Licence Appeal Tribunal File Number: 22-009719/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:
Jason Killeen
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Neha Kohli, Paralegal
For the Respondent:
Noura Bagh, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jason Killeen, the applicant, was involved in an automobile accident on August 19, 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, TD Home and Auto 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?
ii. Is the applicant entitled to $2,200.00 for chiropractic services, proposed by Newmarket Health and Wellness Centre in a treatment plan dated September 19, 2020?
iii. Is the applicant entitled to $1,789.08 for chiropractic services, proposed by Newmarket Health and Wellness Centre in a treatment plan dated October 3, 2020?
iv. Is the applicant entitled to $1,300.00 for chiropractic services, proposed by Newmarket Health and Wellness Centre in a treatment plan dated November 27, 2020?
v. Is the applicant entitled to $4,137.85 for chiropractic services, proposed by Newmarket Health and Wellness Centre in a treatment plan dated February 13, 2021?
vi. Is the applicant entitled to $2,486.00 for a Psychological Assessment proposed by Q Medical in a treatment plan dated December 10, 2020?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant has demonstrated that removal from the MIG is warranted on the basis that he sustained a concussion.
4I find that the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary.
5No interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
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.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor.
8An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Jurisprudence has established that concussions are not part of the definition of minor injury. The burden of proof lies with the applicant.
9The applicant submits that he suffered from a concussion in the accident. The respondent asserts that the applicant’s injuries fall within the MIG.
The applicant sustained a concussion as a result of the accident
10The MIG definition of a minor injury does not include a concussion or post-concussion syndrome. The applicant must present evidence to support his claim that as a result of the accident he sustained a concussion that would take him out of the MIG.
11I find that the applicant has established on a balance of probabilities that he suffered from a concussion as a result of the accident.
12Dr. Zadhoush, the applicant’s family physician, provided a diagnosis of concussion on September 14, 2020, when the applicant complained of headaches, fatigue and irritability. On September 21, the applicant reported a change in vision, dizziness, fatigue, and some memory problems. Dr. Zadhoush once again diagnosed the applicant with a concussion and referred him to a physiotherapist to attend a concussion clinic.
13Records were provided from the Toronto Concussion Clinic where the applicant was prescribed a behavioral program, a cardiovascular exercise regimen, and participated in one group counseling session. In the documents filed from the clinic, it appears an exercise assessment was prepared with recommendations for an exercise regimen and the applicant was prescribed “post-concussion syndrome group counselling.” A document was also filed that appears to be notes from one group session the applicant attended on November 12, 2020. The session was entitled “Psychology of post-concussion syndrome,” with topics such as mood issues, neurophysiology of concussion, sleep and stress education.
14The respondent points out in their submissions that the records from the concussion clinic are incomplete. Pages are missing and the dates and duration of treatment is unclear. I am unpersuaded that missing pages in the records disprove that the applicant sustained a concussion.
15The applicant attended for an Insurer’s Examination with Dr. Edwin Urovitz on February 9, 2021 for a determination of whether he sustained a minor injury. Although Dr. Urovitz found that the applicant’s accident-related issues are considered to be minor, Dr. Urovitz did not review the medical records of Dr. Zadhoush and there was no mention of the applicant having sustained a concussion. As such, I place little weight on this assessment as it relates to the issue of a concussion.
16Taking into account the diagnosis of concussion from the applicant’s family doctor on two occasions, as well as the fact that he referred the applicant to a concussion clinic, I find that the applicant presented sufficient evidence to support his claim that as a result of the accident he suffered a concussion that would take him out of the MIG.
17To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the treatment plans for chiropractic services
18I find that the applicant has not proven on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary.
19The applicant makes general submissions that the pain symptoms he reports necessitate a targeted approach that chiropractic care can provide and that chiropractic care can significantly contribute to his physical rehabilitation. The applicant submits that the costs for the chiropractic services proposed are all reasonable for his continued care and recovery.
20The applicant attended to see Dr. Zadhoush on the following dates with physical complaints:
i. August 20, 2020 – abdominal pain, neck strain, tension over the shoulder blade. He was advised to apply ice or heat and to take Tylenol as needed.
ii. August 22, 2020 – shoulder pain, back pain that is manageable, abdominal pain. He was advised to apply ice or heat and to take Tylenol.
iii. September 14, 2020 – shoulder pain. The applicant advised he was attending for physiotherapy. He was prescribed Naproxen.
iv. September 21, 2020 – shoulder pain. He was diagnosed with a right shoulder injury/tendinosis. He was advised to apply ice or heat, to take Tylenol and to attend for physiotherapy.
v. September 28, 2020 – The applicant requested an ultrasound of his shoulder. Dr. Zadhoush faxed a requisition for an x-ray.
vi. September 30, 2020 – The results of the x-ray of the applicant’s right shoulder indicated “tendinopathy in supraspinatus tendon” and “subacromial/subdeltoid bursitis.”
vii. March 1, 2022 – ongoing right shoulder pain. The applicant advised he receives massage therapy and does home exercise. He was referred for physiotherapy. There was a notation that he does not need painkillers. He was diagnosed with rotator cuff tendinosis.
21Dr. Zadhoush did not refer the applicant for chiropractic services. The applicant did not provide any evidence from any medical doctor who did. In proving that the treatment plans are reasonable and necessary, the applicant relies solely on the treatment plans themselves.
22On a consideration of the applicant’s evidence, I find that the applicant has not proven on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary.
The applicant is not entitled to the treatment plan for a psychological assessment
23I do not find that the applicant has proven on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
24The applicant submits that he struggles with anxiety, depression, sleep disturbances and mood issues since the accident. The respondent submits that there is no diagnosis of a psychological impairment as a result of the accident.
25I do not find that the applicant has proven that he suffered a psychological impairment as a result of the accident. Although he reported concussion-related symptoms to Dr. Zadhoush, he did not report any psychological complaints. I have not been provided with clinical notes of any primary health care provider to support the conclusion that the applicant sought medical treatment for or complained of any accident-related psychological injuries.
26The only evidence presented by the applicant to demonstrate psychological injuries as a result of the accident is the treatment plan prepared by Dr. Rick Lindal, psychologist, for a psychological assessment that is at issue in this hearing.
27On March 8, 2021, Dr. Shahriar Moshiri, psychologist, conducted an Insurer’s Examination of the applicant. The assessment consisted of a clinical interview and three psychological tests. The applicant advised that he stopped working from August 2020 to January 2021 because of accident-related physical and psychological complaints, but then returned to modified duties and can do the job, psychologically. The applicant advised that he does not need to see a psychologist and denied depression, anger, driving phobia, or anxiety.
28Based on the interview and the results of the psychological tests, Dr. Moshiri concluded that the applicant did not present with symptoms associated with a formal psychological condition as a result of the accident and did not require psychological treatment.
29Further, although the applicant was prescribed group counseling in relation to his concussion, he only attended one session.
30In all of the circumstances, I am not persuaded by the evidence on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
32The applicant has demonstrated that removal from the MIG is warranted on the basis that he suffered a concussion.
33The applicant has not demonstrated that the disputed treatment plans are reasonable and necessary.
34No interest is payable.
Released: September 19, 2024
Laura Goulet
Adjudicator