Licence Appeal Tribunal File Number: 22-013342/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:
Devanand Bachoo
Applicant
and
Aviva Insurance Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Bianca Pirrotta-Iaccino, Paralegal
For the Respondent:
Joshua Edmunds, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Devanand Bachoo, (the “applicant”), was involved in an automobile accident on August 27, 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 Aviva Insurance Canada (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:
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?
Is the applicant entitled to $2,838.79 for chiropractic services, proposed by Alma Rehab Inc., in a Treatment Plan (“OCF-18”) submitted on January 8, 2021 and denied on January 19, 2021?
Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Alma Rehab Inc., in a OCF-18 submitted on January 22, 2021 and denied on February 3, 2021?
Is the applicant entitled to $2,737.69 for chiropractic services, proposed by Alma Rehab Inc., in a OCF-18 submitted on February 25, 2021 and denied on March 10, 2021?
Is the applicant entitled to $2,416.63 for chiropractic services, proposed by Alma Rehab Inc., in a OCF-18 submitted on June 22, 2021 and denied on July 7, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. The applicant is not entitled to the treatment plans, nor interest.
iii. The application is dismissed.
ANALYSIS
Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury. 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.”
5An 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 from any accident-related minor injury 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.
6In all cases, the burden of proof lies with the applicant. Here, the applicant argues that his extensive tearing of the left supraspinatus and subscapularis tendons and psychological symptoms, fall outside of the MIG.
7Meanwhile, the respondent submits that the applicant was diagnosed with minor myofascial injuries to his left shoulder and back by his family physician, Dr. Alex McCallion. It further argues that Dr. McCallion in his clinical notes and records (“CNRs”) noted that the applicant did not have any “psychological hang-ups regarding the MVA.” As a result, it argues that the evidence demonstrates that the applicant has sustained soft tissue injuries which remain properly within the MIG.
The applicant is not barred from proceeding with his claim
8The respondent in its initial submissions argues that the applicant is disentitled from bringing any dispute in relation to any psychological treatment or psychological complaints under s. 55 of the Schedule because he did not attend an Insurer’s Examination (“IE”). The respondent also argues that it is prejudicial for the applicant to dispute the applicability of the MIG, the above-noted OCF-18s, and rely upon the provisional diagnoses contained in the pre-screen assessment completed by Dr. Konstantinos Papazoglou, psychologist, when he has not attended an IE. To this end, it relies upon an Explanation of Benefits, dated February 3, 2021, and Notice of Missed Appointment.
9Section 44 of the Schedule permits an insurer to examine an insured person by one or more regulated health professionals (or a vocational rehabilitation expert) to determine whether the insured person is, or continues to be, entitled to a benefit. Section 44 provides certain requirements for an insurer to comply with in order to evoke its rights to an IE.
10The requirements for a Notice of Examination are set out in section 44(5) of the Schedule:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
a) the medical and any other reasons for the examination;
b) whether the attendance of the insured person is required at the examination;
c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
11Pursuant to s. 55(1)2 of the Schedule, an applicant shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied.
12Despite filing reply submissions, the applicant did not provide any arguments with respect to this issue.
13I find that the applicant is not barred from proceeding forward with the issues in dispute.
14The Schedule is clear that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule-compliant notice. The respondent must first prove that a Notice of Examination complies with s. 44(5) of the Schedule in order for it to rely on it as a basis to seek a statute bar under s. 55. Here, the respondent has not met its onus because it has not provided me with a copy of the notice that was sent under s. 44. Rather, the respondent produced an Explanation of Benefits where it advised the applicant it was denying the OCF-18 for a psychological assessment and that an IE would be scheduled and details would be provided in a separate cover.
15As the respondent did not provide a copy of the notice, then it cannot rely upon the remedy available in s. 55 because it has the onus to establish that the notice is compliant with s. 44. In order for an insurer to invoke its s. 44 right to an IE, it must first provide a legally sufficient notice pursuant to s. 44(5).
16To conclude, the applicant may proceed with his application because the respondent has not met its onus.
Is the applicant removed from the MIG because of extensive tearing in the left supraspinatus and subscapularis tendons?
17No, I find that the applicant remains in the MIG because he has not demonstrated that he sustained a complete tear in his left shoulder.
18The applicant argues that an ultrasound of his left shoulder was completed on January 21, 2021, which found that he sustained extensive tearing of the left supraspinatus and subscapularis tendons. He argues that extensive tearing is not captured within the MIG limit and that s. 3 of the Schedule explicitly indicates that a complete tear is not considered to be treatable under the MIG limits. To support this position, he relies upon the CNRs of Dr. McCallion.
19The respondent summarized both the CNR of Dr. McCallion where the ultrasound, dated January 21, 2022 was noted, and the subsequent MRI, dated February 1, 2021, which revealed advanced AC joint and glenohumeral joint arthritis, supraspinatus and subscapularis tendinopathy, probable labral tear, and fatty proliferation of the synovial suggestive of lipoma arborescens.
20I find that extensive tearing does not remove you from the MIG unless it is a complete tear. I am alive to the applicant’s argument that extensive tearing is not subject to the MIG limit. I disagree, I find that in order to be removed from the MIG on the basis of a tear, the applicant has to demonstrate that he sustained a complete tear. This is because of the definition of a “minor injury” in s. 3(1) of the Schedule, which states that a sprain and strain includes a partial but not a complete tear.
21Here, the applicant has presented limited evidence to support he sustained a complete tear. Indeed, the applicant largely relies upon the CNR entry of Dr. McCallion, dated January 25, 2021, where he noted that an ultrasound conducted on January 21, 2021, revealed extensive tearing of the left supraspinatus and subscapularis tendons, and an MRI was requisitioned. Significantly, the applicant did not produce a copy of the ultrasound report, dated January 21, 2021, and Dr. McCallion did not identify in this CNR whether the extensive tearing was a partial or complete tear. Without a copy of the ultrasound report, I am unable to determine whether the applicant sustained a complete tear, and therefore he has not met his onus to establish he should be removed from the MIG on this basis.
22Further, I find that the MRI of the left shoulder, dated February 1, 2021, demonstrates that the applicant sustained a probable labral tear, however it does not show whether the probable tear was a partial or complete tear. The applicant has not referred me to evidence to show that further investigations were conducted or a medical opinion where it was confirmed that he sustained a full tear. As noted above, the MRI conducted on February 1, 2021, revealed advanced arthritis, tendinopathy in the supraspinatus and subscapularis tendinopathy, fatty proliferation and most crucially, a probable labral tear. However, the MRI does not indicate whether the probable tear was a partial or a complete tear.
23Finally, the applicant argues that the s. 44 report completed by Dr. Maria Nesterenko, family physician, is deficient because she failed to comment on the shoulder tear that was found upon completion of the ultrasound, dated January 21, 2021. However, the onus rests on the applicant to prove that he should be removed from the MIG on the basis of tearing in the left shoulder, not on the respondent to disprove it. In this regard, the applicant has fallen well short of meeting his burden because he did not provide a copy of the ultrasound report, dated January 21, 2021, Dr. McCallion did not specify whether he sustained a complete or partial tear in his CNR entry and the subsequent MRI revealed a probable labral tear but there was no indication of whether it was a complete or partial tear. The CNRs of Dr. McCallion after the MRI (May 6, 2021, and July 8, 2021) note that the applicant was positive for COVID-19 and had ongoing discomfort in his left shoulder. However, there is no indication in these entries that the applicant sustained a complete tear in his left shoulder.
24In short, the applicant has not demonstrated on a balance of probabilities that he sustained a complete tear in his left shoulder, he remains within the MIG.
The applicant is not removed from the MIG on the basis of a psychological impairment
25I find that the applicant has not met his burden of proof to demonstrate that he should be removed from the MIG based on a psychological impairment.
26Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he has a psychological impairment rather than psychological symptoms that are sequelae of a minor injury.
27The applicant relies upon the pre-screen assessment completed by Dr. Papazoglou, dated January 14, 2021, where he complained of psychological symptoms such as: disturbed sleep, exhaustion, fatigue, vehicular anxiety and nervousness, general anxiety, intrusive thoughts, low energy, decreased interest, and motivation, worry about the future and decreased enthusiasm. He further argues that Dr. Papazoglou provisionally diagnosed him with an adjustment disorder with mixed anxiety and depressed mood.
28The respondent argues that on September 24, 2020, Dr. McCallion in his CNR noted that the applicant had no “psychological hang-ups” regarding the accident. It further argues that Dr. Papazoglou’s diagnosis is provisional and no assessment was conducted to confirm whether the applicant sustained a psychological impairment.
29The applicant also relies upon the Tribunal’s decision of Applicant v. Scottish & York, 2018 CanLII 112111 (ON LAT), where he argues that the adjudicator determined that psychological symptoms are not included in the definition of the MIG. I am not bound by other Tribunal decisions, and I disagree with the adjudicator’s interpretation of the Schedule because the MIG contemplates psychological symptoms that are the clinically associated sequelae, or consequences, of minor injuries resulting from an accident. An applicant must show that they have sustained a psychological impairment that is more than mere sequelae of soft tissue injuries to be removed from the MIG, which has not been done here for the following reasons.
30I find that the CNRs of Dr. McCallion do not support a finding that the applicant should be removed from the MIG on the basis of a psychological impairment because the applicant did not report any psychological symptoms in the period after the subject accident. Indeed, on September 24, 2020, Dr. McCallion wrote in his CNR “looks well-he has no psychological hang-ups regarding the MVA.” Nor did Dr. McCallion diagnose the applicant with a psychological impairment, refer him for psychological treatment, or prescribe any medication.
31In my opinion, the pre-screen assessment conducted by Dr. Papazoglou holds little evidentiary value because no psychometric testing was done, a provisional diagnosis was made solely on the applicant’s self-reporting, which I find is unsupported by the other contemporaneous medical evidence, like the lack of complaints to Dr. McCallion. I also find that Dr. Papazoglou did not review any medical evidence because none are listed in the pre-screen assessment. The applicant has also not addressed why he did not report psychological symptoms to Dr. McCallion, despite seeing him one week after the pre-screen assessment (January 20, 2021).
32In conclusion, I find that the applicant has not met his burden of proof to establish on a balance of probabilities that he has a psychological impairment, to warrant removal from the MIG.
33Having found that the applicant sustained a predominantly minor injury, it follows that he is subject to the MIG and the $3,500.00 funding limit on treatment. Therefore, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required.
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.
ORDER
35For the reasons outlined above, I find that:
ii. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
iii. He is not entitled to the treatment plans, nor interest.
iv. The application is dismissed.
Released: January 10, 2025
Tanjoyt Deol
Adjudicator