Citation: Contreras v. Intact Insurance Company, 2023 ONLAT 21-001680/AABS

Licence Appeal Tribunal File Number: 21-001680/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:

Juan Luis Contreras

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Devika Maharaj, Paralegal

For the Respondent:

Leah Dick, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Juan Luis Contreras (“JLC”), the applicant, was involved in an automobile accident on December 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). JLC was denied benefits by the respondent, Belair Direct (Intact), 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 JLC’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 (the “MIG”)?

ii. Is JLC entitled to medical benefits, recommended by Downsview Healthcare Inc. as follows:

a. $1,363.55 for physiotherapy services, submitted in a treatment plan (OCF-18) dated August 25, 2020;

b. $1,563.72 for chiropractic services, submitted in an OCF-18 dated June 18, 2020;

c. $2,000.00 for a chronic pain assessment, submitted in an OCF-18 dated June 24, 2020;

d. $2,575.12 for physiotherapy services, submitted in an OCF-18 dated January 9, 2020;

e. $2,438.30 for psychological services, submitted in an OCF-18 dated September 29, 2020;

f. $2,000 for a psychological assessment, submitted in an OCF-18 dated March 18, 2020; and

g. $1,865.08 for physiotherapy services, submitted in an OCF-18 dated June 11, 2020.

iii. Is JLC entitled to an award under s. 10 of O. Reg. 664 because Intact unreasonably withheld or delayed payments?

iv. Is JLC entitled to interest on any overdue payment of benefits?

3On June 29, 2022, JLC filed a Motion with the Tribunal. The July 12, 2022 Motion Order confirmed the addition of an OCF-18 for an assessment, in the amount of $2.200.00, submitted February 1, 2022 to the proceeding. I note that JLC made no submissions on this issue. I further note that JLC made no submissions addressing the added issue in dispute. As a result, Intact confirms that it has not made any submissions regarding the February 1, 2022 OCF-18.

4Accordingly, this decision will focus on the MIG and OCF-18s in dispute.

RESULT

5JLC has not demonstrated that his accident-related impairments warrant removal from the MIG. The disputed OCF-18s are not reasonable and necessary and no interest is payable.

ANALYSIS

Did JLC suffer predominantly minor injuries?

6Section 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 in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant.

7JLC submits that he suffers from both physical and psychological injures as a result of the accident, which was noted in the December 23, 2019 Disability Certificate (OCF-3) as―cervical, lumbar and thoracic sprain/strain; sprain and strain of joints and ligaments; left shoulder sprain and strain of joints and ligaments; acute stress reaction; symptoms and signs involving emotional state, non-organic sleep disorders; post-traumatic headaches and lacerations to head and face. He submits that he had ongoing pain as well as physical and psychological limitation at the time the OCF-18s were submitted. His position is that his reported symptoms and subsequent treatment demonstrate that his condition deteriorated after the accident, resulting in a chronic pain condition. He further submits that he had no pre-existing conditions and he has not been able to get back to his pre-accident level of functioning.

8In support of his claims, JLC relies on the clinical records of Dr. Rajmohammed, family physician; a January 3, 2020 bilateral shoulder ultrasound; a February 20, 2020 cervical spine x-ray; a May 11, 2022 report by Dr. Morgenthau, neurologist; and a July 16, 2020 psychological report from Helen Ilios, psychotherapist.

9In response, Intact submits that JLC sustained minor injuries that do not require treatment beyond the MIG. Its position is that JLC has failed to prove that he suffered a physical or psychological injury or impairment that requires further treatment beyond the MIG. It points to JLC’s evidence that he first saw his family physician 18 days post-accident, complaining of left arm, neck and back pain. Intact relies on the s. 44 Insurer’s Examination (IE) reports of physician, Dr. Manhas (March 25, 2020; addendums February 16, 2021; May 11, 2021; December 31, 2021―which determined he had predominantly minor injuries) and physician, Dr. Chaudhry (March 20, 2022―who agreed that JLC sustained soft tissue injuries).

10I agree with Intact. JLC has not provided compelling evidence to justify removal from the MIG. Drs. Manhas and Chaudhry diagnosed JLC with a cervical sprain; bilateral shoulder/biceps strain and lumbar spine strain as a result of the accident. These impairments are in line with the sprain/strain injuries listed in the OCF-3, which are consistent with the MIG. Dr. Manhas’ addendum reports confirmed his prior opinion that JLC suffered soft tissue injuries. I find both Dr. Manhas’ and Dr. Chaudhry’s reports are consistent with the family physician records which are sporadic and diagnostic imaging reports which were normal.

11JLC submits that he suffered psychological impairments that require treatment beyond the MIG. He relies on a July 16, 2020 progress report from psychotherapist, Ms. Illios. I place little weight on this report because the test results were mild and fell below the threshold of a DSM-5 diagnosis. Despite these findings, Ms. Illios diagnosed JLC with specific phobia, with no objective analysis of how a mild impairment could result in this diagnosis. Section 44 IE assessor, Dr. Syed, psychologist, concluded that JLC did not suffer from any psychological impairment that would warrant a DSM-5 diagnosis. In an addendum report dated October 16, 2020 Dr. Syed considered Ms. Illios’s report. The doctor noted there was no compelling evidence to substantiate a marked change in JLC’s clinical presentation warranting a diagnosis of a specific phobia during the short time period between his July 2020 assessment and Ms. Illios’s assessment. Notably, Ms. Illios’ objective measures were consistent with Dr. Syed’s, those being in the mild range, and yet, Ms. Illios’ diagnosis of a specific phobia was still rendered. I also note that the family physician records are silent on any psychological complaints. While JLC did report some symptoms of anxiety to Dr. Syed, he did note that it was mostly situational in nature. Dr. Syed concluded that JLC’s level of psychological impairment was subclinical. I prefer this opinion as it was more consistent with the medical record before me.

12JLC submits that he suffers from chronic pain disorder. I do not find there is objective evidence that points to a diagnosis of chronic pain, whether it be a disorder or symptom. Despite claiming that he suffers from chronic pain, the evidence supports that JLC returned to work almost immediately post-accident. Further, JLC fails to direct me to any evidence that he suffers from chronic pain. The family physician’s records do not support that he suffered ongoing pain as a result of the accident. Lastly, I am not directed to any evidence of any functional impairment as a result of chronic pain. As such, it is difficult to find that his subjective complaints are evidence of a chronic pain condition that warrants removal from the MIG. This is especially so where his family physician and the OCF-3 author, diagnosed him with minor injuries that are treatable within the MIG. I find there is no contemporaneous evidence to support JLC’s position or to refute Dr. Manhas’s or Dr. Chaudhry’s opinions.

13Based on the limited medical evidence before me, I see no reason to interfere with Intact’s determination that JLC’s accident-related impairments are predominantly minor injuries that are treatable within the MIG.

Are the treatment plans reasonable and necessary?

14It is my understanding that the MIG limits have been exhausted. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

Award

15JLC sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

16As no benefits are owing, Intact cannot have been found to have unreasonably withheld or delayed payment of benefits. No award is payable.

ORDER

17JLC has not demonstrated that his injuries warrant removal from the MIG or that the OCF-18s are reasonable and necessary.