20-011512/AABS

Licence Appeal Tribunal File Number: 20-011512/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:

Mayuran Sriskandarajah

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Jeremy Magence, Counsel

For the Respondent:

Brittanny Tinslay, Counsel

HEARD:

By way of written submissions

BACKGROUND

1Mayuran Sriskandarajah (“the Applicant”) was involved in an automobile accident on October 10, 2018, and sought benefits from Certas Home and Auto Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016), (“the Schedule”). The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute for this hearing are:

(1) Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the $3,500.00 funding limit for a minor injury and in the Minor Injury Guideline (“the MIG”)?

(2) Is the applicant entitled to a medical benefit in the amount of $2,745.23 for chiropractic services proposed by Spine Solutions Rehab Centre in a treatment plan/OCF-18 (“plan”) dated January 30, 2019?

(3) Is the applicant entitled to a medical benefit in the amount of $3,021.30 for physiotherapy services proposed by Spine Solutions Rehab Centre in a plan dated April 12, 2019?

(4) Is the applicant entitled to a medical benefit in the amount of $3,121.05 for chiropractic services proposed by Spine Solutions Rehab Centre in a plan dated May 3, 2019?

(5) Is the applicant entitled to a medical benefit in the amount of $1,969.62 for physiotherapy services proposed by Spine Solutions Rehab Centre in a plan dated February 6, 2020?

(6) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant sustained a minor injury as defined in section 3 of the Schedule.

4The Applicant is entitled to payment for the goods and services that relate to the treatment and assessment plan dated January 30, 2019, that was incurred during the period of non-compliance, plus interest pursuant to section 51 of the Schedule.

5Otherwise, the Applicant is not entitled to the plans claimed because they propose goods and services that are not contemplated in the MIG and exceed the $3,500.00 funding limit for medical and rehabilitation benefits for minor injuries.

BACKGROUND

6Applicant was the driver of a vehicle stopped at a red light that was struck from behind in a chain-reaction collision as a result of two other vehicles colliding. No emergency services attended at the scene of the accident and the Applicant reported no injuries at the collision reporting centre.

7The Applicant met with his family physician, Dr. A. Lambotharan, the following day, October 11, 2018. The clinical notes and records (“CNRs”) from Dr. Lambotharan are hand-written and mostly illegible. It appears that Dr. Lambotharan diagnosed the Applicant with sprain and strain injuries to the chest wall/rib cage, cervical spine, lumbar spine, and shoulder.

ANALYSIS

MINOR INJURY GUIDELINE (“MIG”)

8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

9Pursuant to section 18(2) of the Schedule, the $3,500.00 funding limit for minor injuries does not apply if the Applicant can demonstrate that he had a documented pre-existing medical condition which would prevent him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit.

10The onus is on the Applicant to establish on a balance of probabilities that he sustained an injury that is not a minor injury. Alternatively, he must demonstrate that he has a pre-existing health condition which would preclude his recovery from a minor injury if subject to the MIG and the $3,500.00 funding limit on treatment.

11The Applicant submits that his injury is not a minor injury because he sustained “physical injuries… to his cervical and lumbar spine (bones)…” and because he has pre-existing degenerative changes in his back. He contends that these are not injuries to the muscles, tendons, and ligaments, nor are they clinically associated sequelae of soft tissue injuries. He further submits that he suffers from chronic pain and that his medical records support a diagnosis of headache syndrome, adjustment disorder, depressive disorder, anxiety disorder, and sleep disorders, which are all outside of the minor injury definition.

12The Respondent disagrees and submits that the Applicant sustained soft-tissue injuries. It adds that the Applicant provided no evidence of a pre-existing health condition which was documented prior to the accident that will prevent him from achieving maximal recovery if subject to the MIG. The Respondent also submits that there is no evidence the Applicant was diagnosed with chronic pain and that the psychological injuries identified in the treatment plans and disability certificate are done so by a chiropractor, who is not qualified to diagnose such injuries.

13In addition to the above, the Applicant submits that the Respondent has failed to comply with the notice provisions in section 38 of the Schedule, which has an impact on whether the MIG applies. I will address each of the disputes in turn.

The Applicant’s Injuries are Primarily a Minor Injury

14I find that the Applicant sustained a minor injury as a result of the accident.

15As noted above, it appears that Dr. Lambotharan’s CNRs indicate that the Applicant sustained sprain and strain injuries. From what I can draw from the CNRs, Dr. Lambotharan’s initial diagnosis was that the Applicant sustained sprain and strain injuries of the chest wall/rib cage, cervical spine, lumbar spine, and shoulder. Dr. Lambotharan’s CNRs include medical notes that state the Applicant is unable to work: a note dated October 11, 2018 states that the Applicant is unfit to work for two weeks; a noted dated October 24, 2018 states that the Applicant is suitable for a trial of regular duties (at work); and a note dated November 1, 2018 states that the Applicant is unfit for work for four to six weeks due to a motor vehicle accident. Yet, none of the aforementioned notes indicate that the Applicant sustained anything more than a minor injury as a result of the subject accident. The entirety of Dr. Lambotharan’s CNRs include no reference to an injury that is not included in the minor injury definition in section 3 of the Schedule. Further, there is no indication that Dr. Lambotharan diagnosed the Applicant with anything other than sprain and strain injuries, which are within the minor injury definition.

16The x-rays dated October 15, 2018, demonstrate that the Applicant sustained a minor injury. X-rays of the shoulder, lumbosacral spine, and cervical spine all showed normal bone structure or bones and disc spaces to be normal. The x-rays identify mild degenerative changes at C5-C6 and loss of cervical lordosis, which are pre-existing and/or soft-tissue injuries, respectively.

17The disability certificate by Dr. D. Hua, chiropractor, dated October 16, 2018, identifies predominantly minor injuries. In short, the document notes that the Applicant suffers from “other headache syndromes”, whiplash disorder, sprain/strain of the shoulder, and rotator cuff syndrome as the most predominant injuries and sequelae. The Applicant provided no other information on what headache syndrome he suffers from, nor why headache syndrome is not a soft-tissue injury or sequalae of his soft-tissue injuries. The remaining injuries are predominantly sprain and strain injuries, which are included in the minor injury definition.

18I place no weight on the psychological symptoms identified by Dr. Hua because psychological injuries are outside the scope of a chiropractor. Indeed, Dr. Hua noted that the Applicant also suffered “reaction to severe stress, and adjustment disorders,” “recurrent depressive disorder,” “other anxiety disorders,” “nervousness,” and “other sleep disorders”, but these are predominantly psychological symptoms which fall outside of the scope of a chiropractor. These symptoms are not corroborated anywhere else in the Applicant’s medical records. Thus, I place no weight to the psychological symptoms identified in the disability certificate and find that it demonstrates that the Applicant sustained predominantly soft tissue injuries, which fall within the minor injury definition provided in section 3 of the Schedule.

Pre-Existing Condition

19I find that the Applicant has not provided compelling evidence that he has a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent him from achieving maximal recovery if subject to MIG and the $3,500.00 funding limit for a minor injury.

20There is no evidence that the Applicant suffered from a pre-existing health condition that would preclude his recovery if subject to the MIG. The Applicant directs me to the x-rays dated October 15, 2018 to support his claim, however that information is from a period of time after the subject accident. Whereas the test requires that the pre-existing health condition is documented prior to the accident. Further, there is no evidence, such as a comment or recommendation, from the Applicant’s family physician or treating chiropractor, that indicates the Applicant’s pre-existing mild degenerative changes would impair his ability to recover if subject to the MIG. In fact, Dr. Hua noted no prior disease or condition that affected the Applicant’s ability to perform his day-today activities.

Chronic Pain

21Chronic pain conditions are not included in the minor injury definition. In order to establish that he has a chronic pain condition, the Applicant must demonstrate that his pain causes a functional impairment which adversely affects his well-being. A diagnosis of chronic pain, absent a functional impairment due to pain, is insufficient to establish a non-minor injury.

22I find that the Applicant has not demonstrated that he suffers from a chronic pain condition.

23The Applicant provided no evidence demonstrating that he suffers from chronic pain syndrome or a chronic condition which adversely affects his well-being. Dr. Lambotharan’s CNRs, where legible, include no diagnosis of chronic pain syndrome and fail to document a functional impairment due to pain. Similarly, the medical certificate for employment insurance sickness benefits, dated December 17, 2018, includes no diagnosis of chronic pain or indication that the Applicant is disabled due to a chronic pain condition. This document was completed about two months following the accident and does not address whether he developed a chronic pain condition. The CNRs from the treatment facility end as of May 2019 and include no compelling evidence demonstrating that the Applicant suffers a functional impairment as a result of pain.

The Respondent is not Required to Conduct an Insurer’s Examination

24I find that the Respondent is not required to conduct an insurer’s examination pursuant to section 44 of the Schedule in order to conclude that the Applicant is not entitled to certain benefits. The onus is on the Applicant to demonstrate his entitlement to the benefits claimed and it’s the Respondent’s prerogative to have a medical professional of it’s choosing conduct an examination to determine if the Applicant is entitled to certain benefits. In this case, the Applicant has not provided any compelling evidence demonstrating that he sustained an injury that falls outside the minor injury definition in section 3 of the Schedule. Thus, it is unnecessary for the Respondent to conduct an insurer’s examination to determine if the Applicant sustained a minor injury.

Compliance with section 38 of the Schedule

25The Applicant may be entitled to treatment outside the MIG and the $3,500.00 funding limit in the event that the Respondent fails to comply with the notice provisions in section 38 of the Schedule.

26Pursuant to section 38(8) of the Schedule, the Respondent is required to provide, within 10 business days, the medical and other reasons why it does not agree to pay for the goods and services proposed in a treatment and assessment plan. Section 38(11)1 of the Schedule prohibits the Respondent from using the MIG as a means to deny the benefits claimed on a delayed response. Section 38(11)2 of the Schedule provides that the Respondent is liable to pay for the goods and services incurred by the Applicant during the period following the tenth business day and ending on the day a compliant response is provided.

27The Applicant submits that the Respondent failed to comply with the notice requirements in section 38(8) of the Schedule and must pay for all incurred treatment pursuant to section 38(11). The Respondent disagrees and submits that the denials are compliant with the notice requirements in section 38.

28I find that the Applicant is entitled to the goods and services related to the treatment plan dated January 30, 2019, that have been incurred during the period from March 2, 2019, to-date, pursuant to section 38(11)2. Otherwise, I find that this treatment and assessment plan is not reasonable and necessary as a result of the accident.

29The treatment plan dated January 30, 2019, was submitted on February 14, 2019. The Respondent replied to this treatment plan by letter dated March 2, 2019. It is unknown how the letter was delivered, but there is a receipt date stamp on it of March 7, 2019. There is no other evidence to indicate that the letter was received by the Applicant at another time. As a result, I find that the Respondent’s letter is untimely and does not comply with section 38(8) of the Schedule because it was received by the Applicant more than ten business days following submission of the treatment plan.

30The sole reason for the Respondent’s refusal to pay the benefit is because it believed that the Applicant sustained a minor injury. Considering the timing of the refusal, I find that section 38(11)1 applies, and the Respondent is prohibited from using the MIG and the $3,500.00 funding limit as a means to refuse payment.

31The Respondent has never remedied the non-compliant denial. As a result, and pursuant to section 38(11)2, the Applicant is entitled to the goods and services incurred during the period of non-compliance spanning March 2, 2019, to-date. However, the Applicant provided no evidence that he incurred any goods and services related to this treatment and assessment plan.

32I am unable to order the Respondent to pay a specific amount for the goods and services. This is because the Applicant tendered no evidence demonstrating that the goods and services were incurred. At most, I am able to order the Respondent to pay for the goods and services that relate to this treatment and assessment plan that were incurred during the period of non-compliance, which starts on March 2, 2019.

33Otherwise, I find that the Applicant has not met his onus to demonstrate that the treatment and assessment plan is reasonable and necessary as a result of the accident. The plan proposed goods and services such as chiropractic treatment, physiotherapy, and massage therapy. As discussed previously, the Applicant sustained predominantly soft-tissue injuries and he has not demonstrated that his injuries require ongoing facility-based treatment.

34I find that the treatment plan dated April 12, 2019, was adjusted in accordance with the provisions provided in section 38 of the Schedule.

35Contrary to the Applicant’s submissions, a valid response was provided on the 10th business day, pursuant to section 38(8) of the Schedule. It appears that the Applicant neglected to appreciate that the response period included two holidays.

36I also find that the reasons provided by the Respondent to deny the treatment plan are valid medical reasons. The explanation of benefits dated March 2, 2019, notes that the Applicant’s injuries are categorized as “Minor Injury”. The letter includes the minor injury definition, states that the Applicant identified no pre-existing conditions, and that his injuries are minor and subject to the MIG. The letter also notes that it paid the maximum policy amount for a minor injury. Lastly, the letter invites the Applicant to contact the Respondent if he has additional medical information about his injuries that may change his injury category.

37I find that the treatment plan dated May 3, 2019 was adjusted in accordance with section 38 of the Schedule. This treatment plan was submitted on May 7, 2019 and the Applicant received the response on May 16, 2019. Thus, the response is compliant with the ten-business day deadline for a response provided by section 38(8) of the Schedule.

38Additionally, I find that the Respondent provided valid medical reasons to deny the treatment plan. The reasons stated in the response mirror the reasons provided for the treatment plan dated April 12, 2019, which I find to be compliant with section 38 of the Schedule.

39I find that the treatment plan dated February 3, 2020, was adjusted in accordance with section 38 of the Schedule. This treatment plan was submitted on February 6, 2020 and the Applicant received the response on February 20, 2020. Thus, the response is compliant with the ten-business day deadline for a response provided by section 38(8) of the Schedule.

40Similar to the plans dated April 12 and May 3, 2019, I find that the Respondent provided valid medical reasons to deny the treatment plan dated February 6, 2020. The reasons stated in the response mirror the reasons provided for the treatment plan dated April 12, 2019, which I found to be compliant with section 38 of the Schedule.

Interest

41Pursuant to section 51 of the Schedule, interest is only payable on the overdue payment of benefits.

42I find that the Applicant is entitled interest on to the goods and services that relate to the plan dated January 30, 2019 that were incurred during the period of non-compliance outlined above.

CONCLUSION

43The Applicant sustained a predominantly minor injury as a result of the subject accident and is subject to the $3,500.00 funding limit on medical and rehabilitation benefits.

44The Applicant is entitled to payment for the goods and services that relate to the January 30, 2019 treatment and assessment plan and were incurred during the period of non-compliance, plus interest pursuant to section 51 of the Schedule.

45Otherwise, the Applicant is not entitled to the plans claimed because they propose goods and services that are not contemplated in the MIG and exceed the $3,500.00 funding limit for medical and rehabilitation benefits for minor injuries.