely on a clinical interview and tests, and did not review any other medical evidence, such as the clinical notes and records of Dr. Lewi which show no ongoing accident-related pain and a complete absence of any psychological complaints. Dr. Aghamoseni documented that the Applicant experienced emotional issues due to his physical pain following the accident. This is inconsistent with what the Applicant’s reported to Dr. Syed over a year before.
19Overall, I am not persuaded that the Applicant’s sustained a psychological impairment that would remove him from the MIG. His purported psychological complaints, if any, do not amount to more than sequalae of a predominantly minor injury.
20The Applicant disputes further treatment plans despite not having used the funds available to him within the MIG. The Applicant submits that the treatment has been incurred, however no evidence was provided in support, such as an OCF-21. Given that the MIG funding has not been exhausted, I find that submission hard to accept.
21The Applicant submits that the physiotherapy plans in dispute were reasonable and necessary to achieve the stated goals of increased strength, increased range of motion, and to return the Applicant to his activities of normal life. There is no discussion of how his impairments affect his daily activities, what his daily activities were, how this treatment will help return him to these activities, or why the cost was reasonable, etc. Again, I rely on the Physiatry IE report by Dr. Gordon wherein the Applicant reported that he returned to work as a construction worker within days of the accident on regular hours, he was independent with his personal care, and resumed driving. While increased function may be a legitimate goal in some circumstances, the Applicant’s self-reported post-accident functional abilities do not support the fact that he required further clinic-based treatment. The clinical notes and records from the family doctor do not support the assertion that further treatment was required. Accordingly, I follow the opinion of Dr. Gordon and find that the Applicant has fallen short of his burden to prove that the physiotherapy treatment was reasonable and necessary.
22Similarly, the complete absence in the clinical notes and records of the family doctor of any psychological complaints does not support that the psychological assessment was reasonable or necessary. The Applicant also denied having any accident-related psychological impairment to Dr. Syed. He was reportedly not interested, motivated, or willing to undergo psychological therapy. On a balance of probabilities, I find that the Applicant has not discharged his burden of proof to establish that the treatment or assessment was reasonable and necessary.
Interest and Award
23Given that no benefits are owed, or payments outstanding, the Applicant is not entitled to interest or an award under s. 10 of O. Reg. 664.
ORDER
24The Applicant sustained a minor injury as a result of the accident and so he is not entitled to treatment plans outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.
25The plans in dispute are not reasonable or necessary.
26Given that there are no benefits owed, or payments outstanding, the Applicant is not entitled to interest or an award under s. 10 of O. Reg. 664.
27The application is dismissed.
Released: June 9, 2023
Kate Grieves
Adjudicator