Licence Appeal Tribunal File Number: 23-002778/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:
Kedar Nelson
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
Colin Birch, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Kedar Nelson, the applicant, was involved in an automobile accident on March 25, 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, Primmum 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 limit (MIG)?
ii. Is the applicant entitled to income replacement benefits (IRB) in the amount of $158.45 per week from April 1, 2021 to August 20, 2021?
iii. Is the applicant entitled to the treatment proposed by Mackenzie Medical Rehabilitation Centre as follows:
$3,795.50 (less amount approved ($2,191.10) for physiotherapy services submitted in a treatment plan on April 6, 2021?
$2,026.55 for physiotherapy services submitted in a treatment plan on August 28, 2021?
$1,417.70 for physiotherapy services submitted in a treatment plan on August 5, 2021?
iv. Is the applicant entitled to the treatment proposed by 101 Assessments as follows:
$2,210.00 for psychological services submitted in a treatment plan on October 4, 2021?
$2,460.00 for the cost of a psychological assessment submitted in a treatment plan on July 26, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant remains in MIG.
4As the applicant remains in MIG and the MIG funding limits are exhausted, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.
5The applicant has not proven on a balance of probabilities that he is entitled to IRB.
6As no benefit payments are outstanding, no interest is owing.
ANALYSIS
The Minor Injury Guideline (“MIG”)
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 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.”
8An 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.
9The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from due to a psychological condition.
10The respondent argues that the applicant has not met the burden of proof that he suffers from a psychological condition that warrants removal from MIG.
a) The applicant does not suffer from a psychological condition.
11I find that the applicant has not proven on a balance of probabilities that he suffers from an accident-related psychological condition to warrant removal from MIG.
12The applicant did not directly argue in his written submissions that a psychological condition exists but does make reference to a diagnosis of a psychological condition. The applicant relies on a psychological assessment by Dr. Papzoglou, psychiatrist, completed September 10, 2021.
13The respondent argues that the applicant has not proven on a balance of probabilities that he suffered a psychological condition as a result of the accident. The respondent relies on a psychological assessment by Dr. Challis, psychologist, completed on November 2, 2021.
14I find that the psychological assessment by Dr. Papzoglou diagnoses the applicant with Adjustment Disorder (mixed anxiety and depressed mood) and Specific Phobia (Driving/Passenger). Dr. Papzoglou completed several psychometric tests and used applicant’s self-reporting in developing his diagnosis.
15I find that the psychological assessment by Dr. Challis contradicts the applicant’s claim of a psychological condition as a result of the subject accident. In the assessment, Dr. Challis indicates that the applicant states that he is not actively seeking psychological support or treatment. Dr. Challis completed several psychometric tests with the applicant all with unremarkable results. Dr. Challis’ conclusion was that from a strictly psychological perspective, the applicant’s presentation and reported symptoms do not place him outside of MIG.
16I find that the applicant has not proven on a balance of probabilities that he suffers from psychological condition. I place little weight on the diagnosis on Dr. Papzoglou as it is not supported by any objective or other medical evidence. I gave more wight to Dr. Challis assessment due to the lack of any corroborating evidence supplied by the applicant to support Dr. Papzoglou’s diagnosis. There are no CNRs of medical professionals that would support the psychological diagnosis of Dr. Papzoglou., nor is there any nonmedical evidence that would support this diagnosis as the applicant returned to work full time and was driving daily. I was more persuaded by Dr. Challis diagnosis as it is consistent with the fact that the applicant has returned to work full time and is also driving daily. Additionally, the applicant reports to Dr. Challis that he is not looking for psychological support or treatment. This fact was not disputed by the applicant in his written submissions.
17The applicant has not proven on a balance of probabilities that his suffers from a psychological condition to warrant removal from MIG.
Income Replacement Benefit (IRB)
Pre-104 Week IRB
18To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
b) The applicant is not entitled to IRB.
19I find that the applicant has not proven on a balance of probabilities that he is entitled to receive IRB.
20The applicant submits that he is entitled to IRB of $158.45 per week from April 1, 2021 to August 20, 2021. The applicant relies on an improper denial of the IRB claim by the applicant. The applicant submits that the respondent failed to indicate why the applicant does not qualify for IRB, nor provided any medical or other reasons for the denial or lack of payment.
21The respondent submits that the applicant is not eligible to receive IRB on the basis of lack of medical evidence provided, no confirmation of return to employment times from the applicant’s employer, and s.44 reports from Dr. Challis, psychologist completed on November 2, 2021, and a physical medicine and rehabilitation specialist assessment from Dr. Oshidari, GR and rehabilitation specialist, completed on July 29, 2021.
22I find that the psychological assessment by Dr. Challis does not support that the applicant is eligible for IRB. Dr. Challis concluded that from a psychological perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment. During the assessment the applicant reported returning to work after approximately 8 weeks. This would mean the applicant returned to work sometime in late May of 2021.
23I find that the physical medicine and rehabilitation specialist report by Dr. Oshidari does not show that the applicant is eligible for IRB. The applicant reported being independent in all activities of daily living on a good day. The applicant reported to Dr. Oshidari that he had returned to work one week prior to the assessment which would me he returned to work approximately July 22, 2021. Through the physical examination completed, Dr. Oshidari concluded that the physical injuring sustained from the accident were minor in nature. Dr. Oshidari’s finding would not support that the applicant suffered a substantial inability to perform essential tasks of his employment as a result of the accident.
24I find that the eligibility of the applicant would start on July 21, 2021, not April 1, 2021, as claimed by the applicant. s.36(3) of the Schedule states “An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted”. The respondent did not receive the OCF-3 from the applicant until July 21, 2021. This would mean that the applicant would not be eligible to receive IRB based on his reporting to Dr. Challis that his return to work was late May, or his reporting to Dr. Oshidari that he returned to work approximately July 22, 2021.
25The respondent submits that they never received information on when the applicant returned to work. Additionally, as per the Case Conference and Order, the applicant was required to provide the respondent with confirmation from their employer regarding the date he returned to work or the employment file. The respondent submits they have not received this information.
26I find that the applicant has not proven on a balance of probabilities he is eligible to receive IRB. I have not been provided with evidence that substantiates when the applicant returned to work. Based on the applicant’s reporting to either Dr. Challis or Dr. Oshidari of late May or approximately July 22 respectively, neither or those dates would make the applicant eligible for IRB, based on him only submitting his OCF-3 to the respondent on July 21, 2021. As to the applicant’s claim that the respondent did not provide appropriate denials, I find no evidence of that fact in reviewing all of the submitted explanations of benefits. The explanations of benefits were submitted to the applicant within set timelines, and provided a full and complete explanation as to why benefits were not being approved.
27I find that the applicant is has not proven on a balance of probabilities that he is entitled to IRB.
28As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans. The plans are not payable.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
ORDER
30I find that:
i. The applicant remains in MIG.
ii. As the MIG limit has been exhausted, it is not necessary for me to consider if the applicant is entitled to the treatment plans in dispute.
iii. The applicant has not proven on a balance of probabilities he is entitled to IRB.
iv. As there are no outstanding benefit payments, no interest is owing.
v. The application is dismissed.
Released: March 24, 2025
Robert Rock
Adjudicator