Licence Appeal Tribunal File Number: 22-002897/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:
Qing Tian
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Dharshika Pathmanathan, Counsel
For the Respondent:
Carol Rambally, Counsel
HEARD:
In Writing
OVERVIEW
1Qing Tian, the applicant, was involved in an automobile accident on July 5, 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, Insurer, 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?
ii. Is the applicant entitled to $2,301.37 for a psychological assessment, proposed by True Life Rehab Center Inc. in a treatment plan dated August 11, 2021?
iii. Is the applicant entitled to $1,289.31 for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated October 25, 2021?
iv. Is the applicant entitled to $1,096.62 for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated December 15, 2021?
v. Is the applicant entitled to $1,382.24 for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated November 20, 2021?
vi. Is the applicant entitled to $225.62 ($1,300 less 1,074.38 approved) for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated September 22, 2021?
vii. Is the applicant entitled to $1,089.55 for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated January 12, 2022?
viii. Is the applicant entitled to $1,096.62 for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated February 25, 2022?
ix. Is the applicant entitled to $983.81 for chiropractic, physiotherapy and massage therapy services, proposed by North Toronto Rehabilitation & Physiotherapy in a treatment plan dated March 21, 2022?
x. Is the applicant entitled to $2,301.37 for an attendant care Assessment, proposed by True Life Rehab Center Inc. in a treatment plan dated July 21, 2021?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that 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.
4As the applicant remains in the MIG and the MIG limits are exhausted, the applicant is not entitled to the disputed treatment plans.
5The applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline (MIG)
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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
7A person may also be removed from the MIG under s. 18(2), if 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 burden of proof lies with the applicant.
Do the applicant’s injuries fall within the Minor Injury Guideline?
8The applicant’s injuries do fall within the MIG as defined by the Schedule.
9The applicant relies on the clinical notes and records from the applicant’s physician Dr. Pun. The applicant underwent diagnostic imaging in 2022 and the results do not show any ailments that would remove the applicant from the MIG. Furthermore, Dr. Pun did not refer the applicant to any specialists to deal with any issues related to the injuries sustained in the motor vehicle accident. While Dr. Pun diagnosed the applicant with chronic pain syndrome in April 2023, there are no additional clinical notes and records or corroborating evidence that this diagnosis is as a result of the motor vehicle accident. The applicant has not proven that the pain is recurring, severe and as a result of the accident.
10The applicant suggests that their psychological issues should warrant removal from the MIG. The clinical notes and records from Dr. Pun do not indicate psychological issues related to the accident that would justify removal from the MIG. I find that Dr. Pun did not refer the applicant to a psychiatrist or psychologist. This indicates that the psychological issues that the applicant suffered from were not significant enough to necessitate psychological treatment.
11The respondent relies on the physiatry assessment of Dr. Rabinovitch. Dr. Rabinovitch found that while the applicant’s injuries were a result of the motor vehicle accident, the injuries sustained meet the definition of a minor injury. Dr. Rabinovitch identified no musculoskeletal impairments.
12Prior to the accident, the applicant had a slip and fall where he injured his right elbow. While it is possible that the accident exacerbated the injury, the evidence shows that the applicant’s elbow had recovered significantly after post-accident therapy. The respondent argues that the applicant’s elbow has recovered beyond the pre-accident status and therefore this injury would not warrant removal from the MIG.
13On the balance of probabilities, I find that the applicant has not met the test for removal from the MIG. The applicant has not proven that the accident was the sole cause of the applicant’s need for therapy. Furthermore, the applicant has not proven that the accident alone was the cause of the following: “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.” Furthermore, the applicant has not provided “compelling evidence” from a health practitioner that they had a pre- existing medical condition that was documented by a health practitioner prior to the accident that remaining in the MIG will prevent “maximal recovery” from the minor injury.
14As the applicant remains in the MIG and the MIG limits are exhausted, the applicant is not entitled to the treatment plans in dispute.
Interest
15Since no benefits are payable, the applicant is not entitled to any interest.
ORDER
16I find that:
i. The applicant shall remain in the Minor Injury Guideline.
ii. The treatment plans listed in the issues in dispute are denied as the applicant remains in the MIG and the limits have been exhausted.
iii. The applicant is not entitled to any interest.
Released: August 23, 2024
Gareth Neilson
Adjudicator