Judah Ben Solomon Autel v. Echelon Insurance Company, 2024 CanLII 4264

Citation: Autel v. Echelon Insurance Company, 2024 ONLAT 21-005997/AABS

Licence Appeal Tribunal File Number: 21-005997/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:

Judah Ben Solomon Autel

Applicant

and

Echelon Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Rupinder Tatla, Counsel

HEARD: By way of written submissions

OVERVIEW

1Judah Ben Solomon Autel, the applicant, was involved in an automobile accident on May 2, 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, Echelon Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

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 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $1,299.99 ($2,398.99 less $1,099.00 approved) for chiropractic services, proposed by Malton Spine & Chronic Pain Clinic (“MSCP)” in a treatment plan/OCF-18 (“plan”) submitted on August 05, 2020?

iii. Is the applicant entitled to $3,697.00 for chiropractic services, proposed by MSCP in a plan submitted on May 03, 2021?

iv. Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Golden Bars Medical Clinic in a plan submitted on October 2, 2020?

v. Is the applicant entitled to $3,532.15 for chiropractic services, proposed by MSCP in a plan submitted on December 12, 2020?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

4Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits set out in the disputed treatment plans, if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

The applicant has not established that he should be removed from the MIG

5I find the applicant has not met his onus to prove removal from the MIG is warranted.

6Section 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.”

7An insured person may be removed from the MIG if 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 condition may warrant removal from the MIG.

8The applicant submits that he suffers from a psychological impairment and chronic back pain as a result of the injuries sustained from the accident. The applicant also appears to allude that he suffers from a concussion. He relies on the hospital records, the Disability Certificate (“OCF-3”) dated May 4, 2020, clinical notes and records (“CNR”) from various physicians of Etobicoke Walk-In Clinic and diagnostic imaging results.

9The respondent disagrees and relies primarily on the insurer examination (“IE”) report and addendum of Dr. Sukhinder Bhangu, physiatrist, who found that the applicant sustained predominantly minor injuries as defined by the Schedule and that the applicant had reached maximum medical recovery from the injuries sustained from the accident which do not warrant removal from the MIG. It also relies on the applicant’s hospital records and CNRs from MSCP.

The applicant has not established physical impairments that warrant removal from the MIG

10I find the applicant has not established physical impairments that warrant removal from the MIG.

11Although the applicant alludes to suffering from a concussion as a result of the accident, this is not borne out by the medical evidence. In the family physician’s CNRs dated September 22, 2020, Dr. Nanua Pardip only speculates about a concussion, writing “? concussion.” In my view, this is not a formal diagnosis. Also, Dr. Pardip prescribed only Naproxen; did not provide a referral for any x-rays or diagnostic imaging to investigate any possible concussion; and did not refer the applicant to see any specialists. The applicant did not attend any subsequent follow-up appointments with Dr. Pardip. None of the applicant’s diagnostic imaging results, tendered in evidence, revealed any concussions, dislocations, or fractures. As such, I find that the applicant was never formally diagnosed with a concussion or sustained any non-minor injuries that required further medical attention that would warrant removal from the MIG.

12The applicant relies on an OCF-3 as evidence of his injuries sustained from the accident. I note that the OCF-3 was completed by Dr. Babaloui, chiropractor, who noted that one of the injuries sustained by the applicant was a “dislocation, sprain and strain of joint and ligaments of hip”. Based on the hospital records dated May 3, 2020, the applicant was diagnosed with soft tissue injury post-accident, and diagnostic imaging revealed no dislocation or fractures. I find the injuries listed in the OCF-3 are not supported by any compelling and contemporaneous medical evidence, therefore I have given limited weight on the OCF-3.

13I find the respondent’s IE and addendum reports dated May 5, 2021 and April 18, 2022, by Dr. Bhangu to be persuasive as they appear to be in line with the rest of the applicant’s evidence. Dr. Bhangu opined that the applicant suffers from “soft tissue injuries to the neck and back as well as right rotator cuff tendinopathy” and these impairments are predominantly minor injuries as defined by the Schedule. He opined that the applicant “would have reached maximum therapeutic benefit from facility-based therapies/associated goods as it relates to the subject accident.” Dr. Bhangu maintained his opinion in his addendum report, even after reviewing the applicant’s medical documents which included the x-ray dated April 27, 2021. I agree with the respondent that the applicant did not undergo an MRI, as alleged by the applicant, but underwent an x-ray on April 27, 2021. I find Dr. Bhangu’s assessment reports to be credible as he was assigned to assess the applicant under the MIG and for a treatment plan and conducted an in-person physical examination of the applicant and having reviewed the applicant’s medical documents, all of which appears to be consistent with the rest of the evidence.

14Given the above reasons, I find that the applicant failed to establish that he suffers from any physical impairments that warrant removal from the MIG.

The applicant has not established that he suffers from a psychological impairment that warrants removal from the MIG

15The applicant has not demonstrated that he suffers from a psychological impairment that would warrant removal from the MIG.

16The applicant relies solely on the OCF-3 dated May 4, 2020, as evidence of his psychological impairments. The psychological symptoms listed in the OCF-3 include “other headache syndromes, other anxiety disorders, nonorganic sleep disorders”. As mentioned above, the OCF-3 was completed by Dr. Babaloui, chiropractor, who is not a psychologist or psychiatrist and would not have the medical expertise to provide any psychological diagnoses. There is limited medical evidence submitted by the applicant and solely relying on the OCF-3 completed by Dr. Babaloui is not persuasive. As a result, I assign limited weight on the OCF-3.

17I have reviewed the CNRs from Etobicoke Walk-In Clinic and find limited evidence of any psychological complaints by the applicant. Hence, these CNRs do not assist the applicant.

18I give weight to the respondent’s IE psychological and addendum reports by Dr. James Murray, psychologist, given his expertise in providing psychological assessments and psychological treatment to patients suffering from physical and traumatic injuries. Also, Dr. Murray’s reports are the only psychological assessment reports tendered in evidence that formally assessed the applicant for any psychological impairments. He assessed the applicant in-person, reviewed the available medical documents, administered psychometric tests and opined that “[f]rom a psychological perspective based on the evaluation, there was no significant psychological impairment or DSM-5 diagnosis that would be clearly and directly attributable to the May 2, 2020 MVA….I am of the considered opinion that [the applicant] does not suffer from a psychological impairment or symptoms that would cross the threshold to warrant a DSM-5 diagnosis that would clearly be attributable to the [accident]…. [The applicant] does not have any limitations or restrictions from a psychological perspective". As the applicant has not present any evidence to rebut Dr. Murray’s findings, I find Dr. Murray’s reports to be persuasive and credible.

19I find that the applicant has failed to establish that he suffers from a psychological impairment and is therefore held within the MIG.

The applicant has not established that he suffers from chronic pain with a functional impairment that warrant removal from the MIG

20The applicant has not demonstrated that he suffers chronic pain with a functional impairment as a result of the accident-related injuries.

21The applicant submits that he has sustained “permanent physical, psychological and cognitive injuries” as a result of the accident and relies on the CNRs from Etobicoke Walk-In Clinic dated April 27, 2021, and May 2, 2021, where Dr. Bahman Torkian-Valashani, physician, diagnosed the applicant with chronic back pain. The respondent submits that the applicant’s evidence does not demonstrate that he meets the criteria for chronic pain.

22The applicant’s submissions on the issue of the MIG consisted of three paragraphs explaining that chronic pain was not a defined term in the MIG but is a ground for removal from the MIG. The applicant did not provide pinpoint reference to the evidence and explain how it supports his claim of chronic pain with a functional impairment.

23I am not convinced that the applicant suffers chronic pain with a functional impairment due to the lack of compelling and contemporaneous medical evidence of ongoing chronic pain resulting from the accident. While I acknowledge that the applicant attended the hospital the day after the accident, as mentioned above, the applicant did not seek further medical attention for his accident-related injuries until September 22, 2020 (i.e. over four months post-accident), where Dr. Pardip, physician, diagnosed the applicant with back pain and headaches. The next appointments were on April 27, 2021 (i.e. seven months later), and May 2, 2021 with Dr. Torkian-Valashani, physician. Based on these CNRs, it appears that the diagnosis of chronic back pain does not relate to the accident-related injuries, but relate to Dr. Torkian-Valashani’s subsequent diagnoses of osteoarthritis and mild scoliosis of the thoracic and lumbar spine.

24Further, there is limited evidence of any physical and functional limitations of the applicant. The applicant submits he is unable to participate in recreational, social and household activities, but did not to point to evidence in support his claim that he has chronic pain with functional impairment. The treating physicians at Etobicoke Walk-In Clinic made limited reports on the applicant’s physical functionality. Hence, I find that there is insufficient compelling and contemporaneous evidence of chronic pain with functional impairment.

25I give weight on the IE reports as they were the only documents which provided information regarding the applicant’s physical functionality. In the physiatry report dated May 20, 2021, Dr. Bhangu reported that the applicant remained independent in his self-care, personal hygiene and continues to drive. Further, Dr. Murray, in his IE psychological report, noted that “Mr. Autel stated that he drove [from his home] to attend this appointment in Oakville, Ontario” and “it was approximately a two-hour drive”. Although Dr. Bhangu reported that the applicant demonstrated some limitations in ranges of motion with reported pain to palpation, he maintained the applicant’s impairments are predominantly minor injuries and opined that the applicant “would benefit most from continuing to engage in his activities of daily living and self-directed exercise”. As I have not been pointed to any evidence that contradicts with the IE assessors’ reports, and given the reports, I find that the applicant has not demonstrated that he suffers from chronic pain with functional impairment.

26Given the above reasons, I find that the applicant has not demonstrated that he suffers from chronic pain with functional impairment. He is kept within the MIG.

The Treatment Plans

27The applicant submits that he is not aware how much the respondent has paid in medical and rehabilitation benefits to date and that the respondent did not exchange a copy of the Summary of Benefits statement despite requesting the same at the Case Conference.

28The respondent was silent on this issue and did not respond whether the MIG funding limit of $3,500.00 has been exhausted.

29Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

30Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ORDER

31The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

32Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits set out in the disputed treatment plans, if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

33The application is dismissed.