Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-009469/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:
Taj Antonio Moulton
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Dayana Soto Santana, Paralegal
For the Respondent: Lauren Chen, Counsel
HEARD: In Writing
OVERVIEW
1Taj Antonio Moulton, the applicant, was involved in an automobile accident on December 7, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").
2The applicant was denied benefits by the respondent, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
3The respondent has denied the applicant's claims because it took the position that his injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline ("the MIG"). The applicant disagrees.
ISSUES
4The issues in dispute were identified and agreed to as follows:
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?
ii. Is the applicant entitled to the amount of $2,300.00 for psychotherapy care, proposed by 101 Assessments in a treatment plan submitted on July 25, 2022 and denied on July 29, 2022?
iii. Is the applicant entitled to the amount of $2,460.00 for a mental health and addiction assessment, proposed by 101 Assessments in a treatment plan submitted on June 21, 2022 and denied on July 1, 2022?
iv. Is the applicant entitled to the amount of $3,390.38 for chiropractic services, proposed by 101 Physio in a treatment plan submitted on June 6, 2022 and denied on June 9, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant's injuries meet the definition of "minor injury" under the Schedule. He is therefore subject to treatment within the MIG limits. It is therefore unnecessary for me to consider whether the treatment plans in dispute are reasonable and necessary or determine whether interest is payable.
ANALYSIS
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
a) The Minor Injury Guideline ("MIG")
6The MIG establishes a framework available to injured persons who sustain a minor injury as a 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, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. The terms, "strain," "sprain," "subluxation," and "whiplash associated disorder" are defined in the Schedule.
7The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG: Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. CT.). The applicant argues that he should be removed from the MIG because he sustained chronic pain and/or a psychological impairment as a result of the accident.
8Based on all of the evidence before me, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain or from a psychological impairment arising from the accident and, as a result, his injuries do not fall outside of the MIG.
b) Does the applicant suffer from chronic pain that would remove him from the MIG?
9I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain that would remove him from the MIG for the following reasons.
10The applicant submits that he should be removed from the MIG because he suffers from chronic pain. He further submits that his injuries have become chronic as they have been ongoing for more than a 3-month period. He states that he has documented evidence of headaches exacerbated by the subject accident which have become chronic, as well as chronic back pain which has been ongoing for years.
11The applicant relies on the records from his family doctor, Dr. David Barnett, as well as the clinical notes and records from Physical Therapy One to support his position. He submits that he visited his family doctor, Dr. Barrett, on December 11, 2017 following the accident. He complained of low back pain in the lower right side, headaches radiating to his eyes and the back of his neck with photophobia. He did not see Dr. Barrett again until April 16, 2019, more than one-year post-accident. He was diagnosed with muscle strain and migraines. There has been no evidence provided that the applicant saw Dr. Barrett on any other occasions post-accident.
12The applicant attended physiotherapy services following the accident at Physical Therapy One. He attended for six physiotherapy sessions. The CNRs provided are for the period February 13, 2018 to March 1, 2018. There have been no updated or ongoing records provided.
13The applicant relies on the reconsideration decision of T.S. v. Aviva General Insurance Canada, 17-000835 2018 CanLII 83520 (ON LAT), where the Tribunal held that: "Chronic pain can be described as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being. A simpler definition of chronic or persistent pain is "pain that continues when it should not." The applicant submits that he has chronic pain because his symptoms have persisted well beyond the 3-to-6-month mark.
14The respondent submits that the applicant is relying on outdated clinical notes and records that do not provide much in the way of corroboration for injury. He has not provided full hospital records, and only limited family doctor records and OHIP records. The applicant has not provided any records for Dr. Barrett beyond November, 2019 nor any records from his treating physiotherapy clinic, Physical Therapy One, beyond April, 2018. The respondent further submits that there is insufficient objective evidence to substantiate the applicant's position.
15I find that the medical evidence submitted by the applicant confirms that he does not suffer from chronic pain and that his physical injuries are predominantly minor. He saw his family doctor twice since the motor vehicle accident and made minor injury complaints. There is no actual diagnosis of chronic pain made by the family doctor. He also attended for a limited number of physiotherapy sessions following the motor vehicle accident. The applicant has not provided any updated clinical records since November, 2019 to document any ongoing complaints since the motor vehicle accident.
16While I accept the definition of "chronic pain" set out in T.S. v. Aviva General Insurance Company, it is still incumbent on the applicant to provide evidence of the "ongoing or recurrent pain" that they experience as a result of the accident. The applicant has not provided any evidence that he has ongoing pain or that he has a corresponding functional impairment as a result of the accident. Therefore, I do not find that the applicant suffers from chronic pain.
17For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain and therefore his physical injuries are not outside of the MIG.
c) Does the applicant suffer from psychological injuries that would remove him from the MIG?
18I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment that would remove him from the MIG for the following reasons.
19The applicant relies on a Psychological Assessment Report, prepared by Dr. Konstantinos Papazoglou in July, 2022. There is no actual date on this report. This report begins at page 9 and has not been provided in its entirety. The assessor concluded that the applicant has developed emotional and psychological problems which are consistent with a diagnosis of Adjustment Disorder (with anxiety). The applicant submits that he should be removed from the MIG due to his psychological impairment on the basis of this report.
20The respondent submits that the applicant has submitted an incomplete Psychological Assessment Report and is missing pages 1 through 8. It further submits that the psychological report submitted was completed in consideration of the treatment plans at issue and is intended to secure funding for 101 Assessments and therefore not considered for removal from the MIG.
21The respondent submits that other than the incomplete report of Dr. Papazoglou, there is no independent corroborating evidence provided supporting a psychological impairment. There are no complaints within Dr. Barrett's clinical notes and records for anxiety, and no other reports have been provided. The respondent submits that an adverse inference should be drawn from the applicant's lack of updated and complete primary care records.
22I find that the applicant has submitted a Psychological Assessment Report that is incomplete. The report is not dated. The first 8 pages of the report are missing. The missing pages of this report go to the weight placed on this document. The applicant did not rectify this or respond to the incomplete report in reply submissions. In addition, the applicant underwent this psychological assessment over four years after the accident and did not make any psychological complaints up until the date of the assessment.
23I have no evidence before me that any treating physicians or independent assessors other than Dr. Papazoglou provided a psychological diagnosis or any objective evidence that the applicant suffers from a psychological impairment as a result of the accident, nor any evidence that the applicant received any treatment for same.
24For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he sustained a psychological impairment as a result of the accident and therefore his psychological injuries are not outside of the MIG.
25As the applicant continues to be within the MIG, it is not necessary for me to determine whether the three treatment plans in dispute are reasonable and necessary, pursuant to s. 15(1) of the Schedule.
Interest
26As a result of the above, there are no overdue payment of benefits and accordingly no interest is payable by the respondent.
ORDER
27For the reasons outlined above, I find:
i. The applicant has not proven on a balance of probabilities that he suffers from chronic pain or from a psychological impairment arising from the motor vehicle accident and, as a result his injuries do not fall outside of the MIG;
ii. The applicant is not entitled to the three treatment plans in dispute; and
iii. The applicant is not entitled to interest.
Released: September 10, 2024
__________________________
Melanie Malach
Adjudicator