Licence Appeal Tribunal File Number: 22-011475/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:
Shaheen Iqbal
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Marc Golding, Paralegal
For the Respondent:
Cindy Leung, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shaheen Iqbal, the applicant, was involved in an automobile accident on April 10, 2021, 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, Intact 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 the Schedule and therefore subject to treatment within the $3,500 MIG limit? The respondent submits that the MIG limits have been exhausted and no amounts are remaining.
ii. Is the applicant entitled to $1,015.32 for chiropractic services, proposed by Chinguacosy Physiotherapy and Foot Clinic in a treatment plan dated December 3, 2021?
iii. Is the applicant entitled to $1,995.56 for physiotherapy services, proposed by Chinguacosy Physiotherapy and Foot Clinic in a treatment plan dated October 6, 2021?
iv. Is the applicant entitled to $2,503.22 for chiropractic services, proposed by Chinguacosy Physiotherapy and Foot Clinic in a treatment plan dated July 27, 2021?
v. Is the applicant entitled to $2,144.93 for psychological services, proposed by Chinguacosy Physiotherapy and Foot Clinic in a treatment plan dated August 23, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant’s injuries are predominantly minor injuries that can be treated within the limits of the MIG. As a result, I find that no interest for overdue benefits is payable.
ANALYSIS
Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?
4The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule 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 terms “strain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
5In the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635, the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
6The applicant submits that the injuries sustained in the accident are not minor injuries. The applicant submits that he suffered psychological impairments and chronic pain which interferes with their inability to resume activities of daily living. He contends that without further treatment, he is unlikely to achieve maximal recovery.
7The respondent submits that the applicant’s injuries fall within the MIG on the basis that the injuries from the accident are minor. The applicant exhibits no accident-related psychological impairment to remove him from the MIG.
Does the applicant have chronic pain that would remove him from the MIG?
8The applicant relies on clinical notes and records (“CNRs”) from Cornerstone Walk-in Medical Clinic and medical notes from Chinguacousy Physio and Foot Clinic in support of his argument. Respectfully, I am not persuaded that the applicant has demonstrated he suffers from a chronic impairment which amounts to a functional limitation or that cannot be treated within the MIG to achieve maximal recovery.
9The applicant relies on several OCFs prepared by Grace Macwan, registered physiotherapist with Chinguacousy Physio and Foot Clinic. On review of the OCF-3, OCF-18’s and CNRs the diagnosis of the applicant’s injuries from the accident fall squarely within the definition of minor injuries. The injuries are identified as sprain and strain of cervical and lumbar spine, sacroiliac joint, shoulder joint, and soft tissue disorder. The OCF-3 also discusses nervousness, headache and sleep disorder which is discussed below.
10The applicant also relies on CNRs from Cornerstone Walk-in Medical Clinic. The applicant attended the Clinic on June 29, 2021 (by phone) for foot pain, September 27, 2021 for mild tenderness in the chest and insomnia, and December 27, 2021 for an allergic reaction. The applicant’s submissions make no reference to chronic pain which causes functional limitation. Based on this review, the applicant has not met the onus as there is no reference to chronic pain or limitation to functional and/or daily abilities.
11In response, the respondent maintains that the applicant’s injuries fall within the Schedule’s definition of minor injury. The respondent relies on several section 44 Insurer’s Examinations in support of its argument.
12Dr. James Kenneth Stewart, M.D. is a family physician trained in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. and qualified as a Low Back Expert Examiner. In his section 44 report dated November 26, 2021, Dr. Stewart confirmed the minor nature of the applicant’s injuries based on the results of the physical examination which included a cervical spine exam, upper limb exam, thoracic/lumbar exam, lower extremity exam, neurological and systems exam.
13In his first assessment, dated November 26, 2021 Dr. Stewart stated the applicant “continues to experience minimal limitations to ranges of motion of the cervical spine, left shoulder and lumbar spine, as a result of myofascial discomfort, which should continue to fully resolve.” He also stated there are “no functional impairments”. Dr. Stewart noted that the applicant’s “soft tissue injuries met the SABS definition of a Minor Injury”.
14Dr. Stewart’s additional examination dated August 29, 2023, indicated that the applicant “has not seen his doctor about the accident in a long time. [The applicant] has not had physiotherapy in a long time. He currently has no pain or physical complaints. He feels 100% recovered.”
15I find Dr. Stewart’s background as a qualified Low Back Expert Examiner is relevant as the applicant’s injuries are also in the same area. Dr. Stewart completed two separate reports 21 months apart. In each report there is no finding that the applicant suffered ongoing or chronic pain.
16After reviewing the reports, I find the applicant’s injuries are predominantly minor injuries. The applicant has not met the onus of establishing his entitlement to coverage beyond the MIG.
Does the applicant have psychological injuries that would remove him from the MIG?
17Psychological impairments, if established fall outside the MIG, because the MIG only covers “minor injuries”, the definition of which does not include psychological impairments. I note the applicant did not attend or submit an OCF-3 for a psychological assessment. I find the applicant did not meet the onus of establishing psychological impairments that require treatment outside of the MIG.
18The applicant submits, supported by the OCF-18 prepared by Grace Macwan, registered physiotherapist with Chinguacousy Physio and Foot Clinic, that he suffered from nervousness and a sleep disorder due to the accident. The OCF-1, dated April 15, 2021, states the applicant’s accident-related injuries include anxiety, depression, and insomnia. The CNRs of September 27, 2021 from Cornerstone Walk-in Medical Clinic note that the applicant was prescribed a sleep aid for insomnia.
19Dr. Fabio Salerno is a psychologist and his area of expertise include the assessment and treatment of mood, anxiety, trauma, and chronic pain conditions. He is certified by the Canadian Society of Medical Legal Evaluators (“CSME”) in conducting psychological disability evaluations. Dr. Salerno’s section 44 examination dated January 5, 2022 relied on psychometric testing including Depression Anxiety Stress Scale, Pain Catastrophizing Scale, Pain Patient Profile. In his report he noted the applicant “does not exhibit an accident-related psychological impairment”. Dr. Salerno stated the applicant presented with “no anxiety or depressed mood”.
20Dr. Salerno stated that “[the applicant] explained that he does not require psychological treatment for the subject accident.” The applicant stated he had no psychological treatment needs and no anxiety was reported. Dr. Salerno submitted that the applicant “meets the criteria for a Minor Injury from a psychological perspective.”
21Dr. Salerno’s examination was completed within 4 months of the applicant’s complaints noted in Cornerstone Walk-in Medical Clinic’s report as “interrupted sleep”. I find his training by the CSME and his use of psychometric testing are persuasive and his report was comprehensive in the finding of the applicant’s psychological condition. Therefore, I prefer the respondent’s evidence and find the applicant has not provided evidence of a psychological impairment and not met the onus of establishing entitlement to coverage beyond the MIG.
Are the treatment plans in dispute reasonable and necessary?
22According to Scarlett, the onus is on the applicant to prove entitlement. I find that the applicant has not met the onus to show that his injuries are outside of the MIG, therefore there is no need to conduct an analysis on whether the treatment plans in dispute are reasonable and necessary.
Interest
23Having determined that no benefits are overdue, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
24For the reasons outlined above, I find that:
i. The applicant’s injuries are predominantly minor injuries as defined by the Schedule and fall within the MIG. He is therefore entitled to the $3,500.00 MIG limit for medical benefits; and
ii. The applicant has not established compelling evidence that prevents maximal recovery under the MIG therefore, he is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest.
Released: November 22, 2024
Aric Bhargava
Adjudicator```