Licence Appeal Tribunal File Number: 20-014755/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:
Ramon Melgar Sagastume
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Julia Logoutova, Paralegal
For the Respondent: Colleen Mackeigan, Counsel
HEARD: By way of written submissions
BACKGROUND
1The applicant, Ramon Melgar Sagastume (“RMS”), was involved in an automobile accident on September 1, 2018, and sought benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016 (the “Schedule”. Allstate denied his claims based on its determination that he sustained predominantly minor injuries as a result of the accident and was subject to treatment within the Minor Injury Guideline (the “MIG”). RMS disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues to be decided in the hearing are:
a. Are RMS’ 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 MIG?
b. Is RMS entitled to the following treatment proposed by East Sheppard Rehabilitation as follows:
i. $2,894.33 for chiropractic treatment, proposed in a treatment plan (OCF-18) denied on January 18, 2019?
ii. $1,603.57 for physiotherapy treatment, proposed in an OCF-18 denied on August 1, 2019?
iii. $1,212.11 for chiropractic treatment, proposed in an OCF-18 denied on October 3, 2019?
iv. $1212.11 for chiropractic treatment, proposed in an OCF-18 denied on June 29, 2020?
c. Is RMS entitled to the following treatment proposed by 2430307 Ontario Ltd. as follows:
i. $1,293.80 for medical services, proposed in an OCF-18 denied on December 18, 2018?
ii. $1,999.82 for psychological services, proposed in an OCF-18 denied on July 1, 2020?
iii. $2,000.00 for medical services, proposed in an OCF-18 denied on September 18, 2019?
iv. $1,340.24 for assistive devices, proposed in an OCF-18 denied on January 21, 2019?
d. Is RMS entitled to interest on any overdue payment of benefits?
RESULT
3I find that RMS has not demonstrated that his accident-related injuries warrant removal from the MIG. As such, the disputed OCF-18s are not reasonable and necessary.
ANALYSIS
Applicability of the MIG
4Section 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 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.
5An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). In this case, the evidence does not support a removal from the MIG as a result of psychological impairment, which, as the evidence indicated, was not a result of the accident. In RMS’s case, he argues that he should be removed from the MIG due to an accident-related psychological impairment.
6RMS submits that his injuries, listed in the Disability Certificate (OCF-3) as thoracic spine pain, Whiplash-Associated Disorder 3 (WAD3), low back pain, headache, pain in upper limb, malaise, fatigue, depressive episode, pain in lower limb and disorders of the sleep-wake schedule, require treatment beyond the MIG limits. He further relies on additional clinical notes and records (“CNRs”) from the OCF-3 author, chiropractor, Dr. Bruni, who noted in a 2019 progress report, that RMS had a suboptimal range of motion in the cervical and lumbar spine, knees and restriction of motion in both elbows. Further, by January 8, 2019, Dr. Bruni noted that the pain had become chronic. Dr. Bruni reiterated his opinion about the restricted range of motion and chronicity of symptoms in a fall 2019 progress report.
7Allstate relies on the insurer’s examination (“IE”) reports of its assessors, a July 21, 2021 physiatry report by Dr. Devlin, and a July 21, 2021 psychological report from Dr. Dumitrascu. In his physiatry report, Dr. Devlin noted that RMS has ongoing complaints of back pain, though the pain is of variable intensity. There is some limitation of range of motion of the lumbar spine, but no pain reported. Dr. Devlin opined that RMS suffered a lumbar strain, improved bilateral shoulder pain, concluding that his injuries were soft tissue in nature.
8Regarding his psychological well-being, Dr. Dumitrascu performed a number of tests, which resulted in a normal score under the clinical assessment of depression, minimal range for the beck anxiety inventory, a tendency to over-endorse his emotional symptoms to some degree under the structured inventory of malingered symptomatology, and under the trauma symptom inventory, the validity results were within normal limits. Dr. Dumitrascu noted that RMS did not report experiencing any clinically significant symptoms of anxiety, depression or post-traumatic stress. Given that RMS reported that he drives as needed and has no significant emotional problems, Dr. Dumitrascu concluded that RMS does not meet the DSM-5 criteria for a psychological disorder, therefore no psychological interventions are required.
9As I am not directed to any reports that refute those of the s. 44 IE assessors, I am persuaded by their findings, versus the CNRs that RMS relies on, or the notations on the various OCF-18s. Dr. Devlin and Dr. Dumitrascu are specialists in their particular fields, and I give their respective reports full weight.
Section 38 and s. 44 non-compliance
10Lastly, RMS submits that Allstate failed to comply with the requirements of s. 44(9)(2)(i) of the Schedule. In this regard, he points to the evidence that on April 22, 2019, Allstate advised RMS that IEs were scheduled for May 14 and 23, 2019. On May 3, 2019, RMS advised Allstate that he would be out of Toronto in May 2019 and was expected to return at the end of August 2019. On July 31, 2019, Allstate was advised that RMS was back in Toronto and was willing to participate in the IEs that it deemed reasonable. On June 2, 2021, Allstate provided RMS with notice of rescheduled IEs.
11RMS acknowledges that although the rescheduling of IEs is not described in the Schedule, he submits that Allstate’s failure to reschedule the IEs after being advised that RMS returned to Toronto and was willing to attend, is captured under s. 38(1)(11) of the Schedule. Further, RMS’ position is that the IEs, which took place approximately 34 months after the accident, still support that he has ongoing injuries as a result of the accident.
12In response, Allstate submits that RMS’ position on the rescheduled IEs is untenable. It argues that the denials of the disputed OCF-18s were on the basis that insufficient medical documentation was provided to establish that RMS would be unable to reach maximum medical recovery under the MIG limits. Its position is that the denials on the disputed issues were not made on RMS’ failure to attend scheduled IEs.
13Allstate’s submits that RMS is now taking the position that the only way for him to establish that he suffered non-minor injuries is to have attended the IEs, as he does not have a designated family physician. I note that RMS did not undertake to obtain any reports pursuant to s. 25 of the Schedule. It submits that RMS incorrectly relies on the s. 38(1)(11) provision.
14Section 38(1)(11) sets out that an insurer must give proper notice to an applicant of a denial of benefits pursuant to s. 38(8), which requires that notice be given within 10 business days after it receives the treatment and assessment plan. This section of the Schedule does not apply to conducting or scheduling IEs. I agree with Allstate, that there is no requirement under the regulation that an insurer must re-schedule an IE within 10 days of an applicant agreeing to re-attend same. Further, to Allstate’s position, where the denial of benefits is not on the basis of non-attendance at IEs.
15The scheduling of IEs is set out in accordance with s. 44 of the Schedule. Under s. 44, IEs are not mandatory, and the regulation specifically indicates that an insurer “may require” an insured person to be examined under the section. On a plain reading of the provision, “may require” does not place a mandatory burden on an insurer. RMS’ argument that Allstate failed to reschedule the IEs within 10 days of him advising that he is willing to re-attend is not in accordance with any provision under the Schedule. In addition, there is no evidence that Allstate’s denial were improper, or that they failed to comply with s. 38(8) of the Schedule, therefore, it is not prohibited from relying on the MIG designation as it pertains to its determination of the seriousness of RMS’ accident-related injuries.
Are the OCF-18s reasonable and necessary?
16Having found that RMS suffered injuries that are captured within the MIG limits, and the MIG limits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required.
CONCLUSION
17RMS has not demonstrated, on a balance of probabilities, that his injuries warrant removal from the MIG. As the MIG limits have been exhausted, RMS is not entitled to payment for the disputed OCF-18s. No interest is payable.
Released: February 8, 2023
Derek Grant
Adjudicator