Licence Appeal Tribunal File Number: 22-005808/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:
Nasir Khan
Applicant
and
Security National Insurance Company*
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Syed Raza, Counsel
For the Respondent:
Bhagwant Chohan, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Nasir Khan, the applicant, was involved in an automobile accident on February 19, 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 from the respondent, Security National Insurance Company the “respondent”) 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 limit and in the MIG? Note: The parties agree the MIG limits have not been exhausted.
ii. Is the applicant entitled to physiotherapy services proposed by Physiocare & Rehab Meadowvale Inc. as follows:
a) $698.25 in a treatment plan/OCF-18 (“plan”) dated May 27, 2021?
b) $2,663.50 in a plan dated July 7, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. He is not entitled to payment for the treatment plans in dispute, and interest does not apply.
4The application is dismissed.
ANALYSIS
The applicant is not removed from the MIG on the basis of a pre-existing condition
5I find that the applicant has not demonstrated that he has a pre-existing condition that would prevent maximal recovery under the 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 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.
7The applicant submits that he should be removed from the MIG based on his pre-existing back condition which prevents his recovery under the MIG limits.
8To this end, the applicant relies on his Disability Certificate (OCF-3) dated April 14, 2021 completed by Dr. Nadia Merchant, chiropractor, clinical notes and records of Dr. Saba Hussain, family physician, and various radiological examinations of his lumbar spine.
9In response, the respondent points to the OCF-3 and Insurer’s Examination (“IE”) reports dated August 4, 2021 by Dr. Nagib Yahmad, neurologist, and by Dr. Andrzej Gwardjan, physiatrist. The respondent submits that Dr. Merchant lists minor injuries in the OCF-3 which are treatable within the MIG limits. Dr. Yahmad indicates that the applicant reported no chronic back complaints before the accident. The applicant does admit to mild low back pain before the accident but that this pain did not interfere with any of his activities. Dr. Yahmad found no neurological impairments with no signs of radiculopathy. Dr. Gwardjan concluded that the applicant sustained uncomplicated soft tissue injuries as a result of the accident. Although, Dr. Gwardjan concedes that the applicant’s pre-existing low back pain was exacerbated, Dr. Gwardjan opined that this does not warrant treatment beyond the MIG limits.
10On review of the clinical notes and records of Dr. Hussain, in the two years before the accident, the applicant made no complaints of back pain, however, Dr. Hussain does note the applicant’s inactivity. In the OCF-3, Dr. Merchant indicates that although the applicant has a pre-existing condition of degenerative disc disease with bilateral foraminal stenosis and facet arthrosis of the lumbar spine, he can return to all his pre-accident activities.
11The applicant has produced limited medical documentation regarding his post accident complaints. The applicant provided his OHIP summary which indicates he was seen by a Dr. Shahana Sikander shortly after the accident at a walk-in clinic. However, the applicant has not provided the clinical notes and records of Dr. Sikander. In the two years after the accident, the applicant did not report any accident-related complaints to Dr. Hussain. On September 22, 2022, Dr. Hussain diagnosed lumbago associated with a sedentary lifestyle. Dr. Hussain advised the applicant to do self-directed stretching exercises. In February 2023, Dr. Hussain advised the applicant to be more active, with walking and stretching exercises.
12While the applicant points to his pre-existing degenerative disc disease with bilateral foraminal stenosis, he has not proven on a balance of probabilities that his pre-existing back condition would affect his recovery. While I accept that the applicant has radiological findings that would suggest a back condition, I find no compelling medical evidence by a health practitioner that this pre-existing condition would significantly delay his recovery from the accident. Although, Dr. Merchant refers to the applicant’s radiological findings, she does not indicate that the applicant’s recovery would require treatment outside the MIG limit as a result of these findings.
13For all these reasons, the applicant is not removed from the MIG as a result of his pre-existing back condition.
Are the treatment plans reasonable and necessary?
14Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required. While it is unclear if the MIG limits have been exhausted, for completion, the applicant failed to offer specific submissions to demonstrate how the two treatment plans in dispute are reasonable and necessary and it is not sufficient to rely solely on the OCF-18s themselves. In addition to the lack of specific submissions from the applicant, whose burden it is to prove their reasonableness and necessity, I follow Dr. Gwardjan’s s.44 opinion that the treatment plans are not reasonable and necessary or payable. As no benefits are overdue, it follows that no interest is payable under s.51.
The respondent’s denial of the disputed treatment plans were in compliance with s. 38(8) of the Schedule
15As an alternative argument, the applicant submits that the respondent did not deny the two OCF-18s dated May 27, 2021 and July 7, 2021 by Physiocare & Rehab Meadowvale for physiotherapy services in accordance with s. 38(8) of the Schedule. For the following reasons, I find that the respondent’s denials of the treatment plans in dispute complied with the requirements under s.38(8) of the Schedule, and therefore, the applicant is not entitled to the treatment plans on this basis.
16Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days after the day of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan, either in full or part, is not reasonable and necessary.
17If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
18The applicant argues that the respondent failed to provide specific reasons for its denial of the two treatment plans in dispute. The applicant provides the explanation of benefits letter dated August 10, 2021 from the respondent, which summarizes the medical opinions of Dr. Yahmad and Dr. Gwardjan. The letter states that the applicant’s injuries are minor, and any exacerbation of his pre-existing low back condition is treatable within the MIG. The respondent states the opinion of Dr. Gwardjan regarding the applicant’s accident-related injuries as, “…uncomplicated soft tissue injuries to the axial spine resulting in subsequent exacerbation of a pre-existing low back condition”, and “[s]oft tissue injuries sustained by the claimant meet the criteria of a minor injury according to the guideline.” The respondent further states the opinion of Dr. Yahmad in finding the applicant’s injuries fall within the MIG as, “[t]here is no specific neurological diagnosis that was detected from the strict physical neurological perspective and as a direct result of the index accident.”
19The respondent submits that its earlier denial letters dated June 7, 2021 and July 16, 2021 provided a reason for the denials of the disputed treatment plans in that the applicant’s injuries were minor. In addition, the respondent stated they have not received compelling medical evidence of a pre-existing condition which requires treatment beyond the MIG limits. The respondent further submits that in letter dated August 10, 2021, they provided the medical opinions of Dr. Yahmad and Dr. Gwardjan in support of its denial.
20In denial letters dated June 7, 2021 and July 16, 2021, the respondent has specifically requested further information about the applicant’s pre-existing condition or other condition that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the Minor Injury Guideline and specific reference to the applicant’s pre-existing condition in letters dated June 7, 2021 and July 16, 2021 were valid denials of the OCF-18’s dated May 27, 2021 and July 7, 2021. Therefore, the consequences in s.38(11) of the Schedule are not triggered and the applicant is not entitled to the disputed treatment plans on this basis.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant has not discharged his burden on removal from the MIG or the plans for physiotherapy services, there are no benefits owing and interest does not apply.
ORDER
22For the reasons set out above, I find that:
i. The applicant remains subject to the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest, and;
iv. The application is dismissed.
Released: September 4, 2024
Lisa Holland
Adjudicator