Licence Appeal Tribunal File Number: 21-007361/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:
Sonam Pandan
Applicant
and
Intact Insurance
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Camille Narine- Ramrattan, Paralegal
For the Respondent: Theomarcus Giannou, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sonam Pandan, the applicant, was involved in an automobile accident on December 14, 2017, 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, Intact Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $3,007.12 for other goods and services of a medical nature, proposed by West Queensway Health Centre in a treatment plan (“OCF-18”) dated February 26, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominately minor as defined by the Schedule, and are subject to the treatment limit under the MIG;
ii. The treatment plan in dispute is not payable;
iii. The applicant is not entitled to interest.
ANALYSIS
APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)
4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
6An applicant may receive payment for treatment beyond the $3,500.00 limit under s. 18(2) if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
8The MIG limits have not been exhausted, as the respondent has paid $3,445.24 in medical benefits to the applicant, leaving $54.76 remaining in the MIG.
9The applicant submits that he should be removed from the MIG on the basis of chronic pain that has resulted in significant functional impairment and psychological impairment that cannot be treated within the MIG.
Did the applicant suffer physical injuries that warrant removal from the MIG?
10The clinical notes and records (“CNRs”) of Dr. Anis Fatima, general practioner and the Physician Paper Review of Dr. Sabrina Tu, general practioner, reveal that the applicant sustained sprain and strain back injuries. The applicant has not produced any other medical evidence to demonstrate that his physical injuries warrant removal from the MIG. For these reasons, I find that the applicant has not met his onus in proving on a balance of probabilities that his physical injuries do not fit within the minor injury definition and therefore subject to the MIG.
Do the applicants pre-existing injuries warrant removal from the MIG?
11The applicant references pre-existing medical conditions in his submissions, including kidney, thyroid issues and hypertension. While I accept that the applicant has pre-existing medical conditions, I am not persuaded that the conditions would warrant removal from the MIG, as the applicant did not provide compelling evidence that these pre-existing conditions would prevent his maximal medical recovery if he is subject to the MIG, as required by s. 18(2).
Do the applicant suffer psychological injuries that warrant removal from the MIG?
12An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
13In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
14I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.
15The applicant relies on the Psychological Pre-Screening Report of Dr. Judith Pilowsky, psychologist, dated August 6, 2018. The applicant self-reported that he has difficulty sleeping, is fearful of driving, has anxiety and flashbacks. Dr. Pilowsky diagnosed the applicant with depressive and post-traumatic anxiety pain and recommended a psychological assessment. The applicant also relies on the Disability Certificate (“OCF-3”) dated December 15, 2017, completed by Mr. John Bare, chiropractor, that indicates the applicant has a psychological impairment.
16The respondent relies on the Psychological Report of Dr. Shulamit Mor, psychologist, dated November 28, 2018. During the examination, the applicant indicated that his emotional state was improved, and he was not interested in any psychological treatment. Furthermore, the applicant denied feeling depressed or anxious. Dr. Mor opined that the applicant did not suffer a psychological impairment as a result of the accident.
17I prefer and adopt the findings of Dr. Mor, as his findings are consistent with the medical evidence or lack thereof. I note that the applicant’s psychological claims are not addressed in the CNRs of his treating physician in the five years post-accident, and he has not been prescribed nor taken any medication for same. I also find Dr. Pilowsky’s Report, which references the applicant’s fear of driving and being in a vehicle, to be inconsistent with the fact the applicant has resumed his position as an Uber driver. Lastly, I put little weight on the OCF-3 completed by Mr. Bare, as I find the diagnosis of psychological injuries are beyond the scope of practice of a chiropractor.
18For the above reasons, the applicant has not met his onus to prove on a balance of probabilities that his psychological impairments warrant treatment beyond the MIG.
Does the applicant have chronic pain that warrants removal from the MIG?
19For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide evidence that her accident-related injuries and/or pain have had a detrimental impact on her functionality. The applicant submits that he sustained accident-related chronic pain with functional impairment sufficient to remove him from the MIG. The applicant relies on the CNRs of Dr. Fatima. The applicant visited Dr. Fatima on December 19, 2017, following the accident, where he was diagnosed with whiplash and prescribed Naproxen for back and neck pain. The applicant relies on his regular and ongoing appointments with Dr. Fatima from 2017-2022 as support for his claim that his ongoing back and neck pain has now become a chronic condition. In reviewing Dr. Fatima’s CNRs, some visits were for non-accident-related concerns. The applicant references the single notion in the CNR dated May 11, 2022 that makes reference to acute chronic pain since the accident, the applicant also provides that the pain impedes on the carriage of his normal day-to-day life.
20The respondent submits that the evidence reveals that the applicant only sustained soft tissue injuries as a result of the accident, which are impairments that fall within the MIG. The respondent relies on the CNRs of Dr. Fatima, and the Physician Paper Review of Dr. Sabrina Tu, general practioner, dated April 20, 2018, which reveals that the applicant sustained sprain and strain back injuries. It is the respondent’s position that the applicant does not meet the threshold for a diagnosis of chronic pain that would warrant removal from the MIG.
21In responding to Dr. Fatima’s reference to “chronic” pain, the respondent submits that the mere mention of the term “chronic pain” is inadequate to remove the applicant from the MIG and on its own is not enough to establish that there has been an affect on the applicant’s functionality. I agree. I am persuaded by the respondent’s submission that there has been no long-term change in the applicant’s functionality following the accident. Specifically, I find that the applicant has returned to work full-time as a machine operator and Uber driver.
22Accordingly, where the applicant sustained soft tissue injuries, where his complaints of pain in the CNRs are infrequent and where he has demonstrated functionality in his daily activities, I find that the applicant has not provided compelling evidence of chronic pain as a result of the accident that causes functional impairment in the applicant’s life, such that the pain can only be improved with treatment outside of the MIG. Furthermore, I find that Dr. Fatima’s mention of chronic pain is not enough on its own to establish the impact the applicant’s accident-related pain has had on his functionality.
23For the above reasons, the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments require treatment beyond the MIG.
THE TREATMENT PLANS
24As the applicant remains within the MIG and its $3,500.00 limit on treatment, he is not entitled to the OCF-18 in dispute as it is not reasonable and necessary.
INTEREST
25Given that no benefits are overdue, the applicant is not entitled to interest.
ORDER
26The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest.
Released: September 7, 2023
Monica Ciriello
Vice-Chair