Licence Appeal Tribunal File Number: 22-008689/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:
Irwin Torres Bejar
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kieffer Norton
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Danielle Malone, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1Irwin Torres Bejar, the applicant, was involved in an automobile accident on July 12, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”). The respondent also submits that, even if the MIG is found not applicable, the applicant has not established that the disputed treatment plan are reasonable and necessary.
3The applicant’s position is that their PTSD and chronic pain as result from the accident warrants MIG removal and that the proposed treatment plans are reasonable and necessary.
ISSUES
4The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schediule and therefore subject to treatment within the $3,500.00 MIG limit?
ii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HydroHealth in a treatment plan/OCF-18 (“plan”) dated May 3, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has suffered a psychological impairment as defined by s. 3 of the Schedule. I find $2,460.00 for a psychological assessment proposed by HydroHealth in a treatment plan/OCF-18 (“plan”) dated May 3, 2022 reasonable and necessary. The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Minor Injury Guideline
6Section 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 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.
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside the MIG, or under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating the condition precludes 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.
8The applicant submits that they have developed chronic pain and PTSD as a result of the MVA and that they should be removed from the MIG as a result of these injuries.
9The respondent submits that the applicant has failed to prove their injuries fall outside of the MIG.
10I find that the applicant has met their burden to show that they sustained a psychological impairment in the accident which warrants their removal from the MIG.
Did the applicant sustain a psychological impairment as a result of the accident?
11The applicant provides the treating clinical notes and records (CNRs) of Dr. Maharajh, the applicant’s family doctor, that contain numerous references to PTSD, as proof the applicant is suffering from PTSD. The applicant also provides an OCF-3 authored by Dr. Maharajh dated August 21 ,2020, that states the applicant is suffering from PTSD as direct result of the accident
12The clinical notes and records of Dr. Maharajh contain multiple references to PTSD. On August 18, 2020 Dr. Maharajh noted that the applicant’s PTSD symptoms were improving. On September 2nd, 2020 he noted that the applicant’s PTSD symptoms were ongoing and discussed breathing exercises to help with symptoms. On September 10th, 2020 he noted that the applicant’s PTSD was improving.
13In the clinical notes and records of Dr. Maharajh dated January 17, 2022 the applicant would continue to complain of PTSD symptoms. The applicant would again continue to report symptoms of PTSD upon visiting in March, April and May of 2022.
14I find that the number of dates the applicant reported PTSD to Dr. Maharajh to be compelling as it shows the applicant was consistent in the reporting of their symptoms. I also find that the OCF-3 which was filed By Dr. Maharajh, the applicant’s family doctor, compelling as it states that the PTSD symptoms the applicant was suffering to be directly attributable to the motor vehicle accident in question.
15The respondent raises that the PTSD referred in Dr. Maharajh’s CNRs are not as a result of the accident, rather they are result of anxiety from the applicants’ loss of his father. The respondent posits that the applicant’s family doctor has never made substantive comment relating to the causation of the applicants PTSD. However the OCF-3 dated August 21, 2020 completed by the applicant’s family doctor states that the applicant is suffering from PTSD as a result of the accident. On the information and sequalae portion of the OCF-3 form Dr. Maharajh’s notes that the applicant is suffering from PTSD.
16As such I find that the applicant, through the CNRs and OCF-3 which mention they are suffering from PTSD consistently, has sustained a psychological impairment as a result of the MVA.
Did the applicant sustain chronic pain as a result of the motor vehicle accident?
17In his clinical notes and records Dr. Maharajh states the applicant was in an MVA and experiencing musculoskeletal pain. The applicant reported this pain in almost every consultation with Dr. Maharajh.
18On July 17, 2020 the CNR’s state that x-rays were done on the left shoulder and returned negative. There were no concussion symptoms.
19On July 20, 2020 state that left knee was bruised and that neck and shoulder pain continued. The applicant was prescribed Aleve and was given referrals for chiro and physio treatment.
20On July 24, 2020 Musco-skeletal symptoms were improving and tenderness in the left knee.
21On August 1 2020 Dr. Maharajh reported the applicant was still having pain in the left shoulder, neck and lower back. Aleve and x-rays of the LS spine and lower back were prescribed.
22On August 11, 2020 Dr. Maharajh reported that the applicants Musculoskeletal symptoms were unchanged and that knee x-ray had returned negative.
23On October 15, 2020 the applicant reported neck and pain to Dr. Mahrajh that his neck and back pain was being exacerbated by his night shifts. Advil was prescribed.
24On October 16, 2021 the applicant reported left knee, neck and lower back pain was intermittent since the accident.
25On December 16, 2021 Dr. maharajh would note that the applicant continued to suffer from intermittent pain as a result of the accident.
26Dr. Maharajh would continue to note the applicant reported pain in near monthly visitation during 2022.
27The applicant submits that the numerous visits to Dr. Maharajh with the same recurring complaints of neck, lower back and shoulder pain constitute chronic pain.
28The respondent submits that the applicant is not suffering from any physical injury that is outside of the MIG and that there is no evidence of injury beyond soft tissue type injuries. The respondent relies on the physical therapy notes in support of its position that the applicant is not suffering from chronic pain rather intermittent pain that was improving with physical therapy.
29The respondent also notes that in a examination conducted by Dr. Nikkhou that the applicant continues to work full time and is required to move, stand and lift during his work and that he has resumed participating in soccer.
30However, ongoing pain on its own is not enough to warrant removal from the MIG. What is required is ongoing pain with functional impairment. I do not have any evidence before me regarding any functional impairment of chronic pain. The applicant has returned to work and is active in recreational activities and appears to have similar or the same functionality they exhibited prior to the accident.
31Therefore, on a balance of probabilities the applicant has not shown that they are suffering from chronic pain with functional impairment as a result of the MVA. As such the applicant has not met their burden to prove that their injuries constitute removal from the MIG.
Is the treatment plan reasonable and necessary?
32To receive payment for an OCF-18 under sections 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.
33The applicant’s position that an OCF-18 from HydroHealth for a psychological assessment is necessary to understand more a about his psychological injuries as a result of the accident.
34The respondent’s position is that the OCF-18 is not reasonable or necessary. It cites the two assessments conducted by Dr. Nikkou dated June 2, 2022 and October 3, 2023. Dr. Nikkou’s position is that the applicant is not suffering from any PTSD symptoms.
35Given the prolonged history of complaints about PTSD by the applicant to his family doctor I find the applicant has shown that the treatment plan in question is reasonable and necessary. While the OCF-18 alone may be insufficient to warrant an assessment I believe the consistent appearance of PTSD symptoms noted by the applicant’s doctor as sufficient to meet the applicant burden. The goal of the treatment plan as specified in the OCF-18 is to return to activities of normal living. With regards to the proposed treatment I find that a standard psychological assessment meets the test of reasonableness.
36I find the applicant is entitled to the treatment plan it is reasonable and necessary.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
38My order as is follows:
i. I find the applicant should be removed from the MIG.
ii. The applicant is entitled to $2,460.00 for a psychological assessment, proposed by HydroHealth in a treatment plan/OCF-18 (“plan”) dated May 3, 2022.
iii. The applicant is entitled to interest on any overdue.
Released: April 8, 2025
__________________________
Kieffer Norton
Adjudicator