Licence Appeal Tribunal File Number: 22-014154/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:
Dieulus Ariste
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Maia Abbas, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Dieulus Ariste (the “applicant”), was involved in an automobile accident on December 1, 2020, 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 Economical Mutual Insurance Company (the “respondent”) 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 section 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 8, 2020, to date and ongoing?
iii. Is the applicant entitled to the following services and assessments proposed by E Clinic United Healing as follows:
(a) Chiropractic services in the amount of $1,136.55 in a treatment plan (“OCF-18”) dated February 26, 2021;
(b) Chiropractic services in the amount of $3,195.84 in an OCF-18 dated March 18, 2021;
(c) A psychological assessment in the amount of $1,920.53 in an OCF-18 dated March 23, 2021; and
(d) Psychological services in the amount of $2,883.64 in an OCF-18 dated May 12, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to the disputed OCF-18s or an IRB. No interest is payable.
ANALYSIS
Applicability of the MIG
4I find the applicant has failed to demonstrate he should be removed from the MIG.
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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery of his accident-related minor injuries if he is 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.
6In this matter, the applicant says his injuries fall outside the MIG and that he suffered psychological impairments owing to the accident. The applicant’s submissions also speak to accident-related chronic pain with functional impairment.
Do the applicant’s injuries fall outside the MIG?
7No. The applicant has not shown that his injuries warrant removal from the MIG.
8The applicant submits that the credibility of the April 2021 assessment by Dr. Harinder Mrahar (psychologist) was never challenged by the respondent and significant weight should therefore be placed on this evidence in absence of a dissenting medical opinion produced by the respondent. The applicant says the lack of family physician records—which he justifies on the basis of “fear-mongering” and forced closures of facilities and resources owing to the pandemic—is not grounds to dismiss the severity of his impairments because he sought medical attention from the health care practitioners who were responsible for providing continued care and treatment recommendations. The applicant also argues that his consistent attendance to treatment, continuous complaints to assessors and practitioners, and the diagnoses provided by healthcare practitioners and Dr. Mrahar is sufficient evidence to demonstrate that removal from the MIG is warranted. The applicant relies on Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) to show that considering the unique circumstances of each case is important when determining whether injuries fall within the MIG. He therefore reasons that treatments should be granted if credible medical evidence suggests the applicant’s injuries are more complex than minor injuries.
9The respondent’s submissions do not directly address the applicant’s claims of his physical injuries falling outside the MIG, and assert the applicant relies wholly on the psychological assessment of Dr. Mrahar to demonstrate that he should be removed from the MIG.
10I disagree with the applicant’s position that his evidence merits full weight on the basis that the respondent did not present contradictory opinions. The onus is on the applicant to make his case and there is no requirement for the respondent to prove otherwise. The absence of evidence from the respondent to contradict the applicant’s evidence cannot inescapably mean that the only possible outcome is to accept the applicant’s evidence as persuasive; doing so misunderstands the burden of proof.
11Further, the applicant does not point to physical injuries that are inconsistent with the definition of minor injury in the Schedule. On December 10, 2020, he complained to Dr. Shoghi Nikoo (family physician) of lower back and neck pain starting the day after the accident, which intensified when laying down to sleep or bending forward. Dr. Nikoo diagnosed muscle strain, and an x-ray completed the following day showed no significant abnormality. In my view, these physical injuries fall squarely within the MIG and do not support the applicant’s claim.
12Scarlett does not assist here. The applicant failed to point to where his arguments are supported in this authority as required by the case conference report and order (“CCRO”) for this matter. The CCRO specifies that submissions shall make specific reference to the evidence and law by tab and page number, which the applicant did not do here. In my view, the thrust of Scarlett pertains to the applicant’s onus to prove his case as opposed to establishing that the unique circumstances of each case are important when determining whether injuries fall within the MIG.
13The applicant’s attendance at treatment for his injuries does not establish that his injuries fall outside the MIG. Even if I agreed his treatment attendance was relevant to the Schedule’s definition of minor injury, I would place little weight here because the applicant failed to pinpoint evidence—in the 28 largely illegible handwritten pages of treatment records—that substantiate his submissions. In my view, the treatments undertaken by the applicant (i.e., chiropractic, physiotherapy, and exercise) are consistent with the soft-tissue injuries documented in the medical evidence. The physical improvements that the applicant says are documented in the treatment records of February 22, 2021, and March 15, 2021, relate to the types of soft-tissue injuries defined as minor by the Schedule. While I recognize the applicant submits he still complained of pain despite making improvements in range of motion, I do not accept that pain which is sequalae to accident-related injuries falls outside the MIG.
Does the applicant suffer chronic pain with impairments as a result of the accident?
14No. The applicant falls short of his onus to prove MIG removal is warranted by chronic pain with functional impairment.
15The applicant submits that his diagnosed mental disorder, combined with chronic pain’s impact on his daily functioning, exceeds the scope of the MIG.
16The respondent’s submissions do not directly address the applicant’s claims of chronic pain with functional impairment, and assert the applicant relies wholly on the psychological assessment of Dr. Mrahar to demonstrate he should be removed from the MIG.
17While I accept the applicant says he experienced pain that caused functional impairments, I disagree that the applicant has shown his pain to be chronic in nature. To prove chronic pain, the applicant should produce evidence of chronic pain syndrome, or otherwise demonstrate his pain is a severe and debilitating condition that has endured for at least six months. The applicant did not point to a medical opinion that qualified his pain as chronic, or a diagnosis of chronic pain syndrome. The applicant failed, in accordance with the CCRO, to pinpoint evidence in his treatment records that shows his pain is severe or debilitating, or that it amounts to a functional limitation.
18Even if the applicant’s submissions had complied with the Tribunal’s orders and made specific reference to his evidence, I would still find he falls short of substantiating his claims of chronic pain. The applicant’s submissions relate that within roughly 12 weeks of the accident, his pain levels had improved from a severity of seven out of 10 to a one or two out of 10. The applicant’s neck, based on a normal range of motion of 80 per cent, had reached 70 per cent rotation. The applicant’s range of motion in his lower back—which he says should be 90 per cent flexion (i.e., bend forward) and 30 per cent extension (i.e., bend backwards) to be in the normal range—had reached 70 per cent extension and 20 per cent extension within about eight weeks of the accident. In my view, these descriptions of improvements in the applicant’s pain and range of motion in his neck and low back are inconsistent with pain that is chronic. Regardless, suffering from chronic pain, in and of itself, is not sufficient for an applicant to be removed from the MIG unless the chronic pain amounts to a functional limitation. The applicant has not substantiated that he suffers from a functional limitation as a result of his pain.
Did the applicant sustain an accident-related psychological impairment?
19No. The applicant has failed to demonstrate he suffered a psychological impairment because of the accident.
20The applicant submits that the section 25 psychological assessment conducted by Dr. Mrahar “clearly” outlines significant psychological impairments that include adjustment disorder with mixed anxiety and depressed mood. The applicant relies on Pastore v. Aviva Canada Inc., 2012 ONCA 642 (“Pastore”) as a “precedent for entitlement to benefits beyond the (MIG), specifically in cases where psychological impairments are evident.”
21The respondent argues that the applicant relies wholly on Dr. Mrahar’s psychological assessment, which is largely based on the applicant’s self-reporting and is not corroborated by medical evidence. The respondent relies on Carreiro v. Wawanesa, 2022 CanLII 8662 ON LAT (“Carreiro”) as well as Kin v Wawanesa, 2023 CanLII 113744 ON LAT (“Kin”) to show the applicant has not met his burden of proof to substantiate an ongoing psychological impairment where there is no corroborating evidence that the applicant was struggling with psychological issues. The respondent adds that the psychometric testing conducted by Dr. Mrahar showed only mild depression and anxiety. The respondent relies on M.K. v Aviva, 2019 CanLII 43873 ON LAT (“M.K.”) to show the Tribunal has rejected Dr. Mrahar’s conclusions in similar circumstances before. The respondent goes on to say that the fact the applicant has not consulted his family physician about his complaints calls the severity of his symptoms into question.
22In my view, the lack of contemporaneous evidence pertaining to the applicant’s claims of psychological impairment hinders his case. Aside from Dr. Mrahar’s April 2021 report, the applicant does not refer me to evidence that corroborates his claims relating to sleep difficulties, daytime fatigue, decreased energy, feelings of stress and sadness, and preoccupations with negative changes following the December 2020 accident. Dr. Mrahar’s opinion is undermined by the absence of any other references to psychological impairments in the evidence referenced by the applicant’s submissions. All of the references made by both parties to Dr. Nikoo’s records make no mention of psychological issues, including any symptomatology consistent with D. Mrahar’s diagnosis. Similarly, there are no references to referral for psychological assessment or treatment by Dr. Nikoo. This diminishes the weight I afford Dr. Mrahar’s assessment as evidence of psychological impairment. I do not accept the applicant’s claim that complications arising from the pandemic mitigate his lack of family physician records because he was able to obtain a consultation with his family physician within nine days of the accident, as well as obtain assessments and treatments for his physical injuries in the month prior to his consultation with Dr. Mrahar.
23I therefore disagree that the applicant has shown he should be removed from the MIG because of a psychological impairment arising from the accident.
The applicant’s entitlement to the disputed OCF-18s
24The applicant is not entitled to any of the disputed OCF-18s. It is unnecessary to assess the reasonableness and necessity of these OCF-18s because the applicant remains in the MIG, and the parties agree the MIG limits have been exhausted.
The applicant’s entitlement to an IRB
25I find the applicant has not demonstrated entitlement to an IRB.
26To receive payment for an IRB under section 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
27To receive payment for a post-104-week IRB under section 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
28The applicant made no submissions concerning his IRB claim, nor did he lead evidence in this regard.
29The respondent argues that the applicant has not made any submissions concerning his IRB claim and adds that he failed to confirm his return-to-work date and substantiate the weekly value of the IRB. The respondent therefore reasons that the applicant has abandoned his IRB claim, or, alternately, that he has failed to establish entitlement.
30The onus to prove IRB entitlement falls to the applicant. The applicant cannot meet this onus if he fails to make submissions and lead evidence to prove his case. I am therefore not persuaded that the applicant has demonstrated entitlement to an IRB.
Interest
31Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue benefits in this case, so no interest is payable.
ORDER
32The applicant remains in the MIG and is not entitled to the disputed OCF-18s or an IRB. No interest is payable. The application is dismissed.
Released: November 21, 2024
Michael Beauchesne
Adjudicator