21-000269/AABS

Licence Appeal Tribunal File Number: 21-000269/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:

Selvachandran Arunasalam

Applicant

And

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Justin Mariani, Paralegal

For the Respondent:

Andrew Cottreau, Counsel

HEARD: By way of written submissions

OVERVIEW

1Selvachandran Arunasalam, (“the Applicant”) was involved in an automobile accident on July 30, 2018 and sought benefits from Pembridge Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).

2The Respondent determined that the Applicant’s injuries fell within the minor injury definition and subjected him to the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit on medical and rehabilitation benefits. It also determined that it overpaid income replacement benefits (“IRBs”) to the Applicant and seeks a repayment of the benefits paid. The Applicant disagrees with these determinations and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

1. Are the Applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

2. Is the Applicant entitled to a medical benefit in the amount of $1,830.08 for physiotherapy services, proposed by Downsview Healthcare Inc. in a treatment and assessment plan (“plan”) dated January 17, 2019?

3. Is the Applicant entitled to a medical benefit in the amount of $1,981.70 for physiotherapy services, proposed by Downsview Healthcare Inc. in a plan dated May 16, 2019?

4. Is the Applicant entitled to a medical benefit in the amount of $2,887.14 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated May 16, 2019?

5. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for physiotherapy services, proposed by Downsview Healthcare Inc. in a plan dated May 15, 2019?

6. Is the Applicant entitled to a medical benefit in the amount of $2,150.08 for physiotherapy services, proposed by Downsview Healthcare Inc. in a plan dated October 11, 2018?

7. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a Psychological Assessment proposed by Downsview Healthcare Inc. in a plan dated October 25, 2018?

8. Is the Respondent entitled to a repayment in the amount of $6,400.00 related to an overpayment of income replacement benefits (“IRBs”)?

9. Is the Applicant entitled to interest on any overdue payment of benefits?

10. Is the Applicant entitled to an award pursuant to section 10 of Regulation 664?

RESULT

4I find that the Applicant is not entitled to the benefits claimed, interest, or an award.

5The Respondent is not entitled to a repayment of IRBs.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck on the driver’s side by a vehicle making a left turn at a traffic light. He was able to exit the vehicle on his own but was taken to the hospital by ambulance with complaints of chest and rib pain. He was diagnosed with soft tissue injuries at the hospital and discharged. He visited his family physician, Dr. R. Murthy, the following day, complaining of body aches. Dr. Murthy noted that the Applicant had full range of motion (“ROM”) in the neck, shoulders, and back. The Applicant was diagnosed with a soft tissue injury by Dr. Murthy, referred for physiotherapy, told to take two weeks off work, and increase his insulin.

7The Applicant returned to Dr. Murthy on October 9, 2018 and was given a note confirming eligibility to return to full work duties. The Applicant’s next visit with Dr. Murthy was for a physical about a year later, on October 11, 2019. There, the Applicant noted he had neck pain since the 2018 accident. At that time, the Applicant had full ROM throughout his body and Dr. Murthy made no treatment recommendations.

ANALYSIS

8The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule, or that he has a pre-existing health condition which would preclude him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

9The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the Applicant’s entitlement to them is contingent on a finding that his injuries are not included in the minor injury definition. If so, the Applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities. With respect to his award claim, the onus is on the Applicant to demonstrate that the Respondent unreasonably withheld or delayed the payment of benefits.

10The onus is the Respondent to demonstrate that it overpaid IRBs and has met the repayment request requirements outlined section 52 of the Schedule.

The Minor Injury Guideline (“the MIG”)

11The 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.

12Pursuant 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.

13The Applicant’s submissions suggest that he claims to have sustained psychological injuries and chronic pain as a result of the accident, which are not included in the minor injury definition. Alternatively, he suggests that his pre-existing health condition precludes his recovery if subject to the MIG and the $3,500.00 funding limit on medical benefits. The Respondent submits that the Applicant has not met his onus to demonstrate that he sustained anything more than a minor injury or that his pre-existing health condition precludes his recovery. It relies on insurer’s examinations (“IEs”), which support its position. I agree with the Respondent and find that the Applicant has not met his onus to demonstrate entitlement to the benefits claimed.

Pre-Existing Health Condition

14There is no evidence demonstrating that the Applicant’s pre-existing diabetes or low back pain from a 2008 motor vehicle accident preclude his recovery if subject to the MIG.

15There are no pre-accident medical records before me. While the Applicant claims that his pre-existing diabetes impairs his recovery, he presented no evidence that it was a documented health condition prior to the accident. Even if I were to consider it a health condition documented prior to the accident, there is no evidence demonstrating that it impaired the Applicant’s recovery. At most, it caused him to increase his insulin use during the acute stage of recovery. Despite the possible accident-related increase in insulin consumption, there is no evidence that the Applicant’s health condition precluded his recovery. In fact, the Applicant reported to assessors that, aside from being insulin dependent, he was in good health prior to the accident.

Psychological Injuries

16Psychological injuries are not included in the minor injury definition and a finding that the Applicant sustained a psychological injury as a result of the accident would permit him to seek treatment outside of the MIG and beyond the $3,500.00 funding limit provided by the MIG. However, I find no compelling evidence demonstrating that the Applicant sustained a psychological injury as a result of the subject accident.

17The psychological assessment report by Dr. A. Shaul, psychologist, and H. Ilios, psychotherapist, dated January 15, 2019 (“the Shaul report”) is uncompelling in light of the other evidence. According to the plan, the assessment for the Shaul report was conducted because the Applicant demonstrated signs and symptoms of psychological injuries. However, the evidence does not support that. No psychological symptoms are referenced in the Applicant’s family physician’s clinical notes and records (“CNRs”), despite a visit for accident-related pain issues. There are no CNRs from the treatment facility before me that indicate the Applicant presented with psychological symptoms. The disability certificate completed by Dr. O. Pivtoran, chiropractor, dated August 18, 2018, is the only medical document reviewed for this assessment. The disability certificate lists symptoms such as stress and symptoms of an emotional state, but it holds no weight as Dr. Pivtoran also diagnosed the Applicant with a concussion and concussion-related symptoms where it is clear he suffered no concussion or loss of consciousness. This issue would likely have been identified had the assessors reviewed any of the Applicant’s medical records. Further, the conclusion of the Shaul report is anomalous to the balance of the other evidence. The Shaul report finds that the Applicant scored in the severe range for depression and anxiety, but there are no signs or symptoms of severe depression and anxiety recorded in the other medical records that would corroborate the results.

18Whereas, the IE by Dr. M. Mandel, psychologist, dated December 28, 2018, concluded that there is a lack of objective information that would support a formal diagnosis. Dr. Mandel noted that the Applicant reported that he is prevented from returning to work in his full capacity due to pain and physical issues. Contrary to this, Dr. Murthy’s CNRs document a recommendation to return to work at full capacity by October 9, 2018 – more that two months prior to the assessment. Dr. Mandel noted that the Applicant described no specific symptoms that would suggest he is experiencing panic attacks or generalized anxiety at the time of the assessment. Further, Dr. Mandel found that the Applicant is not precluded from completing his activities of daily living or work due to psychological injuries.

19Dr. Mandel assessed the Applicant again and issued a second report, dated August 1, 2019. Psychometric testing results from that assessment suggest unusual responses to the tests and Dr. Mandel encouraged that they be reviewed with caution. Again, following this assessment, Dr. Mandel found a lack of consistent objective information that would suggest that the Applicant suffers from clinically significant symptoms of a psychological injury.

20The evidence demonstrates that, while the Applicant reports some symptoms of anxiety and depression, those symptoms appear to be subclinical. I prefer the opinion of Dr. Mandel and conclude that the Applicant’s symptoms do not rise to the level to warrant treatment for psychological injuries beyond the confines of the MIG.

Chronic Pain

21Like psychological injuries, chronic pain conditions are not included in the minor injury definition. The Applicant claims that he suffers from chronic pain because he reports ongoing pain more than 10 months following the accident, received pain relief from treatment, and incurred treatment even though it was denied by the Respondent.

22I find that the Applicant does not suffer from a chronic pain condition as a result of the accident.

23The disability certificate and treatment plans which note the chronicity of the Applicant’s injuries are inaccurate and hold no weight as a result. As noted earlier, the disability certificate completed by Dr. Pivtoran, chiropractor, listed injuries that the Applicant did not sustain in the subject accident, such as a concussion and concussion-related issues. Additionally, Dr. Pivtoran diagnosed psychological symptoms which fall outside of the scope of a chiropractor. Together, these issues render medical opinions in the disability certificate and treatment plans to be meaningless.

24On the other hand, the Applicant demonstrates that he does not suffer from a functional impairment as a result of ongoing pain. The Applicant regularly demonstrates full range of motion (“ROM”) on examination, returned to work on a full-time basis, and was encouraged by his family physician to fully engage in his pre-accident activities. The Applicant does not exhibit the usual hallmarks of a chronic pain condition: he is not dependent on healthcare providers or prescription medication; he has not deconditioned due to disuse; and there is no evidence demonstrating that he has withdrawn from social milieu.

25The IE reports concluded that the Applicant sustained a minor injury. Dr. S. H. Hosseini, physiatrist, assessed the Applicant and issued a report dated December 28, 2018. Dr. Hosseini noted that the Applicant presented with significant pain behaviours and self-limited participation in the clinical exam and was observed to demonstrate greater ROM during informal testing. Dr. Hosseini diagnosed the Applicant with chronic headaches and various soft tissue injuries and opined that he could be treated within the confines of the MIG.

26Dr. Hosseini conducted a file review and issued a second report dated June 3, 2019. Dr. Hosseini reviewed the Shaul report and the plan for a chronic pain assessment and maintained the opinion presented in the December 28, 2018 report. There is nothing in this report that would lead me to conclude that the Applicant suffers from a chronic pain condition as a result of the accident.

27Occupational therapist N. Lee assessed the Applicant and issued a report dated December 28, 2018. Occupational therapist Lee observed that the Applicant demonstrated significantly reduced back and shoulder ROM and concluded that he was able to perform work at a sedentary level. Remarkably, this observation was made about two months after Dr. Murthy confirmed that the Applicant was fit to return to work on full duties. In any event, occupational therapist Lee is not qualified to diagnose chronic pain and never had an opportunity to review Dr. Murthy’s CNRs, which document that the Applicant had full ROM throughout his body in the acute phase following the accident.

28I acknowledge that the Applicant reports ongoing pain from the subject accident. However, ongoing pain is contemplated in the minor injury definition. The minor injury definition includes clinically associated sequalae of soft tissue injuries, as is the case for the Applicant.

Other Considerations

29I have also considered the Applicant’s submissions that the Respondent approved medical and rehabilitation benefits beyond the MIG funding limits and its impact on the characterization of the Applicant’s injuries. I find that this argument is misleading and inconsequential to the Applicant’s entitlement to goods and services beyond the MIG funding limit of $3,500.00.

30The evidence demonstrates that the Respondent never paid for treatment above the MIG funding limit. The discrepancy between amounts approved for medical benefits is related to the fact that the Applicant submitted a MIG treatment plan through one clinic and switched clinics before commencing treatment. In the end, the evidence shows that the Respondent has not funded any medical and rehabilitation benefits beyond the $3,500.00 funding limit.

The disputed treatment and assessment plans

31The Applicant submits that the Respondent failed to comply with its response obligations outlined in section 38 of the Schedule. It submits that all of the denials relating to medical and rehabilitation benefits are “clearly boilerplate” and fail to mention his injuries or the reasons for the denials for which he could make an informed decision on. He submits that, at a minimum, he is entitled to the amounts incurred to-date, due to the Respondent’s failure to comply. The Respondent denies this and submits that it referenced the medical opinions of the assessors in all of the denials.

32I find that the Applicant has failed to demonstrate that the Respondent failed to comply with section 38(8) of the Schedule.

33Specific to this hearing, section 38(8) of the Schedule provides that the Respondent must give the medical and all other reasons why it refuses to pay for the proposed goods and services within 10 business days after it receives the treatment and assessment plan. A failure to comply with section 38(8) permits the Applicant to incur the goods and services proposed in the plan starting on the 11th business day after submission and ending on the date that a compliant denial is given, as outlined in section 38(11) of the Schedule.

34The Applicant’s submissions on this issue are vague and fail to clearly identify the Respondent’s failure to comply. The submissions focus on Tribunal decisions which discuss the parameters of a compliant denial and do not address how the cases apply to his own. For instance, the Applicant never provided a list of the non-compliant denials or the dates of the documents which he alleges are non-compliant. Instead, I am referred to a group of denials and told that they are all insufficient. At a minimum, an insured person should individually identify the specific denials that are not compliant.

35The Respondent directed me to an explanation of benefits (“EoB”) dated January 14, 2019 which was delivered together with the IE reports dated December 28, 2018. The January 14, 2019 EoB refers to the IE reports and the assessor’s conclusion that the Applicant is not entitled to IRBs effective January 18, 2019. The same EoB was used by the Respondent to deny funding for the psychological assessment and part of the chiropractic treatment plan dated October 11, 2018. It noted that the assessors determined that the Applicant’s psychological symptoms are not severe enough to warrant a diagnosis and confirms that the Applicant’s injuries are characterized as a minor injury and subject to the MIG. The Applicant never addressed these submissions in reply.

36I find that the January 14, 2019 EoB is a valid denial. It was delivered within the requisite 10 business days, provides the medical and other reasons for the denial (that the Applicant’s psychological symptoms were not severe enough to warrant a diagnosis), and advises that it finds the Applicant’s injuries to be consistent with the minor injury definition.

Is the Respondent Entitled to a Repayment of IRBs?

37The Applicant received IRBs as a result of the accident. He returned to work by no later than October 9, 2018, but never shared this with the Respondent. As a result, the Respondent continued to pay IRBs while the Applicant was working. The Respondent seeks a repayment of IRBs paid to the Applicant following his return to work. The Applicant denies that he is obligated to repay the Respondent because, to him, the repayment notice is insufficient. I agree with the Applicant.

38Section 52 of the Schedule provides the guidelines for seeking repayment of a benefit. To claim a repayment, the Respondent has two obligations once it has determined a payment was made in error 1) it must notify the applicant of the benefit amount the applicant is required to repay and 2) it must provide the notice within 12 months after the erroneous payment is made, unless the error was made on account of a willful misrepresentation or fraud.

39The EoB dated January 14, 2019 (“the notice”) fails to provide an unequivocal request for repayment of IRBs thus, it does not comply with the requirements outlined in section 52 of the Schedule. The notice referred to the IEs, as mentioned above, and advised that it has come to the Respondent’s attention that the Applicant returned to work within two months of the accident, resulting in payment of $6,400.00 that it felt the Applicant was not entitled to. It requests that the Applicant declare his post-accident income. The notice also concludes with a request for a cheque in the amount of $6,400.00 and that interest would be charged if payment was not received by February 1, 2019.

40The notice is insufficient in that, between the second and third points discussed above, it states should an overpayment been made… it will request payment, instead of stating that it determined an overpayment was made and is requesting repayment. The relevant part of the notice is as follows (“the statement”);

We are providing you notice that should an overpayment under this benefit have been made by us, we will request repayment of any over payment in accordance with the Statutory Accident Benefits Schedule (SABS) Section 52 (1)(b) which states…

41By stating that it will request a repayment should an overpayment have been made, the Respondent has made an equivocal request for repayment. Using the terms “should” and “will” in the statement implies that the request is not being made currently but, instead, is to be assessed upon receipt of the requested declaration of post-accident income. Upon my assessment of the notice, I see no other reason to include “should” and “will” in the statement other than to imply that the IRB repayment request will be assessed upon receipt of the information requested. Thus, the use of “should” and “will” outweighs the suggestions of repayment made before and after their use.

42Having failed to make a clear and unequivocal request for a repayment of IRBs, I find that the Applicant is not liable to repay the amount claimed by the Respondent.

43The Respondent’s supplemental request for repayment, dated March 24, 2022, is untimely. Pursuant to section 52(3), a repayment request must be made within 12 months after the payment of the amount that is to be repaid unless it was originally paid as a result of wilful misrepresentation. Here, the repayment request is made more than three years after the payment was made. Indeed, the Applicant failed to produce his post-accident paystubs when requested, and the Respondent made a revised request shortly after receipt of the documents. However, the repayment request here is not made on the basis of wilful misrepresentation. Thus, the Respondent was required to make a compliant request for repayment within 12 months of the overpayment yet failed to do so.

44As a result, I conclude that the Applicant is not liable to repay IRBs to the Respondent.

CONCLUSION

45The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit on medical and rehabilitation benefits.

46The Applicant is not liable to repay IRBs in the amount of $6,400.00