Licence Appeal Tribunal File Number: 21-013063/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:
Sethuraman Sarvanantharajah
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Erin Neal, Counsel
For the Respondent: Nicole A Dowling, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sethuraman Sarvanantharajah, the applicant, was involved in an automobile accident on October 6, 2019, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute as listed in the Case Conference Report and Order 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 in the Minor Injury Guideline?
ii. Is the applicant entitled to $1,057.90 ($3,172.90 less $2,115.00 approved) for physical therapy services, proposed by KN Rehabilitation Clinic in a treatment plan submitted on October 12, 2019? (Withdrawn)
iii. Is the applicant entitled to $2,089.95 for physical therapy services, proposed by KN Rehabilitation Clinic in a treatment plan submitted on December 7, 2019?
iv. Is the applicant entitled to $2,115.00 for physical therapy services, proposed by KN Rehabilitation Clinic in a treatment plan submitted on March 17, 2020?
v. Is the applicant entitled to $2,115.00 for physical therapy services, proposed by KN Rehabilitation Clinic in a treatment plan submitted on October 19, 2019? (Withdrawn)
vi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions for this written hearing, the applicant withdrew issues 2(ii) and (v) as listed above.
RESULT
4I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute or interest; and
iii. The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline
5Section 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. 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.”
6An 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.
The applicant has not established that he should be removed from the MIG
7The applicant has not provided specific submissions on which ground he seeks removal from the MIG.
8In terms of physical impairments, I agree with the respondent that the applicant has not established injuries that warrant removal from the MIG. Although the applicant argues that he sustained injuries to his lower back and neck, the hospital records, clinical notes and records (“CNRs”) of Fenton Medical Centre, the OCF-3 and the records of KN Rehabilitation Clinic do not identify anything other than strain and sprain type injuries, which fall squarely within the definition of the MIG. The applicant further submits diagnostic imaging dated October 12, 2019, revealing mild degenerative disc disease and an accessory ossicle. However, the applicant has not provided any medical opinion or evidence that these impairments were accident-related and would warrant removal from the MIG.
9Although in his submissions the applicant makes reference to pre-accident back pain, I do not find that the applicant has led sufficient evidence that this condition is a pre-existing injury that precludes recovery if he were kept within the MIG. The applicant has provided only one reference to pre-existing back pain, a hospital visit from December 19, 2017 for low back pain, almost two years before the subject accident. I agree with the respondent that this singular visit is not sufficient evidence to establish a pre-existing impairment. Even if I were to accept that this note establishes back pain as a pre-existing injury, there is no opinion from a medical practitioner that it prevents his recovery from any accident-related minor injury if he were kept within the MIG.
10The applicant further has not established a basis for removal from the MIG on psychological grounds. Although the applicant did not provide specific submissions on psychological impairments, he references an OCF-3 dated October 12, 2019, which lists insomnia and PTSD as impairments. However, I agree with the respondent that such a psychological diagnosis would be beyond the scope of Dr. Duong’s practice, as a chiropractor.
11I also find that the medical record does not establish the basis for an accident-related psychological impairment. The applicant references a CNR entry from Fenton Medical Centre, where three days after the accident he was assessed with acute stress disorder. In a subsequent entry a few weeks later, the applicant complained of insomnia. I do not find that these isolated CNR entries in the initial weeks post-accident, are sufficient evidence of a psychological impairment warranting removal from the MIG. The applicant does not direct me to any other doctor’s visits where he reported psychological symptoms, sought psychological treatment or obtained a formal psychological diagnosis.
12Finally, the applicant appears to be making a general submission that he has developed chronic pain as a result of the accident. No specific submissions were provided by the applicant on this issue, other than the statement that he continued to report accident-related complaints within a year of the accident and that a formal diagnosis of chronic pain is not required to remove an insured from the MIG.
13I do not find that the applicant has met his onus to prove accident-related chronic pain. The applicant has led limited evidence of any ongoing pain complaints to a medical practitioner. In the first few weeks post-accident, the applicant reported back pain in hospital and to his family physician. However, the applicant does not direct me to any CNR entry from Fenton Medical Centre, indicating that he continued to report back pain after October 24, 2019. There is no reference to any referral to a chronic pain specialist, investigations with respect to ongoing pain, or request for prescription pain medication. Further, no evidence has been provided of any functional impairment, or a chronic pain diagnosis. Similarly, the applicant has not provided any submissions or evidence to establish that he met any of the American Medical Association’s (“AMA”) Guides criteria for a diagnosis of chronic pain.
14Given the foregoing, I find that the applicant has not established that he should be removed from the MIG.
15In its submissions, the respondent has confirmed that the full MIG limit of $3,500.00 for medical and rehabilitation benefits has been approved. As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
16However, the applicant raises the alternative argument that the two treatment plans (“OCF-18”) in dispute are payable, due to the respondent’s non-compliance with s. 38(8) of the Schedule.
17I find that the applicant has not established that either of the treatment plans in dispute are payable pursuant to s. 38(8).
18The applicant submits that the respondent was non-compliant with s. 38(8) of the Schedule, as the treatment plan in dispute had been submitted on December 7, 2019, but was not denied until December 23, 2019. As such, the applicant argues that the respondent was well outside the 10 business day limit stipulated by s. 38(8).
19The respondent disputes that it was non-compliant with s. 38(8) and submits that the applicant has mischaracterized the issue in dispute. It argues that the $2,089.95 amount claimed was not pursuant to an OCF-18 (treatment and assessment plan), but rather, the respondent had received an OCF-21 (invoice) from KN Rehabilitation Clinic for the stated amount on December 7, 2019. The respondent submits that it replied to the invoice well within the 30 days allotted for payment of an invoice pursuant to s. 38(15) of the Schedule. It states that in its response, it had requested that the applicant provide documentation to show that the claimed treatment had first been submitted to the applicant’s collateral benefits provider, pending which the outstanding amounts would be paid. It submits that to date, it has not received the requested documentation or the applicant’s collateral benefits file. The applicant did not provide any submissions on this issue in his reply submissions.
20I agree with the respondent that the applicant has not established that the respondent was non-compliant with s. 38(8). Although the CCRO listed the issue in dispute as a “treatment plan” in the amount of $2,089.95, the applicant has not provided an OCF-18 in that amount. Rather, the applicable form submitted was an invoice or OCF-21. I note that the respondent further provided its response to this invoice within the 30 days stipulated by s. 38(15).
21The applicant has not provided any submissions or evidence to address the fact that the OCF form in dispute was an invoice, rather than a treatment plan. Nor has the applicant provided any arguments to address the respondent’s rebuttal that its response was within the 30 days required by s. 38(15). Without any submissions or evidence from the applicant on this issue, I find that the applicant has failed to establish that the respondent’s response was non-compliant with s. 38 of the Schedule.
22The applicant argues that the respondent’s denial letter dated March 18, 2020 is non-compliant with s. 38(8) of the Schedule, as it failed to provide a medical reason for its denial. He submits that the Explanation of Benefits (“EOB”) dated March 18, 2020 did not provide any specific medical reasons relating to his condition, in contravention of the principles of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT).
23The respondent submits that the applicant has erred in his description of the OCF-18, as the document in question was an OCF-23 (treatment confirmation form) rather than an OCF-18 (treatment and assessment plan). It further contends that its correspondence was compliant with s. 38(8) as it clearly provided an explanation for its denial.
24I agree with the respondent. The EOB provided in detail why the respondent did not approve the $2,200.00 amount stipulated in the Treatment Confirmation Form. The respondent noted that the stated amount was duplicative as the goods and services had previously been approved under a prior OCF-18 in the amount of $2,115.00, commensurate with the MIG. The respondent further states that these amounts had already been invoiced, and that it still required the requested collateral benefits documentation relating to the previously invoiced treatment. I find that the respondent’s denial is compliant with s. 38(8). It clearly provides the reason for the denial, identifies the information it still requires from the applicant, and is clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the denial.
25As such, I find that the applicant has not established that the respondent was non-compliant with s. 38(8) of the Schedule.
Interest
26Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
27As no benefits are overdue, no interest is payable under s. 51.
Award
28Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.
29In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.
ORDER
30For the reasons set out above, I find that:
(i) The applicant’s injuries fall within the MIG;
(ii) The applicant is not entitled the disputed treatment plans; and
(iii) The applicant is not entitled to interest or an award.
31The application is dismissed.
Released: October 16, 2023
Ulana Pahuta
Adjudicator