Licence Appeal Tribunal File Number: 22-001347/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:
Jaiden Downey (MINOR) (A minor by their litigation guardian, Rolanda Downey)
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Jaiden Downey, Applicant Rolanda Downer, Applicant’s Mother Marina Korshunova, Paralegal
For the Respondent: Monique Quintal, Senior Claims Representative Emily Wilson, Counsel
Court Reporter: Paula Monahan
Heard by Videoconference: In writing, with a video portion of the hearing held on June 14, 2023
OVERVIEW
1Jaiden Downey, (the "applicant"), was involved in an automobile accident on September 14, 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 Intact Insurance (the "respondent") on the basis that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (the "MIG"). The applicant 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 the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to $4,022.42 for physiotherapy treatment, proposed by Focus Physiotherapy in a treatment plan submitted on June 16, 2020, and denied on September 18, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not shown that removal from the minor injury guideline (the "MIG") is warranted.
4The treatment plan ("OCF-18") for physiotherapy treatment is not reasonable and necessary.
5The applicant is not entitled to interest.
ANALYSIS
The applicant's injuries fall within the Minor Injury Guideline
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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."
7An insured person 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.
8The applicant submits that his physical injuries sustained as a result of the accident, his accident-related psychological injuries and pre-existing issues remove him from the MIG. The respondent disagrees.
The applicant's physical injuries are minor
9In terms of the applicant's physical injuries, he submits that his scoliosis, chronic ankle pain and neck pain should remove him from the MIG. The applicant relies on the clinical notes and records ("CNR"s) of his family doctor, Dr. Antonio Choi, where he reported his neck and ankle pain after the accident.
10The applicant also relies on the Insurer's Examination ("IE") of Dr. Charanjit Sandhu, occupational medicine specialist, dated August 31, 2020, where the doctor found upon physically examining the applicant that he had tenderness in his lateral malleolus and over the dorsal surface of his ankle. The applicant also reported his ankle and neck pain to Dr. Sandhu.
11The applicant submits that due to his ongoing pain and symptoms from the accident, he was referred to an orthopedic surgeon by Dr. Choi.
12The applicant also relies on the treatment and assessment plan ("OCF-18") of Alison Parker, physiotherapist, dated June 16, 2020, which placed the applicant's injuries outside the MIG. Ms. Parker noted that:
13Ms. Parker also submits under barriers to recovery:
The patient has regressed and deconditioned due to the delayed treatments. Patients have the right to receive appropriate treatments promptly. The MIG is a 12-week program with an extension model of care that requires continuous treatment and monitoring for it to succeed. The program is no longer appropriate and new individualized comprehensive rehabilitation program is being submitted to reverse the effects of being without treatment for so long.
Previously submitted MIG program can no longer apply or the patient will be unable to recover. Programs, like the MIG, based on time and a functional restoration model, we have reviewed the appropriateness to ensure the best care for the patient. The patient is no longer suitable for the MIG and will require significantly more comprehensive care that when they first presented. The patient needs to be placed outside of the MIG. This new more comprehensive treatment plan offers the best course of action to ensure that patient recovers.
14The applicant submitted that evidence of his ongoing pain was supported by the CNRs of his physiotherapists and family doctor. The applicant also submits he was diagnosed with scoliosis based on an x-ray taken on March 22, 2021.
15The applicant also relies on the affidavit and cross-examination by video of his mother, Rolanda Downey. Ms. Downey testified that as a result of the applicant's accident, he was living with ongoing pain that impacted his physical functioning which prevented the applicant from playing basketball and attend school.
16Ms. Downey also testified that the applicant had been using cannabis after the accident to address his pain and physical impairments. Ms. Downey confirmed that the applicant was diagnosed with cannabis hyperemesis syndrome on August 13, 2021, which the applicant submits was because the applicant could not find other relief for his accident-related pain.
17The respondent submits that the applicant's alleged chronic neck and ankle pain does not warrant removal from the MIG based on the decision of Kaur v. Aviva General Insurance, 2021 CanLII 54819 (ON LAT). In this decision, the Tribunal found that consistent pain complaints are not a basis to be removed from the MIG rather there must be a diagnosis of chronic pain, or the chronic pain must be accompanied by evidence of functional impairment.
18The respondent submits that the applicant's submissions that his family doctor and physiotherapist contain many references to the applicant's pain but then did not direct the Tribunal to any specific records or dates.
19The respondent notes that the applicant's cannabis was not prescribed by a medical professional, and he has not shown his use is as a result of the accident. Moreover, the respondent notes that when the applicant was hospitalized on August 13, 2021, for his cannabis hyperemesis syndrome, the applicant was specifically advised by Dr. Niraj Mistry, pediatrician, to stop using cannabis.
20The respondent submits that the OCF-18 of Ms. Parker is irrelevant to the issue of the MIG, as a physiotherapist she is not qualified to diagnose the applicant's medical condition, nor does it provide any objective evidence related to the issue of the MIG.
21The respondent also submits that the applicant has not provided contemporaneous medical records that support Ms. Parker's findings.
22The respondent submits that the applicant only sought medical attention for his accident-related injuries on September 16, 2019, when he visited a walk-in clinic and saw Dr. Alled. Dr. Alled then sent the applicant for an X-ray, where no bone or joint abnormalities were found in the applicant's left femur, knee, tibia or fibula. Moreover, Dr. Alled noted in his CNR of July 4, 2020, that the applicant was "healthy".
23The respondent also submitted that the applicant only saw his family doctor, Dr Choi more than 4 months after his accident, based on Dr. Choi's CNR of January 29, 2020, where the applicant was neither referred to a specialist or prescribed medications for his accident-related injuries.
24The respondent relies on the IE of Dr. Sandhu of August 19, 2020, which found that the applicant suffered residual symptoms from myofascial sprains to his left ankle and had reached maximum medical recovery. Dr. Sandhu opined that the applicant's injuries fell within the MIG. Concerning the applicant's submissions, the respondent submits that the tenderness, sprains and strains found by Dr. Sandhu fall squarely within the definition of MIG injuries.
25The respondent also submits that the affidavit and testimony of Ms. Downey are not credible and should not be afforded much weight. The respondent submits that Ms. Downey testified that the applicant did not suffer from any ankle injuries playing basketball before the accident. However, the respondent relies on the CNR from his walk-in clinic of dated August 9, 2017, where the applicant was diagnosed with a left-ankle lateral malleolus avulsion. The respondent relies on the further records of the applicant's walk-in clinic dated July 20, 2018, where the applicant was diagnosed with a right ankle and foot injury from a fall while playing basketball. The respondent finally relies on the CNR of the applicant's walk-in clinic, where he suffered another left ankle injury while playing basketball.
26The respondent submits Ms. Downey's opinions are not that of a doctor or medical expert. The respondent also argues that her assertions that the applicant's scoliosis and ankle issues were caused by the accident are not supported by contemporaneous medical evidence. Moreover, the applicant has not shown that his scoliosis diagnosis can be linked to his accident.
27I find that the applicant has not demonstrated that his physical, accident-related injuries warrant removal from the MIG.
28When considering the applicant's physical injuries, I agree that the applicant reported subjective pain to Dr. Alled and Dr. Sandhu. However, I also agree with the respondent's argument that complaints on their own do does not warrant removal from the MIG, as seen in Kaur v. Aviva General Insurance.
29In terms of the applicant's scoliosis diagnosis, I was not provided with any medical evidence that directly linked the applicant's condition to his accident. Though I appreciated Ms. Downey's testimony, I agree that her theory that the applicant's scoliosis was caused by the accident was not supported by evidence. Therefore, I do not find this to be a basis to remove the applicant from the MIG.
30I did not find Ms. Downey's evidence provided any medical basis to remove the applicant from the MIG due to physical injuries. Though I appreciated her observations of the applicant's alleged injuries, I find that these are subjective findings, and unsupported by medical evidence. Therefore, I did not find Ms. Downey's medical opinions convincing.
31I did not find Ms. Parker's OCF-18 persuasive that the applicant's injuries fell outside the MIG. Though I found Ms. Parker's opinions regarding the MIG are passionate, they do not support, from a medical or legal perspective, that the applicant's injuries are more than sprains, strains and sequelae.
32I considered the issue of the applicant's cannabis use in relation to his pain. I agree with the respondent and find that the applicant's cannabis use was both not recommended by a medical professional, and expressly not advised by a pediatrician. I did not find the applicant showed his pain warranted removal from the MIG.
33I also agree with the respondent that the applicant failed to point the Tribunal to many of the so-called ample CNRs from Dr. Choi and the applicant's physiotherapist. I did not undertake to search the records.
34For there reasons, the applicant has not shown that his physical injuries fall outside the MIG.
The applicant did not suffer a psychological injury
35In terms of the applicant's psychological injuries, the applicant submits that his accident-related depression and anxiety exclude him from the MIG. The applicant relies on the IE of Dr. Sandhu, where the applicant reported he no longer rides his bicycle due to his anxiety and was undecided if he was "open" to a psychological assessment.
36The applicant also relies on the previously discussed evidence of his mother, Ms. Downey. Ms. Downey reported that the applicant suffered from depression and self medicated with cannabis. She also reported that the applicant's sleep has been disturbed since the accident. Ms. Downey stated that the applicant experiences nightmares and interrupted sleep.
37Regarding the issue of the applicant's psychological injuries, the respondent submits that the applicant has not met his evidentiary onus of proving this based on a balance of probabilities. The respondent submits that the only evidence provided by the applicant regarding his psychological injuries was provided by his mother, who again, is not a medical professional.
38The respondent relies on the cross-examination of Ms. Downey, who confirmed that the applicant has not been diagnosed with a mental health condition and never sought treatment from a mental health professional, nor does he require this.
39The respondent also relies on the IE of Dr. Sandhu where the applicant reported he did not suffer from depression or nightmares but did report having flashbacks of the accident.
40In terms of Ms. Downey's assertions regarding the applicant's sleep, the respondent submits that Ms. Downey is not a medical professional. The respondent also submits that Ms. Downey's position is not supported in evidence, as the applicant has not reported to any of his treatment providers that his sleep has worsened.
41I find that the applicant has not shown that he suffers from psychological injuries requiring removal from the MIG. Though I agree that the applicant made subjective reports regarding his psychological symptoms to Dr. Sandhu and Ms. Downey, these reports do not amount to persuasive evidence that the applicant suffers from psychological injuries as a result of the accident.
42I also did not find Ms. Downey's opinions persuasive, as they were not supported by contemporaneous medical evidence. I would have expected the applicant to report further symptoms to his family doctor, Dr. Choi, or seek out professional, medical help, which was not the case. Without objective medical evidence showing that the applicant suffers from psychological injuries as a result of the accident, he has not met his evidentiary burden. Therefore, the applicant has not shown that he suffers from psychological injuries as a result of the accident.
The applicant's pre-existing injuries do not prevent him from reaching maximum medical recovery if confined to the MIG
43The applicant submits he was previously diagnosed with restless leg syndrome, restless sleep, mild, elevated sleep apnea, ankle pain, and foot injuries. The applicant relies on the CNRs of Dr. Choi from 2015, 2018, and 2019.
44The applicant also relies on an x-ray from Dr. Jalal Alled, internal medicine specialist, which noted that the applicant had a subcortical lucency suggestive of a non-ossifying fibroma, also known as a benign tumour, in a CNR dated August 9, 2017. The applicant also relied on the evidence of Ms. Downey.
45The applicant also submits his age, as he is a minor, and vulnerability, should be considered as a barrier to recovery within the MIG limits. The applicant notes that he was a minor at the time of the accident.
46The respondent submits that the applicant has not shown that he meets the legal test, which requires him to show he suffers from a pre-existing condition that requires treatment beyond the limits of the MIG to reach maximum medical recovery. The respondent submits that neither Dr. Choi nor Dr. Alled commented on this issue or if his conditions warranted removal from the MIG.
47In terms of the barriers to recovery being the applicant's age and vulnerability, the respondent submits that the applicant has not provided evidence or authorities to support this argument and therefore, it should not be considered.
48I find that the applicant has not shown that his pre-existing conditions require removal from the MIG to reach maximum, medical recovery. It was not disputed that the applicant has been diagnosed with several conditions before the accident.
49However, I was not presented with medical evidence that supported that the applicant's pre-existing injuries required treatment beyond the MIG's limits. I would have expected one of the applicant's doctors, be it Dr. Choi or Dr. Alled or another doctor at the walk-in clinic, to comment on the applicant's pre-existing conditions in light of his accident.
50I did not find Ms. Downey's evidence persuasive as it was not supported by contemporaneous medical evidence.
51I also found Dr. Sandhu's IE persuasive, as it was supported by Dr. Choi and Dr. Alled's contemporaneous medical records. Moreover, Dr. Sandhu's findings were supported by the totality of the evidence provided.
52Therefore, I find that the applicant has not shown that he suffers from a pre-existing condition that requires removal from the MIG to reach maximum, medical recovery.
53Since the parties agree that $2,190.25 remains under the MIG, I must determine if the applicant is entitled to this amount for the balance of his disputed OCF-18, despite his injuries being found within the MIG.
The applicant is not entitled to the $2,190.25 left in the MIG for physiotherapy
54To receive payment for a treatment and assessment plan under s.14, 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
55The applicant submits that the OCF-18 for physiotherapy is reasonable and necessary. The respondent disagrees.
56The applicant submits that the OCF-18 is reasonable to address his neck and ankle pain and states that Dr. Choi's CNRs "contain multiple and ample references to the pain that Jaiden was continuing to experience as a result of this accident."
57The applicant relies on the disputed OCF-18 of Ms. Parker. The applicant submits that the goals of this OCF-18 include pain reduction, increase in range of motion, increase in strength, improvement of function and normal gait, and return to activities of daily living. The applicant submits that this OCF-18 will address his chronic pain.
58The respondent submits that the disputed OCF-18 is not reasonable and necessary. The respondent relies on Dr. Sandhu's IE, where the doctor specifically commented on the disputed OCF-18 and found that it was not reasonable and necessary, as the applicant had reached maximum medical recovery.
59The respondent submits that the applicant has not met his evidentiary onus or provided medical opinions or evidence that support his entitlement to the disputed OCF-18. Again, the respondent notes that the applicant failed to direct the Tribunal to the CNRs of Dr. Choi that support the applicant's multiple complaints of pain.
60I find that the applicant is not entitled to the remaining balance of the MIG in relation to the disputed OCF-18 for physiotherapy. I agree with the respondent and find that the applicant has not met his evidentiary burden. Though I did consider the OCF-18 of Ms. Parker, I did not find that the treatment plan, without supporting contemporaneous evidence, shows that the disputed treatment is reasonable and necessary.
61I would have expected Ms. Parker's finding to be supported by Dr. Choi. However, the applicant failed to pinpoint which CNRs from Dr. Choi showed that the applicant repeatedly complained of neck and ankle pain or that the doctor recommended the disputed OCF-18. I again did not undertake to look through the doctor's CNRs, as that goes beyond my role as an adjudicator.
62However, even if I had been directed to these CNRs, I would have expected the applicant to provide evidence from Dr. Choi where the doctor comments on the applicant's need for physiotherapy, the lengths of these sessions and the duration of this treatment, which was not the case. I was also not provided with other, contemporaneous medical evidence which spoke to the disputed OCF-18 for physiotherapy.
63Instead, I preferred the evidence of Dr. Sandhu, who addressed the legal test in dispute and relied on objective medical findings. For these reasons, I find that the applicant has not shown that the disputed OCF-18 for physiotherapy is reasonable and necessary, and therefore, he is not entitled to payment for this. For these reasons, the applicant is not entitled to the remaining balance of the MIG, as he has not shown that the disputed OCF-18 for physiotherapy is reasonable and necessary.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are outstanding, no interest is payable.
ORDER
65The applicant has not shown that removal from the MIG is warranted.
66The OCF-18 for physiotherapy treatment is not reasonable and necessary.
67The applicant is not entitled to interest.
Released: October 27, 2023
Stephanie Kepman Adjudicator