Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-008647/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:
Jashandeep Singh
Applicant
and
Belair
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Nidhi Vinayak, Counsel
For the Respondent: Patricia Dimakos, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mr. Jashandeep Singh (the applicant), was involved in an automobile accident on May 29, 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, Belair, 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 a psychological assessment recommended in a treatment plan (OCF-18) submitted on December 9, 2021?
iii. Is the applicant entitled to $17.19 ($1,187.48 less $1,170.29 approved) for physiotherapy from the recommended in the OCF-18 submitted on November 26, 2021?
iv. Is the Applicant entitled to $8,117.72 for a chiropractic assessment recommended in the OCF-18 submitted on January 22, 2023?
v. Is the Applicant entitled to $8,441.10 for a neurological examination recommended in the OCF-18 submitted on January 22, 2023?
vi. Is the Applicant entitled to $2,867.95 for an attendant care assessment recommended in the OCF-18 submitted on January 22, 2023?
vii. Is the Applicant entitled to $4,373.10 for a mental health assessment recommended in the OCF-18 submitted on January 22, 2023?
viii. Is the applicant entitled to an award under s. 10 of O. Reg. 664, because of unreasonably withheld or delayed payments?
ix. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG;
4As the applicant remains in MIG, he is not entitled to the treatment plans in dispute;
5As no payments are overdue, interest is not payable; and
6As no payment were unreasonably delayed or withheld, no award is payable.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.
8Section 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 injuries. 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.”
9An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal. In all cases, the burden of proof lies with the applicant.
10In this instance, the applicant submits that he should be removed from due to his injuries being more than minor, that he suffers from chronic pain, and has sustained a psychological condition as a result of the accident.
11The respondent argues that the applicant has not met the burden of proof that his injuries are more than minor in nature, or that he suffers from either chronic pain with a functional impairment or a psychological condition.
Are the applicant injuries sustained minor in nature?
12I find that the applicant has not sustained injuries as a result of the accident that are not included in the definition of “minor injury” in s. 3(1) of the Schedule.
13Section 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.”
14The applicant submits that his injuries fall outside of those defined in s. 3(1) of the Schedule. The applicant relies on clinical notes and records (CNRs) from Dr. Bandaranayake, a walk-in clinic doctor. The CNRs from Dr. Bandaranayake show only one visit after the accident. In the notes of that visit, the doctor does not indicate concern about the injuries sustained by the applicant, it is not clear in the notes if the doctor was going to make a referral for a CT. The doctor notes physiotherapy for the applicant’s back pain. In addition, the doctor notes that the headaches and nose bleeds are not regular and are improving.
15The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that his injuries are more than those outlined as minor in the Schedule. The respondent relies on a MIG assessment completed by Dr. Hanna on February 28, 2022. This was an in-person examination. The physical examination was unremarkable with no abnormalities uncovered, and consistent range of motion in all areas. The applicant did not report any issues completing his activities of daily life. The diagnosis based on the assessment was the applicant’s injuries were sprain/strain in nature and considered minor as defined by MIG.
16Dr. Hanna completed a general practitioner addendum on March 7, 2023. In this addendum, the doctor reviewed additional documentation made available, and did not change his initial diagnosis that the applicant suffered minor injuries.
17Dr. Hanna completed a GP MIG assessment on April 25, 2023. This assessment was reviewing the OCF-18 submitted by Dr. Chung for $8,117.72. The assessment was in-person and contained a physical examination. The examination was unremarkable, and the applicant had full range of motion in all tests. During the examination it was also determined that some of the sprain/strain injuries originally reported in Dr. Hanna’s first report had resolved. Dr. Hanna opined that the OCF-18 was not reasonable or necessary.
18In review of all the medical evidence presented to me, I have not been directed to compelling medical evidence that supports the applicant’s claim that his injuries are more than minor in nature. The CNRs of the applicant’s doctor note that the injuries were minor in nature. The multiple examinations by Dr. Hanna were much more detailed that that of the applicant’s doctor and Dr. Hanna did not find any evidence of the injuries the applicant sustained were sustained beyond sprain or strain in nature.
19The applicant has not proven on a balance of probabilities that he suffers from injuries that were more than minor in nature.
Does applicant have chronic pain with a functional impairment?
20I find that the applicant has failed to prove on a balance of probabilities that he has chronic pain with a functional impairment as a result of the accident.
21The Tribunal has determined that chronic pain with a functional impairment may warrant an injured person’s removal from the MIG.
22The applicant submits that due to the accident, he suffers from chronic pain with a functional impairment. He relies on a mental health assessment from Dr. Leon Steiner completed on April 19, 2023. This assessment was done via video conference and was interview based with psychometric testing. The applicant has not directed me to where in the assessment Dr. Steiner tested the applicant to diagnose chronic pain. The assessment by Dr. Steiner at times asserts that the applicant has chronic pain, but does not outline how or why the doctor came to that belief.
23The respondent submits that the applicant has not met his burden of proving on a balance of probabilities that he suffers from chronic pain with a functional impairment. The respondent relies on a MIG assessment by Dr. Hanna and a psychological MIG assessment by Dr. Saunders.
24The MIG assessment was completed by Dr. Hanna on February 28, 2022. This was an in-person examination. The physical examination was unremarkable with no abnormalities uncovered, and consistent range of motion in all areas. The applicant did not report any issues completing his activities of daily life. In his diagnosis, the doctor specifically addressed chronic pain. The doctor used the American Medical Association’s (AMA) Guidelines to assess chronic pain syndrome and found in his medical opinion, the applicant does not meet any of the criteria outlined in the AMA Guidelines.
25In review of the evidence, I am not directed to medical evidence by the applicant that he suffers from chronic pain. While chronic pain is mentioned in passing by Dr. Steiner, there is no medical evidence or testing that chronic pain is present. In comparison, Dr. Hanna specifically addressed chronic pain in his medical examination and found it not to be present.
26The applicant has not proven on a balance of probabilities that he suffers chronic pain with a functional impairment such that he should be removed from the MIG on this basis.
Does the applicant suffer from a psychological condition as a result of the accident?
27I find that the applicant has failed to prove on a balance of probabilities that he sustained a psychological condition as a result of the accident.
28The Tribunal has determined that a psychological condition may warrant MIG removal.
29The applicant submits that due to the accident, he suffers from psychological condition. He relies on a mental health assessment from Dr. Leon Steiner, and a pre-assessment screening report by Mr. Kaur, Psych Assoc. under the supervision of Dr. Mrahar, Psychologist.
30The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that he suffers from a psychological condition. They rely on several psychological MIG assessment by Dr. Saunders
31The pre-assessment screening report was completed Mr. Kaur on November 18, 2021. This was interview based and did not include any testing. The report outlines that the applicant reported experiencing anxiety, and concerns about driving. In addition, the report includes issues with sleeping. The provisional diagnosis was Post Traumatic Stress Disorder and Adjustment Disorder. Unfortunately, Mr. Kaur does not insights on how he rendered this diagnosis, or what specifically led him to this determination.
32The mental health assessment by Dr. Steiner was completed on April 19, 2023. This assessment was done via video conference and was interview based with psychometric testing. During the interview, the applicant indicated that he was “doing all the things I used to, but with back pain”. Regarding his social activity, he stated it was “basically the same” as to prior to the accident. A range psychometric tests were administered including chronic pain psychiatric questionnaire, but the results were not shared. The results of the automobile anxiety inventory. Patient health questionnaire, show the applicant to have mild depression. The generalized anxiety disorder 7-item scale shows mild anxiety and including, difficulty doing his work, taking care of things at home, and getting along with other people. Based on the psychometric test results and the clients self reporting, The applicant has not directed me to how Dr. Steiner rendered his diagnosis of adjustment disorder and specific phobia. In addition, the doctor indicates that the applicant suffers a substantial inability to perform essential tasks due to chronic pain, emotional distress, compromised psychological function, cognitive difficulties, and fears of vehicular travel. The applicant has not directed me to reporting that indicates sever impairments.
33The psychological MIG assessment was completed by Dr. Saunders on March 08, 2022. This was conducted in-person and comprised of an interview and psychometric testing. The testing indicated findings ranging from not marked elevation, to mild or normal ranges. The testing led Dr. Saunders too diagnosis the applicant as below the threshold to meet clinical criteria for psychological impairments. The test results of the psychometric tests administered by Dr. Saunders showed the same mild responses to those administered by Dr. Steiner. I was more persuaded by the final diagnosis rendered by Dr. Saunders as it was inline with the test results of being mild or normal ranges.
34A psychological MIG Addendum was completed by Dr. Saunders on January 27, 2023. This addendum was to review additional documents for a potential reassessment of his diagnosis. The review did not changes the doctor’s original prognosis that the applicant is below the threshold to meet clinical criteria for psychological impairment.
35A psychological MIG Assessment was completed by Dr. Saunders on July 18, 2023, to review if an OCf-18 by Dr. Chung for $4,373.10 was reasonable and necessary. This was an in-person examination in which the doctor administered the same psychometric testing and found the same results, that the applicant does not meet clinical criteria for a psychological impairment.
36The applicant has not directed me to compelling medical evidence to substantiate a psychological condition. Neither of the reports submitted by the applicant provide a depth of understanding to outline how their diagnoses were reached. In addition, in Dr. Steiner’s report, the diagnosis seems to conflict with the results of the interview portion and the psychometric testing. In comparison, Dr. Saunders outlined a clear connection between his psychometric testing and his diagnosis. I was more persuaded by the assessment completed by Dr. Saunders which seemed to provide a diagnosis consistent with the psychometric testing results.
37The applicant has not proven on a balance of probabilities that he suffers from a psychological condition as a result of the accident and, therefore, is not removed from the MIG on this basis.
38For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
39As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
Interest
40As there are no benefits owing, no interest is payable.
Award
41No special award under s. 10 of O. Reg. 664 because of unreasonably withheld or delayed payments is owed. As no benefits were unreasonably delayed or withheld by the respondent, no award is payable.
ORDER
42I find that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to payment for any treatment plans.
iii. As nothing is owed, no interest is payable.
iv. As no benefits were unreasonably withheld or delayed by the respondent, no award is payable.
43The application is dismissed.
Released: October 7, 2024
Robert Rock
Adjudicator