Licence Appeal Tribunal File Number: 22-006810/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:
Fabrice Ndam
Applicant
and
Sonnet Insurance Company*
Respondent
DECISION
ADJUDICATOR: Dagmara Szczudlo
APPEARANCES:
For the Applicant: Bianca Pirrotta-Iaccino, Paralegal
For the Respondent: Mirsa Duka, Counsel
HEARD: By way of written submissions
OVERVIEW
1Fabrice Ndam, the applicant, was involved in an automobile accident on January 5, 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, Sonnet 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:
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 (“MIG”) limit? Note: The respondent submitted that $2,787.24 of the approved treatment plans has been paid. The parties’ submissions did not include information whether the full MIG limit has been pre-approved.
ii. Is the applicant entitled to $2,829.37 for chiropractic services from Alma Rehab Inc. proposed by Andrew Ting Pung Weung, chiropractor, in a treatment plan (OCF-18) dated June 4, 2020?
iii. Is the applicant entitled to $2,496.85 for chiropractic services from Alma Rehab Inc. proposed by Roger Singh, chiropractor, in a treatment plan (OCF-18) dated September 29, 2020?
iv. Is the applicant entitled to $2,245.55 for chiropractic services from Alma Rehab Inc. proposed by Dr. Singh in a treatment plan (OCF-18) dated January 19, 2021?
v. Is the applicant entitled to $1,995.33 for a psychological assessment from Alma Rehab proposed by Marco Chiodo, psychologist, in a treatment plan (OCF-18) dated March 2, 2020?
vi. Is the applicant entitled to $2,200.00 for a chronic pain assessment at Ontario Independent Assessment Centres proposed by Dr. Wilderman in a treatment plan (OCF-18) dated February 10, 2021?
vii. 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. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
4The applicant is entitled to the amount which remains within the $3,500.00 MIG limit as of the date of this decision, if already incurred, as such benefits are deemed reasonable and necessary. The applicant is not entitled to the OCF-18s in dispute beyond the $3,500.00 MIG funding limit on treatment.
5The applicant is entitled to interest pursuant to s. 51 of the Schedule on the amount which remains within the $3,500.00 MIG limits as of the date of this decision.
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 MIG limit.
6The applicant has not demonstrated that he suffers from physical and/or psychological injuries that warrant his removal from the MIG for the following reasons.
7Section 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.”
8An 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.
9It 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
10I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.
11The applicant submits that he suffered from grade two whiplash associate disorder (WAD 2), headaches, sprain and strain of the cervical and lumbar spine, lower back pain, acute stress reaction and pain, dizziness, giddiness, malaise and fatigue, disorders of initiating and maintaining sleep (insomnias), nervousness, and sprain and strain of the shoulder joint, rotator cuff capsule, knees, and feet as a direct result of the accident. He also submits ongoing complains of neck and back pain which are supported by clinical notes and records from his family physicians. The injuries the applicant alleges, are all ones that are within the definition of "minor injuries" in the Schedule and do not support the applicant's removal from the MIG.
12The respondent submits that the applicant suffered soft tissue injuries as a result of the accident and relies on two s. 44 physiatry assessments completed by Dr. Yuri Marchuk, physical medicine and rehabilitation specialist, conducted on March 26, 2021, and March 25, 2023. Dr. Marchuk indicated that from a physical medicine perspective, the applicant sustained minor injuries as a direct result of the accident and diagnosed the following minor injuries:
- Whiplash Associated Disorder (WAD2);
- Cervicothoracic bilateral shoulder myofascial dysfunction; and
- Lumbar musculoligamentous myofascial dysfunction.
13Both the applicant’s and respondent’s submissions establish that the physical injuries sustained in the accident are defined as minor in the Schedule. There was no evidence put before me of an additional injury that is not included in the minor injury definition in s. 3(1).
14The applicant submits that he is entitled to the recommended physical treatment as care which relieves physical pain and therefore improves function, which is a legitimate medical and rehabilitative goal.
15With respect to the applicant’s position that they should be removed from the MIG on the basis of s. 18(2) of the Schedule, although the applicant reported neck and back pain complaints to his family physician post-accident, the applicant did not submit evidence of a pre-existing injury or condition and compelling medical evidence stating that this condition precludes recovery within the confines of the MIG.
16The applicant’s soft tissue injuries 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 of showing that he sustained injuries which are not minor in order to be removed from the MIG 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 his 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 he 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 his psychological injuries, mainly a provisional diagnosis of an adjustment disorder, which resulted from the subject accident permit treatment beyond the MIG and relies on an on an OCF-18 from Dr. Marco Chiodo, psychologist to support this diagnosis. On February 26, 2020, Mr. Ndam complained to Dr. Marco Chiodo of decreased concentration and energy, driving- and passenger-related anxiety, nightmares, flashbacks, disturbed sleep, anger, irritability, sadness, loss of interest, worrisome thoughts, and inability to relax in direct relation to the accident. The applicant expressed interest in receiving psychological therapy for his injuries and a treatment plan was submitted by Dr. Marco Chiodo for approval. Dr. Chiodo’s treatment plan was based on the applicant’s self reporting and is not supported by an accompanying s. 25 report.
21The respondent submits that the applicant did not sustain psychological impairments in the accident and relies on two s. 44 psychological assessments completed by Dr. Janet Clewes, psychologist, on March 25, 2021 and March 13, 2023. During the assessment, the applicant reported that he had never consulted with a mental health professional in his life and denied any accident-related psychological symptoms such as a depressed mood, being anxious, feeling traumatized, and being overly pain focused such that he was unable to concentrate on his day-to-day activities.
22Even though the Disability Certificate (OCF-3) signed on January 15, 2020 lists nervousness and acute stress reaction as injuries, it was submitted by chiropractor, Mandeep Braich, who is not qualified to diagnose psychological impairments.
23The respondent submits that the medical records of the applicant’s family doctor 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.
24The applicant’s evidence has not shown that he has a pre-existing psychological impairment. While it is likely that the applicant experienced post-accident psychological concerns as relayed to Mandeep Braich, chiropractor, and Dr. Marco Chiodo, psychologist, 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 his 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 OCF-3 and OCF-18 assessments with Mandeep Braich and Dr. Marco Chiodo.
25As a result, I conclude that there are no psychological impairments that would remove the applicant from the MIG.
26I 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 beyond the $3,500.00 MIG limit
27The case conference report and order does not include whether the MIG limits have been exhausted by the applicant. The respondent’s submission indicates that $2,787.24 of the approved treatment plans has been paid. The applicant’s submission does not include information regarding whether the full MIG limit has been approved by the respondent.
28Pursuant to s. 40(8) of the Schedule, as I have found that the applicant remains within the MIG, I am not required to determine whether the treatments set out in the OCF-18s are reasonable and necessary. The applicant is entitled to the amount which remains within the $3,500.00 MIG limit as of the date of this decision, if already incurred, as such benefits are deemed reasonable and necessary.
Is the applicant is entitled to interest?
29The applicant is entitled to interest pursuant to s. 51 of the Schedule on whatever amount remains within the $3,500.00 MIG limits as of the date of this decision.
ORDER
30The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
31The applicant is entitled to the amount which remains within the $3,500.00 MIG limit as of the date of this decision, if already incurred, as such benefits are deemed reasonable and necessary. The applicant is not entitled to the OCF-18s in dispute beyond the $3,500.00 MIG limit funding limit on treatment;
32The applicant is entitled to interest pursuant to s. 51 of the Schedule on the amount which remains within the $3,500.00 MIG limits as of the date of this decision.
Released: August 15, 2024
__________________________
Dagmara Szczudlo
Adjudicator