Licence Appeal Tribunal File Number: 22-005812/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:
Durganath Kharal
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Myra Moussa Mohamed, Paralegal
For the Respondent: Stephen Whibbs, Counsel
HEARD: By way of written submissions
OVERVIEW
1Durganath Kharal (“the Applicant”) was involved in an automobile accident on December 3, 2021, and sought benefits from Economical Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Respondent characterized the Applicant’s injuries as a predominantly minor injury and subjected him to the Minor Injury Guideline (“the MIG”), the $3,500.00 funding limit for minor injuries, and denied entitlement to a treatment and assessment plan. The Respondent also determined that the Applicant was not entitled to income replacement benefits (“IRBs”). The Applicant disagrees and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
- Are the Applicant injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline and the $3,500.00 funding limit for a minor injury?
- Is the Applicant entitled to an income replacement benefit in the amount of $34.56 per week for the period from December 11, 2021, to December 13, 2022?
- Is the Applicant entitled to a medical benefit in the amount of $3,449.00 for a physiotherapy treatment plan, recommended by Airport Rehabilitation, dated May 7, 2022?
- Is the Applicant entitled to interest on any overdue payments?
RESULT
4The Applicant sustained a minor injury as defined in section 3 of the Schedule. It follows that he is not entitled to the physiotherapy treatment plan in dispute because it proposes treatment that falls outside the MIG.
5The Applicant is entitled to IRBs for the period from February 16, 2022, to July 21, 2022, plus interest.
6No other benefits are payable.
BACKGROUND
7The Applicant was the driver of a vehicle which was struck by a left-turning vehicle at a suburban intersection. He was taken to the hospital with complaints of a sore right knee. He was examined and x-rayed at the hospital and diagnosed with a knee strain, prescribed medication, and discharged.
8The Applicant submits that he has developed post-traumatic stress disorder (“PTSD”) following the accident and should not be subject to the MIG as a result. He also claims that he is substantially unable to perform the essential tasks of his employment as a chef due to accident-related injuries.
9The Respondent contends that the Applicant has failed to demonstrate that his injuries fall outside the minor injury definition, nor that he is substantially unable to perform the essential tasks of his employment.
ANALYSIS
Minor Injury Guideline (“MIG”)
10The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
11The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. The Applicant submits that he sustained a psychological injury and non-minor physical injuries to his shoulder, and suffers from chronic pain disorder, as a result of the accident.
12For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.
No evidence of a psychological injury
13I find that the Applicant has not provided evidence that he sustained a psychological injury as a result of the accident, that warrants treatment outside of the MIG.
14The Applicant’s family physician’s clinical notes and records (“CNRs”) do not indicate a psychological injury as a result of the accident. The Applicant directs me to two instances in his family physicians’ CNRs that document the Applicant’s psychological injuries. An entry dated December 6, 2021, notes the Applicant’s complaints of poor sleep and driving-related stress, and a note on January 18, 2022, that states the Applicant complained of feeling uneasy while driving. These two entries fail to demonstrate that the Applicant sustained a psychological injury that warrants treatment outside of the MIG. A deeper look into these records shows that the Applicant’s family physician addressed the issues by providing counselling at the time of the visits and offering psychological intervention if the situation does not improve. The Applicant never followed-up for any psychological intervention and never made any complaints of a psychological nature thereafter.
15The Applicant was assessed by a psychologist, who determined that he does not meet the criteria for a psychological diagnosis. Dr. A. H. Rubenstein, psychologist, assessed the Applicant for an insurer’s examination (“IE”) and issued a report, dated July 12, 2022. Dr. Rubenstein’s conclusion is based on information obtained in a direct interview, objective psychological testing, and the documents available at the time. Notably, Dr. Rubenstein reports that the Applicant’s scores on psychometric testing had inconsistent findings which could indicate symptom magnification, that included gross elevations across all validity scales with salient over endorsement of symptoms where somatic, affective, and cognitive reporting is concerned. Upon review of the report, and in light of the Applicant’s other medical documents, I see no reason to doubt or discount Dr. Rubenstein’s opinion.
16It appears that the Applicant experienced some symptoms of PTSD following the accident however, the symptoms did not rise to the level to be considered anything more than clinically associated sequalae of his soft-tissue injuries. Such minor psychological symptoms are contemplated in the MIG, which provides funding for supplementary goods and services that facilitate a return to function. This includes interventions such as advice or education to deal with accident-related psycho-social issues.
No evidence demonstrating that the Applicant is impaired by chronic pain
17I find that the Applicant does not suffer from a chronic pain condition as a result of the subject accident.
18The Applicant suggests that he suffers from a chronic pain condition as a result of the accident and implies that he should not be subject to the MIG as a result. The Respondent submits that the Applicant presented no objective evidence of a functional impairment due to pain, and no evidence that he meets the criterial for a chronic pain condition, as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”)
19There is no evidence demonstrating that the Applicant is impaired by pain. CNRs from his family physician include virtually no complaints of ongoing neck pain and the records indicate that the Applicant’s right shoulder has almost full range of motion, indicating that he is not impaired by pain or that any impairment is minor. Dr. Y. Marchuk, physiatrist, assessed the Applicant for an IE and, in a report dated July 12, 2022, found only mildly reduced range of motion of the neck.
20The Applicant has not demonstrated that he meets the criteria for a chronic pain condition outlined by the AMA Guides. While not mentioned in the Schedule, the Tribunal has typically accepted the AMA Guides criteria for a chronic pain condition. It asks whether a person satisfies three of the following six criteria: use of prescription drugs beyond the recommended duration and/or abusing drugs or other substances; excessive dependence on healthcare providers and relatives; withdrawal from social milieu such as work or recreational activities; secondary physical deconditioning due to disuse; development of psycho-social sequalae; and a failure to restore pre-injury function after a period of disability.
21The Applicant provided no prescription summary or other evidence to demonstrate that he is dependent on medication or other substances. There is no evidence demonstrating excessive dependence on family members or healthcare providers, nor any evidence of secondary deconditioning due to disuse. He returned to his pre-accident functioning because he is independent with his activities of daily living and appears to have returned to his pre-accident work duties. He has not indicated any withdrawal of social milieu and there is nothing in his medical record that would suggest such a withdrawal. Lastly, as noted early, the Applicant made two complaints of psychological symptoms, but they are minor and undermined by inconsistent scoring on the validity measures imbedded in the psychological testing conducted.
22Accordingly, I find that the Applicant has not developed a chronic pain condition as a result of the accident.
A partial thickness tear of the shoulder is a minor injury
23I find that the Applicant’s shoulder injury is captured within the minor injury definition.
24In his submissions, the Applicant referred to a partial thickness tear in his right shoulder, suggesting that this is an injury that is not included in the MIG. There is no discrepancy within the Applicant’s medical records, which include imaging on his right shoulder, that the Applicant suffered from degenerative changes and a partial thickness tear in his right shoulder. However, a partial thickness tear is expressly included in the minor injury definition.
25Accordingly, I find that the Applicant’s injuries are rightfully characterized as a minor injury.
The Applicant is not entitled to the physiotherapy plan in dispute
26The plans in dispute proposed goods and services that fall outside the MIG. Having found that the Applicant is subject to the MIG, it follows that he is not entitled to the physiotherapy plan in dispute, nor interest related to it.
Income Replacement Benefits (“IRBs”)
27IRBs may be payable if the Applicant can demonstrate that he is substantially impaired from completing the essential tasks of his employment as a chef.
28The Applicant claims entitlement to IRBs at the rate of $34.56 per week, for the period from December 11, 2021, to December 13, 2022, both on a statutory basis and on grounds that it is reasonable and necessary as a result of the accident. On a statutory basis, he submits that the Respondent failed to fulfill its statutory obligations pursuant to section 37(2)(c) of the Schedule. He submits that the Respondent shall not discontinue paying IRBs until it delivers an insurer’s examination (“IE”) report and that, at the least, he is entitled to IRBs up until he receives the IE report.
29The Respondent contends that the Applicant does not meet the test for entitlement to IRBs. It further submits that it never contravened section 37 of the Schedule because that section deals with ongoing entitlement to IRBs, whereas the Applicant never received IRBs, which negates any consideration for ongoing IRBs.
30The Respondent submits that, in accordance with the IEs conducted, the Applicant does not suffer a substantial inability to complete the essential tasks of his pre-accident employment and that it never contravened section 37 of the Schedule because that section addresses ongoing entitlement to IRBs and this dispute involves initial entitlement to IRBs.
No entitlement prior to the submission of a disability certificate
31The Applicant is not entitled to IRBs prior to submission a disability certificate.
32Section 36(3) of the Schedule states that a person who fails to submit a completed disability certificate is not entitled to a specified benefit, such as IRBs, for any period before the completed disability certificate is submitted. In the Applicant’s case, he submitted a completed disability certificate on February 16, 2022. This is the starting point for the period of entitlement that I will consider for this hearing.
The Respondent failed to comply with section 36 of the Schedule
33I find that the issue is not that the Respondent failed to comply with section 37 of the Schedule. Rather, the Respondent failed to comply with section 36 of the Schedule when it responded to the Applicant’s application for IRBs and disability certificate.
34Section 37 of the Schedule addresses ongoing entitlement to IRBs. Whereas in this case the Applicant never received any IRBs. The applicable section of the Schedule is section 36. Section 36(4) provides that the Respondent, in response to an application for IRBs and a disability certificate, has three options: pay IRBs; give notice explaining the medical and all other reasons why it believes the Applicant does not qualify and whether an insurer’s examination is required; or send a request to the Applicant for more information pursuant to section 33 of the Schedule.
35The Respondent did none of the three options outlined in section 36(4). Instead, on March 1, 2022, it advised the Applicant that it requests an IE pursuant to section 44 of the Schedule. The March 1, 2022, letter never included a refusal to pay IRBs, nor any medical or other reasons to support a refusal.
36The appropriate remedy in this situation is to apply section 36(4) and find that the Applicant is entitled to IRBs for the period from the submission of the disability certificate until the Respondent gave a clear an unequivocal denial of benefits. In this case, the Respondent gave a clear and unequivocal denial of IRBs on July 21, 2022.
37Thus, I find that the Applicant is entitled to IRBs for the period from February 16, 2022, to July 21, 2022.
No evidence of a substantial inability to complete the tasks of a chef
38The Applicant has provided insufficient information to determine that he is substantially impaired from performing the essential tasks as a chef. The CNRs from the Applicant’s family physician include no recommendation that the Applicant refrain from work or any activities. The disability certificate completed by physiotherapist A. Bajwa, dated December 16, 2021, and submitted to the Respondent on February 16, 2022, supports a disability period of 9-12 weeks, which would span December 16, 2021 to March 10, 2022. I find the disability certificate to be unpersuasive in light of his family physician’s records, the reports of Dr. Marchuk and Dr. Rubenstein, and in the absence of the physiotherapist CNRs. I am unable to understand how the physiotherapist came to their conclusions without record of the assessment or investigation which led to the conclusion.
39The only mention of work, or work-related impairments, in the family physician’s CNRs is a November 2, 2022, note that discusses that the Applicant has less shoulder pain when he took two months off work but that his shoulder pain has flared up due to increased use once he restarted his job. I find that this entry suggests that the Applicant’s time off work was voluntary or, at the least, done without any medical basis. Accordingly, I cannot accept this as evidence that he is unable to complete his essential tasks of employment as a result of accident-related injuries in light of the other evidence before me. That other evidence consists of assessments with vocational and rehabilitation specialists, albeit predominantly in the form of IEs, who all concluded that the Applicant did not suffer a substantial inability to complete his essential tasks as a chef.
The Respondent is entitled to deductions for post-accident income received
40The Applicant’s tax records state that he earned an income in 2022 which would negate any IRB payments. The Applicant never provided a notice of assessment for his 2022 income and has not provided any information to clarify what the income is from. I can reasonably conclude that the income listed in the tax document is not from Employment Insurance or the Canadian Emergency Relief Benefit because the Applicant provided his files with Service Canada and those records confirm that no payments were made during 2022. The tax records state that he earned income from employment in 2022 that greatly exceeds the weekly $34.56 he claims entitlement to. The result is that, even if I were to conclude that the Applicant was disabled from completing his essential tasks of employment, the quantum to be $0 because of the deductions available to the Respondent.
41Considering that the Applicant holds the burden of demonstrating entitlement to IRBs, it follows that his failure to provide information to clarify, or possibly discount, his post-accident earnings is fatal to his claim as the Respondent is entitled to a deduction for any post-accident income earned by the Applicant.
Interest
42Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that the Applicant is entitled to IRBs for the period from February 16, 2022, to July 21, 2022, it follows that he is entitled to interest on these payments, pursuant to section 51 of the Schedule.
CONCLUSION AND ORDER
43The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit. He is not entitled to the treatment and assessment plan in dispute because it proposed goods and services that fall outside the MIG.
44The Applicant is entitled to IRBs for the period from February 16, 2022, to July 21, 2022, plus interest pursuant to section 51 of the Schedule.
45The Applicant is not entitled to any other benefits.
Released: December 3, 2024
__________________________
Brian Norris
Adjudicator