Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-014242/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:
George Spyropoulos
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR: Neil Levine
APPEARANCES:
For the Applicant: Laura Di Paul, Paralegal
For the Respondent: Nicholas Voight, Counsel
HEARD: In Writing By way of written submissions
OVERVIEW
1George Spyropoulos, the applicant, was involved in an automobile accident on June 23, 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, Insurer, and 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 ("MIG") limit?
ii. Is the applicant entitled to $1,300.00 for chiropractic services from Mackenzie Medical Rehabilitation Centre proposed by Preety Somal, chiropractor in a treatment plan (OCF-18) dated October 10, 2020?
iii. Is the applicant entitled to $1,097.72 for chiropractic services from Work Fit Oakville proposed by Gina Concepcion, physiotherapist in a treatment plan (OCF-18) dated November 6, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has demonstrated that they should be removed from the MIG.
4The applicant is entitled to the treatment plans:
i. $1,300.00 for chiropractic services from Mackenzie Medical Rehabilitation Centre dated October 10, 2020; and
ii. $1,097.72 for chiropractic services from Work Fit Oakville proposed by Gina Concepcion, physiotherapist dated November 6, 2020?
5The applicant is entitled to interest.
ANALYSIS
Applicability of the MIG
6The Tribunal has determined that an applicant may be removed from the MIG if they suffer from chronic pain that causes functional impairment. I find that to be the case here. The applicant has proven based on the balance of probabilities that his injuries were not predominantly minor as defined by the Schedule.
7Section (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."
8An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule," 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 the insured person is kept within the confines of the MIG. I find that to be the case here.
9The burden is on the applicant to show, on a balance of probabilities, that his injury falls outside of the MIG.
Pre-existing knee condition
10The applicant is seeking to be removed from the MIG on the basis of his pre-existing knee condition.
11As set out above, the test for a pre-existing condition, under s. 18(2) is whether the insured has a documented pre-existing medical condition combined with compelling medical evidence showing that the condition precludes recovery if the insured person is kept within the confines of the MIG.
12The clinical notes and records show that the applicant's conditions before the application included degenerative osteoarthritis, medial meniscus tears and other conditions that necessitated steroid injections and arthroscopic surgeries.
13Clinical notes and records show that the conditions as a result of the accident included quadriceps inhibition, dislocations, and chondral degeneration. Treatments post-accident included corticosteroid injections and physiotherapy. There is significant evidence to suggest that the applicant was precluded from recovery within the MIG because the injuries were worsened due to the accident and he required additional treatments which precluded his recovery within the MIG.
14The respondent submits that the left knee complaints were degenerative and have resolved post-accident, based on Dr. James Kenneth Stewart's assessment (December 29, 2020). In short, the respondent submits that only uncomplicated soft-tissue injuries were sustained. The respondent also submits, based on this assessment, that no pre-existing conditions exist that would take the applicant out of the MIG.
15Dr. Stewart's assessment says there are no prior conditions that would have prevented the applicant from achieving a full recovery from the accident's injuries. I find this difficult to believe because the applicant's pre-accident conditions were apparent and recovery from his injuries has been precluded by recovery inside the MIG, based on the applicant's medical records. I note that Dr. John Deliakis and orthopedic surgeon Dr. Amit Atrey have both opined on the complexity and severity of the applicant's post-accident injuries and complications.
16The only instance of the applicant improving was clinical notes and records from Dr. Deliakis from August 21, 2020, in which it is noted that the applicant was doing better and walking.
17However, by October 30, 2020 Dr. Deliakis's CNRs note that the applicant regressed. The left knee tear persisted and there were continued dislocations noted. Two years later, Dr. Atrey, the orthopedic surgeon, noted patellofemoral osteoarthritis and quadriceps inhibition (March 10, 2022). Recurrent dislocation and meniscal injuries were also noted by Dr. Deliakis later that same year.
18The respondent submits that the December 29, 2020 examination by Dr. Kenneth Stewart concluded that the injuries have resolved. I do not accept this submission.
19The more complete picture is that of someone who had not recovered but instead had regressed. And in sum, these continuing issues present as an ongoing impairment and mean that maximal recovery is not possible within the MIG.
20The Musculoskeletal Examination Report by Dr. James Kenneth Stewart opines that no prior conditions would have prevented a full recovery from the accident's soft tissue injuries, implying that ongoing pain, complications and requirement for medical attention mean that treatments beyond the MIG are not required. However, the evidence by the applicant's own doctor and orthopedic point to the contrary: pre-existing conditions were complicated by injuries from the accident and hence maximal recovery within the MIG is not possible. Given the functional impairment, there is no need to address the issue of chronic pain though the applicant made submissions about this as well.
21At issue in this case are two treatment plans:
i. $1,300.00 for chiropractic services from Mackenzie Medical Rehabilitation Centre dated October 10, 2020; and
ii. $1,097.72 for chiropractic services from Work Fit Oakville proposed by Gina Concepcion, physiotherapist dated November 6, 2020?.
22To receive payment for a treatment and assessment plan under s. 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.
23The applicant submits that his pre-existing osteoarthritis should influence the threshold for what is reasonable and necessary. The applicant submits that both these treatment plans are important in reducing his pain, increasing strength and improving overall function given that his ongoing and current levels of functioning (and his recovery) are impaired as a result of the accident.
24The respondent relies on Dr. James Kenneth Stewart's second assessment, dated December 29, 2020, to deny these claims. The respondent submits that the applicant's pre-existing left knee degenerative issues did not prevent him from full recovery under the MIG.
25Evidence supplied by the applicant, including clinical notes and records, has shown that the accident coupled with the applicant's pre-existing conditions have resulted in two problems: functional impairment and chronic pain. Accordingly, I am satisfied that these treatment plans in dispute are necessary and reasonable, and the applicant would be aided by these plans to address these issues and reach a maximal recovery.
Interest
26Interest shall apply on the payment of these benefits pursuant to s. 51 of the Schedule.
ORDER
27I find that the applicant:
i. Shall be removed from the MIG.
ii. Is entitled to a treatment plan for chiropractic services in the amount of $1,300.00.
iii. Is entitled to a treatment plan for chiropractic services in the amount of $1,097.72
iv. Is entitled to interest.
Released: October 22, 2024
Neil Levine
Vice-Chair