Licence Appeal Tribunal File Number: 22-010050/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:
Harjinder Singh
Applicant
and
Certas Direct Insurance Company*
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Sulakshana Kumar, Counsel
For the Respondent:
Brett Kodak, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Harjinder Singh, the applicant, was involved in an automobile accident on April 17, 2020, 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, the applicant fell within the Minor Injury Guideline (the “MIG”). The applicant disagrees.
ISSUES
4The issues in dispute were identified and agreed to as follows:
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 MIG limit?
Is the applicant entitled to $2,254.97 for chiropractic services, proposed by Dr. Rahim Jessa, Chiropractor at Complete Rehab Centre, in a treatment plan submitted on February 24, 2022, and denied on April 14, 2022?
Is the applicant entitled to $2,460.00 for the cost of a psychological assessment proposed by Dr. Betty Kershner, Psychologist, Complete Rehab Centre, in a treatment plan submitted on March 31, 2022, and denied on April 14, 2022?
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 to determine whether interest is payable.
ANALYSIS
Did the applicant sustain predominantly minor injuries as defined under the Schedule?
(a) The Minor Injury Guideline
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. Section 3(1) of the Schedule defines a “minor injury” 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.
7An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant. The 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.).
8The applicant submits that he should be removed from the MIG on the basis that his pre-existing conditions were exacerbated by the accident and preclude recovery if he is kept within the confines of the MIG. He further submits that he has sustained chronic pain with functional impairment and a psychological impairment as a result of the accident.
9I find that the applicant has not satisfied s. 18(2) of the Schedule. He has not proven on a balance of probabilities that he has a documented pre-existing condition that would prevent him from achieving maximal medical recovery under the MIG. I further find that he has not proven on a balance of probabilities that he suffers from chronic pain or 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 a pre-existing condition that would remove him from the MIG?
10I find that the applicant has not provided compelling evidence that he had pre-existing medical conditions that would prevent him from achieving maximal medical recovery within the MIG.
11The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.
12Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 limit on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit on treatment costs under the MIG.
13The applicant submits that he should be removed from the MIG based on his pre-existing left knee pain and his pre-existing psychological conditions which have been exacerbated as a result of the accident. The applicant submits that he suffered an MCL tear to his left knee a month and a half prior to the accident. He further submits that he suffered a pre-existing psychological condition.
14The respondent submits that the applicant has not provided any medical evidence to support that he has a pre-existing physical or psychological condition that would prevent him from achieving maximal medical recovery within the MIG. There is no diagnostic imaging report to substantiate that he suffered an MCL tear, and this diagnosis does not appear anywhere in the medical records provided to date. The Left Knee MRI Report, dated July 23, 2020, showed a degenerative condition and there is no medical evidence provided that the pre-existing condition would prevent the applicant from achieving maximal medical recovery within the MIG. In addition, the applicant has not provided evidence of any pre-existing psychological condition that would prevent the applicant from achieving maximal medical recovery within the MIG. His last psychological complaint made to his family physician, Dr. Bunn, was over a year and a half pre-accident.
15Aside from noting the existence of pre-existing conditions in his submissions, the applicant has not directed me to any evidence that either of these conditions would preclude him from achieving maximal medical recovery if he was kept within the MIG limits. While the applicant argues that these pre-existing conditions were exacerbated, this is not the test. The test is whether the pre-existing condition would prevent maximal medical recovery and the applicant has not addressed that.
16In reviewing the clinical notes and records (“CNRs”) of Dr. Bunn, I find that the applicant attended his family doctor on two occasions on December 12, 2018 and January 8, 2019 with psychological complaints. There are no additional records from the applicant’s family doctor documenting any ongoing psychological complaints thereafter. I find that the applicant has provided insufficient evidence to show that these psychological complaints from 2018 and 2019 would prevent maximal medical recovery post-accident if he is to be treated under the MIG.
17With respect to the applicant’s left knee condition, while the applicant reported that he suffered an MCL tear to his left knee prior to the accident, there is no documentation to support this diagnosis. The Emergency Record from Headwaters Health Care Centre dated March 2, 2020, notes “painful LT knee” and the x-ray found “no fracture, subluxation or dislocation. Alignment is anatomic. Soft tissues are unremarkable. No joint effusion”. There are no follow-up clinical notes provided and no diagnosis of an MCL tear.
18The applicant submits that he received physiotherapy prior to the accident for his left knee condition, but no records have been provided. The Left Knee MRI dated July 23, 2020, which was taken after the accident, reveals “some chondromalacia on the femoral component”. On August 7, 2020, the applicant had a phone consultation with his family doctor, Dr. Bunn, where he discussed the results of the MRI. Dr. Bunn’s notes from the call states “advised mri result knee, still pain knee in am.” Dr. Bunn makes no mention about a prognosis or any limitations based on the MRI results and makes no mention of the accident. I find that the applicant has not provided any medical documentation supporting that he suffered an MCL tear to his left knee. In addition, I find that the applicant has provided insufficient evidence to show that any pre-existing left knee condition would prevent maximal medical recovery post-accident if he is to be treated under the MIG.
19For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he had pre-existing conditions that would prevent him from achieving maximal medical recovery within the MIG.
(c) Does the applicant suffer from chronic pain that would remove him from the MIG?
20I 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.
21The respondent relies on the Tribunal’s ruling in O.P. v. Intact Insurance Company, 2020 CanLII 27414 (ON LAT), which provides helpful guidance for deciding MIG claims based on chronic pain (at para. 15):
An applicant is not automatically removed from the MIG as a result of ongoing pain alone. Ongoing pain must also be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on the individual’s well-being. A diagnosis of chronic pain without any discussion of the level of pain or its effects on the person’s functioning will not be sufficient to remove them from the MIG.
22The applicant submits that his medical records support chronic neck, low back, left knee and psychological impairments. He relies on the OCF-18s submitted by Dr. Jessa, Chiropractor, at Complete Rehab Centre. He further submits that he has ongoing pain complaints from the time of the accident until present as well as numerous functional limitations such as limited range of motion and stiffness to the affected areas. He submits that his injuries have had a significant impact on all facets of his normal life including physical, emotional and cognitive spheres and have substantially interfered with his activities of daily living. He submits that he is disabled from returning to his pre-accident activities such as running, playing hockey, and going to the gym.
23The respondent submits that the applicant has not provided any evidence in support of his claim that he is suffering from chronic pain. No medical practitioner has made such a diagnosis or provided any analysis on how the chronic pain criteria from the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. would apply to the applicant. The respondent further submits that the applicant’s reports of ongoing pain have not been accompanied by evidence of impaired functioning. The applicant has not provided any evidence of accident-related work limitations, housekeeping limitations, recreational limitations or social limitations. It further submits that the applicant did not miss any time from work as a result of the subject accident and by 2022 he was playing hockey “regularly without difficulty”.
24While I accept that the applicant experienced pain following the accident, I am not satisfied on a balance of probabilities that he has established that it is chronic pain meriting removal from the MIG. Specifically, I find the applicant has not provided evidence of the level of his pain or the effects on his functioning.
25In reviewing the CNRs of the family doctor, Dr. Bunn, I find that the applicant saw Dr. Bunn for the first time post-accident on June 10, 2020. The note indicates that the applicant had a previous injury to his left knee and had been receiving physiotherapy prior to the accident. (note that there are no pre-accident physiotherapy CNRs provided). Dr. Bunn noted on examination that range of motion is full and there is minimal joint line tenderness. The applicant makes no further accident-related complaints. The next clinical note is related to a phone consultation on August 7, 2020, where Dr. Bunn states that he discussed the results of the left knee MRI which showed “chondromalacia knee”. There are no further CNRS that indicate visits to Dr. Bunn regarding the applicant’s left knee or any accident-related complaints.
26The applicant had an initial period of physiotherapy at Lifemark North Bramalea from April 24, 2020 to August 7, 2020. He was then assessed at Complete Rehab Centre on June 24, 2021. The Disability Certificate prepared by Dr. Jessa, Chiropractor, dated June 24, 2021, lists “other chronic pain” under injuries suffered however the CNRs from Complete Rehab Centre do not provide evidence of any functional impairment or limitations.
27The respondent has submitted the applicant’s OCF-1 dated April 29, 2020, which notes that his accident-related injuries did not prevent him from working as a distribution manager at Longos. The respondent has also submitted a copy of the Consultation Report, dated February 28, 2022, prepared by Dr. Tjandrawidjaj (Cardiologist) at Brampton Civic Hospital which noted that the applicant “plays hockey regularly without difficulty”. This is in direct contradiction to the applicant’s submissions that he is unable to play hockey. I find that the applicant has not provided any evidence of accident-related work limitations, housekeeping limitations, recreational limitations or social limitations.
28For 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 he is not outside of the MIG for that reason.
(d) Does the applicant suffer from psychological injuries that would remove him from the MIG?
29I 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.
30The applicant submits that he suffers a psychological impairment as a result of the accident which has had a significant impact on all facets of his normal life including physical, emotional and cognitive spheres. He relies on the OCF-18, dated February 24, 2022, prepared by Dr. Jessa, Chiropractor, who opined that he has been psychologically impaired. He submits that the psychological screen test revealed documented sleep problems, thoughts of accident, and problems with memory/concentration, driving/passenger anxiety, moderate to severe. Dr. Jessa, Chiropractor, recommended a psychological assessment.
31The respondent submits that the only evidence put forth of any psychological complaints is the OCF-18, dated February 24, 2022, prepared by Dr. Jessa, Chiropractor, proposing a psychological assessment. The respondent submits that Dr. Jessa is a chiropractor, who is not qualified to diagnose or treat psychological conditions. There are no post-accident psychological complaints or diagnoses noted in the CNRs of Dr. Bunn, Lifemark Physiotherapy or Complete Rehab Centre.
32I do not find that the applicant has provided a sufficient evidentiary basis to determine that his psychological complaints merit removal from the MIG. The first mention of any psychological complaints was almost two years post-accident in the Treatment Plan, dated February 24, 2022, when a psychological assessment was recommended by Dr. Jessa who is a chiropractor. There were no psychological complaints noted in the CNRs of the applicant’s family doctor, Dr. Bunn, Lifemark North Bramalea or Complete Rehab. I find no objective evidence that the applicant suffers from a psychological impairment as a result of the accident.
33For 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.
34As the applicant continues to be within the MIG, it is not necessary for me to determine whether the two treatment plans in dispute are reasonable and necessary, pursuant to s. 15(1) of the Schedule.
Interest
35As the applicant continues to be within the MIG and there is no overdue payment of benefits, it is not necessary for me to determine whether interest is payable.
ORDER
36For the reasons outlined above, I find:
i. The applicant’s injuries are predominantly minor and therefore subject to the treatment within the MIG;
ii. The applicant is not entitled to the two treatment plans in dispute; and
iii. The applicant is not entitled to interest.
Released: September 27, 2024
Melanie Malach
Adjudicator