Licence Appeal Tribunal File Number: 21-001221/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:

Oslen Christian

Applicant

and

BelairDirect

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Jessica M. Golosky, Counsel

For the Respondent: Brittany Rizzo, Counsel

HEARD: By way of written submissions

OVERVIEW

1Oslen Christian, the applicant, was involved in an automobile accident on September 10, 2020, 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 BelairDirect, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2In an order dated July 16, 2021, the Tribunal identified a preliminary issue of non-compliance with section 44 examinations. However, the applicant has since presented for the sections 44 examinations. Therefore, I am moving forward under the assumption that section 44 non-compliance has been withdrawn as an issue in dispute.

SUBSTANTIVE ISSUES

3The 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 $3,566.19 for psychological services, proposed by Storrie, Velikonja and Associates in an OCF-18 (plan) submitted September 16, 2020 and denied October 2, 2020?

iii. Is the applicant entitled to $1,245.54 for physiotherapy services, proposed by CBI Health Centre in a plan submitted on October 29, 2020 and denied November 23, 2020?

iv. 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?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant is removed from the MIG due to a pre-existing condition and is entitled to $1,245.54 for physiotherapy services and applicable interest.

5The applicant is not entitled to psychological therapy or a s.10 award.

PROCEDURAL ISSUES

6The respondent submits that they never received a copy of the clinical notes and records (CNRs) from the applicant’s family physician, and requests that any reference to the CNRs which have not been provided be ignored in my deliberations.

7The Tribunal did not order documents to be produced at the case conference. The order states, “The parties agreed that an order listing the documents to be produced and exchanged is not necessary”. A final production deadline was set for March 1, 2022.

8According to the applicant’s reply submissions, the CNRs of the applicant’s family physician were served on the respondent March 1, 2022, and receipt was confirmed via email on March 7, 2022. They were contained in an Addendum Document Brief filed with the Tribunal on April 4, 2022.

9I have no reason to believe that the documents were not served on March 1, 2022. This service complies with the Order issued by the Tribunal following the case conference. I find the respondent had the disputed evidence in its possession when it made its submissions to the Tribunal.

10The CNRs from the applicant’s family physician are therefore admitted as evidence and will be considered.

ANALYSIS

The applicant suffers from a pre-existing condition which warrants removal from the MIG

11Section 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.”

12An 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.

13The applicant has a considerable history of pre-existing conditions and medical issues. Dr. M Mason, his physician, states in a letter written on April 29, 2021, that:

i. The applicant was diagnosed with mild cerebral palsy as a child;

ii. He was in a motor vehicle accident in January of 1995 and suffered a traumatic brain injury, spastic hemiplegia, diffuse tremor, body shaking, difficulty with walking, difficulty with speech and severe right hip pain;

iii. He was rear ended in September 2014 and suffered a concussion, depression, neck pain, back pain and worsening of right hip pain;

iv. He was involved in the subject accident in September 2020 and has reported pain in his neck radiating down into his right shoulder and in his lower back radiating down his right leg. He also reports worsening right hip pain; and

v. Ongoing physiotherapy has been recommended.

14The statements regarding the applicant’s pre-existing conditions are supported by the lengthy CNRs that were provided to the Tribunal.

15I give little weight to the independent reports provided by both sides on this dispute, as none had access to the applicant’s medical history. The reports only document how the applicant presented at his assessment, and do not address his pre-existing conditions, which is the only criteria being relied on to escape the MIG in this case.

16I find there is compelling medical evidence that the applicant suffers from pre-existing conditions which preclude recovery if the applicant is kept within the confines of the MIG. Accordingly, I find the applicant has demonstrated that removal from the MIG under s. 18(2) if warranted.

The applicant is not entitled to psychological treatment

17To receive medical and rehabilitation benefits under the Schedule, the applicant bears the burden of demonstrating that the treatment is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the cost of the treatment is reasonable.

18The applicant has provided a multi-year history of CNRs from psychological treatment from both before and after the accident. Several providers were seen, with notes from Dr. J. Saracino, a clinical psychologist, being provided for the period after the accident. The OCF-18 in dispute recommended an additional $3,566.19 for psychological services.

19In her notes, Dr. Saracino references the accident as one cause of stress for the applicant. However, Dr. Saracino opines that the main stressor for the applicant is not any injury or impairment sustained in the accident, but frustration over the process of dealing with the insurance claim and the application before the Tribunal.

20I find that this cannot be characterized as a psychological impairment sustained “as a result of the accident.” Therefore, the insurer is not liable to provide psychological services as they are not reasonable and necessary as a result of the accident.

The applicant is entitled to physiotherapy services

21Dr. Mason states clearly in her letter on April 29, 2021, that she recommends the applicant continue physiotherapy for his injuries. The OCF-18 proposes 9 sessions of Massage Therapy and 5 sessions of mobilization. This treatment plan aligns with the recommendation provided by Dr. Mason, which I find reasonable.

22Therefore, the applicant is entitled to $1,245.54 for physiotherapy services, proposed by CBI Health Centre in a plan submitted on October 29, 2020, as this OCF-18 is reasonable and necessary.

The applicant is not entitled to an award under s.10

23Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

24It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

25It is evident the respondent made numerous requests for the CNRs of the applicant’s family physician. It is also evident that the applicant did not provide them until the final production deadline. The applicant cannot reasonably expect the respondent to lift the MIG limits based on a pre-existing condition without the documented history from the applicant’s family physician. As these records were not provided until the final production deadline on March 1, 2022, the respondent did not act unreasonably in applying MIG limits pending receipt. In fact, there is a letter contained within the clinical notes and records from the applicant’s counsel expressly stating that applicant’s counsel is aware that the respondent is reaching out for the records and that Dr. Mason is not to release any records to the respondent.

26I find that the applicant, through his refusal to produce medical records, is partially responsible for the delay in treatment. He is not entitled to an award under s.10.

The applicant is entitled to interest on the awarded treatment plan

27The applicant is entitled to interest on the $1,245.54 approved for physiotherapy services as per the Schedule.

ORDER

28For the reasons outlined above, I order that the applicant:

i. Is removed from the MIG on the basis of a pre-existing condition;

ii. Is not entitled to psychological services in the amount of $3,566.19;

iii. Is entitled to physiotherapy services of $1,245.54 plus interest; and

iv. Is not entitled to an award.