Licence Appeal Tribunal File Number: 22-002867/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:
Kristofer Del Rosario
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sofia Ahmad
APPEARANCES:
For the Applicant:
Ioulia Logoutova, Paralegal
For the Respondent:
Jack Burke-Gaffney, Counsel
HEARD:
By Way of Written Submission
OVERVIEW
1Kristopher Del Rosario, the applicant, was involved in an automobile accident on February 21, 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 the respondent, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent denied the benefits in dispute on the basis of its determination that his accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES
3The 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 limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $87.19 ($1,212.11 less $1,124.92 approved) for chiropractic services, proposed by 2430303 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated February 11, 2021?
iii. Is the applicant entitled to the assessments proposed by 2430307 Ontario Ltd., as follows:
a. $2,000.00 for a neurological assessment, in a plan dated August 25, 2020;
b. $2,000.00 for an orthopaedic assessment, in a plan dated August 25, 2020;
c. $1,293.80 for a functional abilities assessment, in a plan dated August 13, 2020;
d. $2,100.00 for a psychological assessment, in a plan dated August 4, 2020; and
iv. Is the applicant entitled to $3,068.80 for chiropractic and physical therapy services, proposed by 2430303 Ontario Ltd. in a plan denied on October 20, 2022?
v. Is the applicant entitled to $2,227.73 for physical therapy services proposed by 2430303 Ontario Ltd., in a plan denied on December 3, 2022?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of evidence before me, I find:
i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.
ii. The applicant is not entitled to $87.19 ($1,212.11 less $1,124.92 approved) for chiropractic services, proposed by 2430303 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated February 11, 2021 as they are not reasonable or necessary.
iii. The applicant is not entitled to the assessments proposed by 2430307 Ontario Ltd., as they are not reasonable or necessary.
iv. The applicant is not entitled to $3,068.80 for chiropractic and physical therapy services, proposed by 2430303 Ontario Ltd. in a plan denied on October 20, 2022.
v. The applicant is not entitled to $2,227.73 for physical therapy services proposed by 2430303 Ltd. in a plan denied on December 3, 2022.
vi. As there are no overdue payments found, no interest is payable under s. 51.
ANALYSIS
Applicability of 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 in accordance with the MIG. 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”. An insured may be removed from the MIG is they can establish that their accident-related injuries fall outside of the MIG 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 they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant.
6The applicant submits that the following factors remove him from the MIG:
i. his pre-existing condition
ii. his chronic pain; and
iii. his psychological impairments as a result of the accident.
7To this end, the applicant relies on an OCF-3, a Disability Certificate dated July 14, 2020 which states that the applicant has been employed with the Toronto Transit Commission at the time of the accident and that the applicant is “substantially unable to perform the essential tasks of his employment as a result of the accident but has returned to work”. It continues further, noting that the applicant is completely unable to carry on a normal life and suffers a substantial inability to carry out the housekeeping and home maintenance services which the applicant performed prior to the accident. The expected duration for the aforementioned is noted to be between 9 and 12 weeks.
8The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that he has a pre-existing condition, has developed chronic pain or that he has sustained an actual psychological impairment as a result of the accident.
Does the applicant suffer from a pre-existing condition?
9The applicant submits that his pre-existing leg pain was worsened as a result of the accident.
10The respondent submits that there is no indication of any pre-existing physical, musculoskeletal or psychological pre-existing condition.
11The IE assessors, Dr. Khaled and Dr. Ratti state that the applicant denied suffering from any relevant pre-existing conditions when this accident occurred.
12The applicant’s submissions do not mention why leg pain or any other impairments would warrant removal from the MIG nor does he provide medical evidence stating that they would prevent his maximal recovery under the MIG.
13There is no compelling medical evidence or medical opinion that his leg pain or this pre-existing injury would prevent the applicant from reaching maximum medical recovery if he is kept within the MIG, which is required under s. 18(2).
14The MIG is clear that it is insufficient to have a documented condition or injury during the pre-accident time frame, but there must be compelling medical evidence of a pre-existing condition that would prevent the applicant from achieving maximal recovery if he was kept within the MIG.
15I agree with the respondent and find that the applicant does not have a pre-existing condition.
Does the applicant have chronic pain as a result of the accident?
16The applicant submits in February of 2021 the applicant was complaining of leg pain.
17The applicant, with a new family physician in May of 2022, is reporting tenderness in the lumbar spine and reduced range of motion.
18The applicant’s chiropractor, Dr. Bruni, makes the suggestion of chronic pain.
19The IE, Dr. Khaled in a report from May of 2021, noted the applicant’s report of leg pain, its symptoms, and treatments the applicant applied to deal with the pain. Dr. Khaled concluded that the applicant had developed mechanical low back pains, but he found these to be “uncomplicated soft tissue injuries only without evidence of significant orthopedic or neurological sequela.”
20In a follow-up assessment of the applicant by the IE, Dr. Khaled, conducted in September of 2022, with regards to the leg pain, it was apparent that the applicant was experiencing some residual pain resulting from the accident.
21The respondent submits that when examined by the IE, Dr. Khaled, the applicant self-reported a high degree of function and there has been no diagnosis of chronic pain by either the applicant’s general practitioner or the IE, Dr. Khaled.
22Applying the American Medical Association (AMA) guide with respect to chronic pain, I find:
i. That there is no evidence of any prescribed or use of prescription drugs;
ii. There is no evidence of excessive dependence on others;
iii. There is no evidence of physical de-conditioning. The applicant reported to both IE’s. Dr. Khaled and Dr. Ratti, that he was independent in self care, and housekeeping, and separately to one of the two he was driving normally and had a normal social life. Dr. Ratti was of the opinion that the applicant’s scores for participation in overall activities were significantly higher than is typically reported for persons suffering from chronic pain;
iv. With regards to withdrawal from social milieu, including work, the applicant returned to work two weeks after the accident and later reported to his General Practitioner that he “was doing good”;
v. With regards to failing to re-store pre-injury function, being insufficient to pursue work, amongst other activities, the applicant returned to work two weeks after the accident; and
vi. There is insufficient evidence of psychological injury. The IE psychologist who examined the applicant made observations that on the self reporting scale the applicant was high-mild/low-moderate in terms of the applicant’s anxiety symptoms but concluded the applicant did not meet the DSM-5 criteria for any psychological diagnosis.
23The presence of ongoing pain is insufficient in isolation to justify removal from the MIG. A related functional impairment must also be described, which the applicant has not done.
24I find that the applicant does not have chronic pain or chronic pain syndrome.
Does the applicant suffer a psychological impairment as a result of the accident?
25The applicant submits that his psychological impairments justify removal from the MIG. He relies on the clinical notes and records of IE, Dr. Mohamed Khaled and IE, Dr. Rakesh Ratti, a psychologist.
26The applicant was referred for a psychological assessment by the IE Dr. Khaled. The applicant reported to Dr. Khaled that he was experiencing sleeping issues, accident related nightmares, fatigue, and depressed mood,
27The applicant submits that the on IE, Dr. Ratti, a psychologist found on a self reporting measure that the applicant was high-mild/low-moderate range in terms of their anxiety related symptoms.
28The respondent submits that the applicant did not sustain a psychological injury. A psychological assessment was completed by an IE, Dr. Ratti, a psychologist. Based on the testing, review, and assessment he opined that the applicant “does not present with diagnosable distress as per the DSM-V”. He further states that the applicant’s “prognosis is good”.
29The clinical notes and records of the applicant’s general practitioner support the claim that the applicant did not sustain a psychological injury in this MVA. The applicant had not been referred to any specialist physicians for psychological therapy and had not taken any prescription medication.
30The respondent submits that more compelling evidence of a psychological impairment is required for removal from the MIG.
31I am not persuaded by the applicant’s assertion that his psychological impairments justify removal from the MIG. I find that the applicant has not met his onus to demonstrate that he sustained a psychological impairment as a result of the accident. I base this belief on the IE’s lack of a diagnosis and belief that the prognosis or outlook for the applicant was good, the applicant’s medical records post accident do not support it, nor has there been any psychological therapy or prescribing of medications.
Are the treatment plans reasonable and necessary?
32I have determined that the applicant has not demonstrated the removal from the MIG is warranted. As such, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The MIG limits have been exhausted and, a not benefits are payable, no interest is payable under s. 51.
Award
34The 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.
35I find an award is not payable. As no benefits are overdue and the applicant has not demonstrated that his impairments warrant treatment beyond the MIG. In any event, I find no indication that the respondent unreasonably withheld or delayed the payment of benefits.
ORDER
36The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits has been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.
37The application is dismissed.
Released: April 10, 2024
__________________________
Sofia Ahmad
Adjudicator