Licence Appeal Tribunal File Number: 21-005028/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:
Mohamed Bangura
Applicant
And
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Anita Goela
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD: In Writing
OVERVIEW
1The applicant was involved in an automobile accident on September 29, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, BelairDirect, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
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 the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to $2,144.92 for a psychological assessment, proposed by Princeton Hills Medical Assessments in a treatment plan dated October 20, 2020?
iii. Is the applicant entitled to $1,660.00 for a work site assessment, proposed by Princeton Hills Medical Assessments in a treatment plan dated November 2, 2020?
iv. Is the applicant entitled to $2,270.73 for a neurological assessment, proposed by Integral Health Group in a treatment plan dated November 13, 2020?
v. Is the applicant entitled to $2,773.24 for physical therapy, proposed by Complete Care in a treatment plan dated August 30, 2021?
vi. Is the applicant entitled to interest on any overdue payments?
RESULT
4I find the applicant is:
i. Subject to the MIG.
ii. Not entitled to the disputed treatment plans.
iii. Not entitled to interest.
PROCEDURAL ISSUE
5In initial submissions, the applicant indicated that a non-earner benefit (NEB) and an award under s. 10 of Reg. 664 are issues in dispute. The applicant did not provide any submissions regarding entitlement to the NEB or the award.
6In responding submissions, the respondent indicated that the issues of the NEB and the award were withdrawn at the case conference. The case conference report and order indicates that the NEB and special award were withdrawn on consent.
7For these reasons, this decision does not address whether the applicant is entitled to the NEB or the award.
ANALYSIS
Minor Injury Guideline
8The applicant bears the onus of proof, on a balance of probabilities, that he is not subject to the MIG.
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained impairments that are predominantly a minor injury in accordance with the MIG.
10Section 3(1) defines a “minor injury.” This definition includes “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and clinically-related sequelae.”
11An insured is not subject to the MIG if his accident-related injuries fall outside the definition of a minor injury.
12Section 18(2) provides the MIG does not apply if the insured has a documented pre-existing injury or condition that precludes recovery if confined to the MIG.
13The applicant hit his face against the steering wheel during the accident. The applicant’s medical evidence shows that he suffered an injury to his nose.
14The x-ray from the hospital does not find any fracture; however, the consultation note from Dr. Marta Strakacz indicates that she could visually observe a deviated septum and that the applicant complained that he could not breathe through both sides of his nose. However, there was no x-ray to confirm this diagnosis.
15The applicant complained of anxiety, loss of appetite and stress since the accident.
16The applicant complained that he had back pain from the accident that was not relieved by massage and analgesics.
17The applicant submits that he suffers from chronic pain. The applicant did not indicate how he is functionally impaired in his activities of daily living from the pain.
18The applicant attended an insurance examination and was seen by Dr. Michael Hanna, general practitioner. The applicant told Dr. Hanna that as part of his employment he was required to lift up to 100 pounds, among other physical demands. The applicant also told Dr. Hanna that he worked as an Uber driver and that he remained independent with all of his pre-accident activities.
19Dr. Hanna diagnosed the applicant with sprain/strain of the cervical, thoracic and lumbar regions.
20The applicant submits that he had no pre-existing health problems or previous injuries. The respondent submits that there is evidence that the applicant had issues with anxiety before the accident. The respondent relies on the clinical notes and records of Brampton Urgent Care Centre which indicate that the applicant had been on anxiety medication before the accident.
21The applicant also attended a psychological insurance examination and was seen by Dr. Randy Silverman, psychologist. Dr. Silverman found it difficult to reliably attribute the applicant’s symptoms to the accident.
22Overall, I found that the applicant did not provide sufficient evidence to demonstrate that the injury to his nose is more than a minor injury, as defined by s. 3 of the Schedule. It appears that his nose injury would meet the definition of a laceration, as there is no diagnostic imaging to confirm that there was a fracture as a result of the accident. I agree with the finding of Dr. Hanna that the other pain experienced by the applicant appears to meet the definition of a sprain/strain, which falls squarely within the s. 3 definition of a minor injury. For these reasons, the applicant’s physical injuries meet the definition of a minor injury subject to the MIG.
23The applicant has not provided compelling evidence that he has a pre-existing medical condition that precludes recovery under the MIG to meet the requirements for removal under s. 18(2).
24With respect to the psychological assessment, the applicant did not meet his burden to demonstrate that his anxiety symptoms are accident-related. The applicant’s medical evidence indicates that the applicant had anxiety issues before the accident. I also found the opinion of Dr. Silverman persuasive that it was difficult to reliably attribute the applicant’s anxiety symptoms to be accident-related. Accordingly, the applicant has failed to demonstrate that his impairments justify removal from and treatment beyond the MIG.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
26As I have found that the applicant is subject to the MIG, he is not entitled to the disputed treatment plans. As no benefits are owing, no interest is payable.
ORDER
27The applicant is subject to the MIG.
28The applicant is not entitled to the disputed treatment plans.
29The applicant is not entitled to interest.
30The application is dismissed.
Released: July 14, 2023
Anita Goela
Adjudicator