Licence Appeal Tribunal File Number: 21-006149/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:
Shirley Reynolds
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Lora Castellucci, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Shirley Reynolds, the applicant, was involved in an automobile accident on August 22, 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, Unifund Assurance 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 $2,731.61 for chiropractic treatment, recommended by Humber Civic Care Centre in a treatment plan dated January 29, 2020?
iii. Is the applicant entitled to $1,995.33 for psychological treatment, recommended by Humber Civic Care Centre in a treatment plan dated February 20, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;
ii. As the full MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted; and
iii. As no benefits are owing, no interest is payable.
ANALYSIS
Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 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. In all cases, the burden of proof lies with the applicant.
6In his submissions, the applicant has not specified on which ground he should be removed from the MIG, although it appears to be on the basis of a psychological impairment or chronic pain.
The applicant has not established psychological impairments warranting removal from the MIG
7The applicant has not provided any specific submissions as to any accident-related psychological impairments. To establish his claim, the applicant has submitted a treatment plan (“OCF-18”) for a psychological assessment. As part of this OCF-18, Dr. Sadet Yilmaz, psychologist, provided additional comments summarizing an interview, where the applicant reported sleep, memory and concentration difficulties, depressive and anxious symptoms, emotional issues and a fear of driving. The only other evidence submitted by the applicant that references psychological symptoms, is the OCF-3 prepared by Dr. Dario Mirian, chiropractor, which lists cognitive symptoms, emotional and sleep disturbances, nervousness, irritability and anger, among the stated symptoms.
8I find that the applicant has not led sufficient evidence to establish that he sustained a psychological impairment as a result of the accident.
9Firstly, I agree with the respondent’s submissions and cited caselaw that an OCF-3 is a form used to apply for a specified benefit and is not a comprehensive assessment of accident related impairments. Moreover, as a chiropractor, it would be outside of Dr. Mirian’s scope of practice to provide psychological assessments.
10The only other evidence submitted by the applicant is the OCF-18 form itself. However, I agree with the respondent that it is well-settled that a treatment plan alone is not evidence. Although there is reference in the OCF-18 to an interview conducted by Dr. Yilmaz, it only contained the applicant’s self-reports, no testing was conducted and I agree with the respondent that the fact that Dr. Yilmaz referred to Mr. Reynolds as “Ms. Reynolds” throughout the comments, raises concerns about the accuracy of the interview.
11Most importantly, the applicant has not provided any medical evidence to support his claim that he sustained a psychological impairment as a result of the accident. He does not refer me to any clinical notes and records (“CNR”) entry where he reported psychological symptoms to his doctor, was diagnosed with a psychological impairment or sought any psychological support post-accident.
12Without such evidence, I am unable to find that the applicant has met his burden to prove that he sustained a psychological impairment as a result of the accident.
The applicant has not established chronic pain warranting removal from the MIG
13The applicant submits that he has developed chronic pain as a result of the