Licence Appeal Tribunal File Number: 22-007235/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:
Timothy Brooks
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Fleming
APPEARANCES:
For the Applicant:
Shen Subramaniam, Counsel
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Timothy Brooks, the applicant, was involved in an automobile accident on May 7, 2018, 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, Cooperators General 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 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? Note: The parties, in their submissions, agree the MIG limits have been exhausted.
ii. Is the applicant entitled to the amount of $2,190.00 for a chronic pain assessment, proposed by Alexmiur Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted on March 8, 2021, and denied on March 15, 2021?
iii. Is the applicant entitled to the amount of $2,180.00 for a psychological assessment, proposed by Whitby Wellness Centre LTD in a plan submitted on March 25, 2021, and denied on March 29, 2021?
iv. Is the applicant entitled to the amount of $93.10 ($998 less $904.90 approved) for physiotherapy services, proposed by Whitby Wellness Centre in a plan submitted and denied on May 25, 2021?
v. Is the applicant entitled to the amount of $2,538.26 for physiotherapy services, proposed by Whitby Wellness Centre in a plan submitted on August 27, 2021, and denied on September 1, 2021?
vi. Is the applicant entitled to the amount of $593.85 ($3,074.35 less $2,480.50 approved) for physiotherapy services, proposed by Whitby Wellness Centre in a plan submitted and denied on February 5, 2021?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG.
4The applicant is not entitled to the treatment plans in dispute.
5The respondent is not liable to pay a special award because it unreasonably withheld or delayed payment to the applicant.
6Interest does not apply to the payment of overdue benefits in accordance with s. 51 of the Schedule.
ANALYSIS
Applicability of the MIG
7I find that the applicant has not demonstrated that he should be removed from the MIG.
8Section 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.”
9The applicant may be removed from the MIG if they can establish their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.
10In this matter, the applicant seeks to be removed from the MIG because of his chronic pain and a related psychological impairment.
The applicant is not removed from the MIG due to chronic pain
11The applicant relies on Dr. Boulos’ recommendation for the applicant to remain off work and the physiotherapist’s notes on ongoing low back pain to support their claim of chronic pain.
12The respondent submitted that the applicant’s injuries fall within the MIG and are not severe enough to warrant treatment outside the MIG. The respondent relies on the lack of continuous medical evidence and the impact of a subsequent motor vehicle accident in 2019.
13The applicant relies on the clinical notes and records of Dr. Boulos’ from May 14, 2018, to prove that the applicant suffers from chronic pain. The applicant submitted that Dr. Boulos advised the applicant to remain off work until reassessed. However, Dr. Boulos did not advise the applicant to remain off work. Dr. Boulos advised the applicant to start modified duties and avoid heavy physical exertion at work. According to the clinical notes and records from Bowmanville Physiotherapy, this meant self modifications at work and regular hours with duties consisting of paperwork and physical work. The clinical notes and records of Bowmanville Physiotherapy indicate that the applicant was discharged from care May 24, 2018, and returned for treatment services after a second motor vehicle accident on May 21, 2019. The applicant received care until August 27, 2019. The applicant did not refer to any other evidence that supports a finding that he should remain off work or that he missed any work.
14I find that the applicant has not established that he has chronic pain with a functional impairment that warrants removal from the MIG. I find that the evidence supports that Dr. Boulos advised that the applicant was able to return to work at regular hours at work, which included physical work. I also find the fact that there was a second accident in May 2019, which was not referenced in the applicant’s submissions, to be significant. In my view, it is more likely than not that the applicant returned to Bowmanville Physiotherapy for treatment services for the second accident and not for treatment related to chronic pain from the first accident. This is evidenced by the fact that according to the OCF-24 dated May 24, 2018, the applicant was discharged from Bowmanville Physiotherapy with no additional interventions required and had returned to work full-time.
15Furthermore, there is a lack of continuous medical evidence. The applicant did not refer to medical evidence to support the claim of ongoing pain or limited function between the date of the first accident and February 8, 2021. The applicant did not provide medical evidence of pain or limited function beyond 2020. The Canada Life benefit statement referenced by the respondent and dated February 8, 2021, provides evidence that the applicant had access to collateral health benefits. The applicant did not refer to medical or treatment evidence between August 27, 2019, and February 8, 2021, from the collateral benefits provider to support the claim of ongoing pain.
16I find that the applicant has not met his burden of proof on a balance of probabilities that he should be removed from the MIG on the basis of chronic pain with functional impairment.
The applicant is not removed from the MIG on the basis of a psychological condition
17The applicant submitted that he developed a psychological condition, specifically depression and anxiety after dealing with low back pain and resulting functional limitations since the accident. The applicant did not provide any supporting evidence of a psychological condition. The applicant submitted that it is typical that injured persons develop psychological symptoms years following the accident. However, there is no evidentiary support for this submission. Lastly, the applicant’s position is that his psychological condition is the result of his suffering from chronic lower back pain and functional limitations due to the 2018 accident. As set out above, I have determined that he has not met his burden of proof for chronic pain and functional limitations.
18I find that the applicant has not met his burden to establish on a balance of probabilities that he should be removed from the MIG on the basis of a psychological condition.
Assessments and Treatment Plans
19As I have found that the applicant remains in the MIG and the parties agree that the limits have been exhausted, the applicant is not entitled to the treatment plans in dispute.
Interest
20As I have found that the applicant remains in the MIG and the parties agree that the limits have been exhausted, interest does not apply on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
21The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
22I find that the applicant is not entitled to a special award since no benefits were withheld or delayed.
ORDER
23For the reasons set out above, I find that:
i. The applicant has not demonstrated that their injuries warrant removal from the MIG.
ii. As the MIG limits have been exhausted, the applicant is not entitled to the treatment plans in dispute.
iii. The respondent is not liable to pay an award under section 10 of Reg. 664.
iv. As there are no overdue payments, no interest is payable.
v. The application is dismissed.
Released: November 20, 2024
__________________________
Robert Fleming
Adjudicator