Licence Appeal Tribunal File Number: 22-008115/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:
Dexter Browne
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Raymond Selbie
APPEARANCES:
For the Applicant:
Marc Golding, Paralegal
For the Respondent:
Sarah Bedard, Counsel
HEARD: In Writing
OVERVIEW
1Dexter Browne, the applicant, was involved in an automobile accident on June 19, 2019, 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, Belair Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties attended a case conference on March 17, 2023, but were unable to resolve the issues in 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 that the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,366.57 for chiropractic treatment, proposed by Dr. Kevin Bar in a treatment plan OCF-1 (“plan”) submitted September 14, 2020, and denied November 18, 2020?
iii. Is the applicant entitled to $2,967.84 for psychological treatment, proposed by Dr. Valery Kleiman in a plan submitted June 8, 2020, and denied July 30, 2020?
iv. Is the applicant entitled to $2,520.01 for chiropractic treatment, proposed by Dr. Kevin Bar in a plan submitted October 6, 2021, and denied October 11, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant sustained predominantly minor injuries from the accident in accordance with the definition in the Schedule and that the MIG applies to him. As a result, and because the MIG limits have been exhausted, his claims for the disputed benefits and interest are dismissed.
ANALYSIS
The Minor Injury Guideline (MIG)
5The MIG establishes a framework available to injured persons who sustained a minor injury as result of an accident. A ‘minor injury’ is defined in s. 3(1) of the Schedule as ‘one or more of a strain, sprain, whiplash associated disorder, a contusion, abrasion, laceration subluxation, and includes any clinically associated sequelae to such injury’. The terms strain, sprain, subluxation, and whiplash associated disorders are as defined in the Schedule.
6S. 18 (1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate with compelling evidence that a pre-existing condition, documented by a medical practitioner, prevents maximum medical recovery of any accident-related minor injury under the MIG or if they can provide a psychological impairment or chronic pain that with a fundamental impairment. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests on the applicant on the balance of probabilities.
7The applicant does not claim that he suffered a pre-existing condition documented by a medical practitioner that prevents recovery of any accident-related minor injury under the MIG.
8The applicant submits that he has sustained an injury that results in chronic pain and psychological impairment that do not constitute ‘minor injury’ per s. 3(1) of the Schedule and therefore he should be removed from the MIG category.
9I have reviewed the cases refenced in the applicant’s submissions and the medicals and reports provided by the parties. The CNRs of the family doctor Dr.Ramesh Vasan Mistry do not refer to the motor vehicle accident and refers to anxiety caused by other issues rather than the accident. No recent updates have been provided from the family doctor since the initial CNRs ending September 9, 2019. The applicant further relies upon the OCF-1 dated September 13, 2019, and the OCF-3 conducted September 12, 2019, by Dr. Kevin Bar, Chiropractor, which refer to anxiety, stress depression and a substantial inability to perform normal activities. Two requests (October 21, 2021, and January 11, 2022) for updated records were made by the respondent pursuant to s. 33 of the Schedule and neither request was fulfilled. The applicant attended upon Mr. Valery Kleiman Psychologist on January 22, 2020, and February 5, 2020, culminating in a diagnosis of adjustment disorder with depressed mood, specific phobia relating to driving and passenger activity. The cases referenced by the applicant rest upon their facts which are at variance with the facts in this application.
10The respondent arranged for an insurer examination with Dr. David Schwartzbein, Psychologist, on February 25, 2020, relating to the applicant’s psychological condition. Dr. Schwartzbein found that the applicant denied being depressed and noted that the main cause of his frustration was the fact that he was no longer able to access a vehicle rather than any psychological suffering as the result of the accident. In the end, Dr. Schwartzbein determined that a psychological diagnosis did not apply to the applicant and thus he did not see any need for psychological treatment. Dr. Schwartzbein conducted his assessment without the advantage of the report from Mr. Valery Kleiman and once he reviewed same, he provided an addendum to his initial report and concluded that the applicant experienced distress related to his loss of independence as opposed to psychological problems cause by the accident.
11A further insurer examination was conducted by Dr. Ljaz Chaudhry sixteen months after the accident and Dr. Chaudhry confirmed that the applicant had lost only 6 days from his regular full-time employment and that his main concern was loss of independence due to his inability to own an automobile. Dr. Chaudhry concluded that the applicant suffered injuries that fall within the MIG.
12I find that on the evidence, the applicant has failed to establish fundamental psychological and/or chronic pain impairment; [s. 8.(1)] that reasonably and necessarily require treatment outside of the MIG.
The applicant is not entitled to any of the disputed treatment plans
13Having found that the applicant remains in the MIG and accepting the parties’ mutual submission that the MIG limits have been exhausted, it follows that I do not need to decide whether any of the disputed benefits are reasonable and necessary. The applicant is not entitled to any of the treatment plans in dispute.
Interest
14Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest does not apply as no benefits are overdue.
ORDER
15I find and order that:
i. The applicant’s’ injuries are predominantly minor as defined in s. 3 of the Schedule and therefore are subject to treatment within the $3,500.00 Minor Injury Guideline limit.
ii. The applicant is not entitled to any of the issues in dispute.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: August 8, 2024
Raymond Selbie
Adjudicator```