Licence Appeal Tribunal File Number: 21-014171/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:
Anhar Chakera
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmara Szczudlo
APPEARANCES:
For the Applicant:
Elvis Viskovic, Paralegal
For the Respondent:
Mirsa Duka, Counsel
HEARD: By way of written submissions
OVERVIEW
1Anhar Chakera, the applicant, was involved in an automobile accident on June 17, 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, Economical Mutual 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:
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 agree the MIG limits have been exhausted.
Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Advanced Healthcare Management in a treatment plan/OCF-18 (“plan”) dated September 28, 2021, and denied November 9, 2021?
Is the applicant entitled to $199.50 ($998.00 less $798.50 approved) for a physical therapy assessment, proposed by Care Plus Physiotherapy in a treatment plan/OCF-18 (“plan”) dated November 30, 2021, and denied December 8, 2021?
Is the applicant entitled to $4,140.28 for psychological treatment, proposed by Advanced Healthcare Management in a treatment plan/OCF-18 (“plan”) dated December 13, 2021, and denied February 10, 2022?
Is the applicant entitled to $1,397.00 for physical therapy, proposed by Care Plus Physiotherapy in a treatment plan/OCF-18 (“plan”) dated December 22, 2021, and denied December 30, 2021? Note: withdrawn by the applicant in written submissions.
Is the applicant entitled to $1,197.50 for physical therapy, proposed by Care Plus Physiotherapy in a treatment plan/OCF-18 (“plan”) dated January 8, 2022, and denied January 21, 2022? Note: withdrawn by the applicant in written submissions.
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained minor injuries as defined under the Schedule in the accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
4The applicant is not entitled to the disputed OCF-18s, as they propose goods and services that fall beyond the MIG and the $3,500.00 funding limit on treatment.
5The applicant is not entitled to an award under Regulation 664.
6Since there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)
The applicant’s injuries are 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.
7The applicant has not demonstrated that she suffers from physical and/or psychological injuries that warrant her removal from the MIG for the following reasons.
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.”
9An insured 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, or, if they provide evidence of an injury that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.
The applicant did not suffer physical injuries that warrant removal from the MIG
11I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.
12The applicant submits that she had pre-existing tri-compartmental osteoarthritis in her left knee, which is confirmed in an X-ray dated June 18, 2021, and which she says precludes recovery if she is limited to the benefits available in the MIG.
13The applicant also submits that the respondent chose to forego its right to an insurer examination to comment on the MIG and the physical injuries that the applicant suffered. The respondent disputes this claim and submits that an insurer’s examination was conducted by Dr. James Kenneth Stewart on April 22, 2022. The respondent submits that this s. 44 assessment confirmed the applicant’s MIG status and that she achieved full functional recovery.
14The respondent submits that the applicant suffered soft tissue injuries as a result of the accident and relies on CNRs from the ER doctor at Brampton Civic Hospital and her family doctor who diagnosed her with right shin contusion/right leg hematoma as a result of the accident.
15The tri-compartmental osteoarthritis in the applicant’s left knee was diagnosed immediately after the subject motor vehicle accident so I do not find that this diagnosis is compelling evidence of a pre-existing medical condition documented before the accident that will prevent a full recovery from an accident-related soft tissue injury. Furthermore, there was no medical opinion provided that suggests that this condition may preclude recovery if the applicant remains in the MIG, which is required for removal under s. 18(2).
16The applicant’s right shin contusion/hematoma were caused by the accident and are included in the definition of minor injury in s. 3 of the Schedule. The applicant has not met the evidentiary burden to be removed from the MIG due to physical injuries or a pre-existing physical condition that would preclude recovery if subject to the MIG limit.
The applicant did not suffer psychological injuries that warrant removal from the MIG
17I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.
18An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
19In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
20The applicant submits that her psychological injuries which resulted from the subject accident permit treatment beyond the MIG and relies on a s. 25 assessment supervised by Dr. Langis, psychologist, dated December 13, 2021. Dr. Langis diagnosed her with a DSM-5 and ICD-10 F43.22 adjustment disorder, with anxiety and an AMA Class 3 – Moderate Impairment (impairment levels are compatible with some, but not all, useful functioning).
21The applicant submits that the respondent chose to forego its right to an insurer examination to comment on the MIG and the psychological injuries that the applicant has suffered. She asserts that to date, no insurer examination has been requested to comment on her physical or psychological injuries, or to counter the findings made by Dr. Langis in the December 13, 2021 report.
22The respondent submits that the medical records of the applicant’s family doctor and Brampton Civic Hospital do not include complaints, concerns, or diagnoses of psychological injuries arising from the subject accident. Moreover, the applicant was not prescribed any medication for psychological issues related to the accident, and there is no evidence to support that the applicant attended any psychological treatment pre- or post-accident.
23The respondent also submits the following concerns related to the s. 25 assessment relied upon by the applicant. Namely, that the assessor, Mr. Staroversky (registered psychotherapist, supervised by Dr. Langis), does not address the absence of any pre- or post-accident psychological concerns in the medical records nor mention what documents he reviewed in preparation for the assessment.
24The respondent submits that little weight should be assigned to the applicant’s s. 25 assessment since the diagnosis is based wholly on the applicant’s self-reporting and there is no reference to the medical records reviewed in the applicant’s psychological assessment, or to any psychometric testing undertaken in making this psychological diagnosis.
25I find the clinical notes and records from Dr. Javad and the insurer’s examination report from Dr. Stewart to be more persuasive than the s. 25 assessment by Mr. Staroversky. The applicant attended multiple follow-up visits with her family doctor, Dr. Javad, in the months after the subject accident to follow up on the right shin contusion/hematoma and she did not mention a single psychological concern despite frequent follow-ups. The family doctor’s records are silent to such concerns, and I find it reasonable to expect that if the applicant was experiencing psychological concerns, she would have spoken to her family physician to seek treatment and/or referrals. The applicant also denied any prior psychological conditions during a s. 44 assessment with Dr. Stewart on April 22, 2022.
26I find that the report of Mr. Staroversky is not persuasive given that he failed to consider contemporaneous medical records, failed to conduct objective testing, and relied entirely on the applicant's self-reported symptoms which themselves are inconsistent with the medical records.
27The applicant’s evidence has not shown that she has a pre-existing psychological impairment. While it is possible that the applicant experienced post-accident psychological concerns as relayed to Mr. Staroversky, I find that these concerns are post-accident sequelae and do not warrant removal from the MIG based on the evidence before the Tribunal. Clinical notes and records from her family physician or another doctor in an on-going treating relationship with the applicant have not shown complaints, concerns, or diagnoses of psychological injuries arising from the subject accident beyond what was shared during the s. 25 assessment with Mr. Staroversky.
28I find that the applicant is subject to the MIG and its $3,500.00 treatment limit.
The applicant is not entitled to the OCF-18s in dispute
29Having found that the applicant sustained a minor injury as a result of the accident, and since the MIG limits have been exhausted, it follows that she is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.
The applicant is not entitled to interest
30Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
The applicant is not entitled to an award
31Since none of the benefits in dispute are payable, the applicant is not entitled to an award.
ORDER
32The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
33The applicant is not entitled to the disputed OCF-18s;
34The applicant is not entitled to an award under Regulation 664;
35The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Released: January 25, 2024
Dagmara Szczudlo
Adjudicator