Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-001106/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:
Mark Khnano
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Dominique Setton
APPEARANCES:
For the Applicant:
Maka Metreveli, Paralegal
For the Respondent:
Michael Courneyea, Counsel
HEARD:
In Writing
OVERVIEW
1Mark Khnano, the applicant, was involved in an automobile accident on November 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, Insurer, 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? The parries agree the MIG limits have not been exhausted and the balance remaining is $226.74.
ii. Is the applicant entitled to $3, 1342.02 for physiotherapy services proposed by 101 Physiotherapy in a treatment plan dated November 23, 2020?
iii. Is the applicant entitled to $2,791.77 for physiotherapy services proposed by 101 Physiotherapy in a treatment plan dated March 26, 2021?
iv. Is the applicant entitled to $2,757.53 for physiotherapy services proposed by 101 Physiotherapy in a treatment plan dated June 15, 2021?
v. Is the applicant entitled to $2,712.33 for physiotherapy services proposed by 101 Physiotherapy in a treatment plan dated November 30, 2021?
vi. Is the applicant entitled to $2,549.52 for physiotherapy services proposed by 101 Physiotherapy in a treatment plan dated November 30, 2021?
vii. Is the applicant entitled to $2,460 for psychological assessment proposed by 101 Physiotherapy in a treatment plan dated November 26, 2020?
viii. Is the applicant entitled to $2,220.00 for psychological services proposed by 101 Physiotherapy in a treatment plan dated March 29, 2021?
ix. Is the applicant entitled to $2,460 for chronic pain assessment proposed by 101 Physiotherapy in a treatment plan dated July 5, 2021?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant's injuries are predominantly minor, and the applicant is subject to the MIG.
4As the applicant is subject to the MIG, I do not need to consider whether the treatment plans proposed are reasonable and necessary. The parties agreed that the MIG was exhausted at the date of the case conference.
5The applicant is not entitled to interest on any overdue benefits as no benefits are due.
ANALYSIS
Are the applicant's injuries predominantly minor?
6I find the applicant has failed to meet his onus, as he has failed to show that he should be removed from the MIG.
7Section 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) defines a "minor injury" as "one or more sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury".
8An insured can 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 condition combined with compelling medical evidence stating that 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.
Are the applicant's injuries predominantly minor?
9I find the applicant has failed to meet his onus, because he has failed to show that he should be removed from the MIG.
10The applicant relied on his family doctor's clinical notes and records, a Psychological Assessment by Dr. P.H. Wexler, as well as a Chronic Pain assessment by Grigory Carmy, Chiropractor, of July 16, 2021. The applicant submits that he visited his family doctor on November 13, 2020, the day after the accident and complained about neck, shoulder pain and headaches, for which his doctor recommended Tylenol. A few days later on December 16, 2020, he returned complaining of pain to his left leg, neck, and left knee, and for which he was referred for a x-rays, Tylenol, and physiotherapy. On the next day, he returned complaining of back pain, and he was referred for an x-ray of the lumbar spine. The x-rays revealed no fractures or abnormalities, and showed neck, knee leg, to be normal. In a follow up visit, of January 11, 2021, he was recommended to continue physiotherapy and Tylenol.
11The results of the x-ray of the applicant's lumbar spine revealed no conditions where the spine slips out of place, fractures, or bone lesions. The x-ray showed some possible subtle conditions that may be related to a previous injury and would best be examined by an MRI which the applicant's family doctor referred him for.
12To be removed from the MIG under s. 18(2) of the Schedule, the applicant must show a pre-existing condition, documented before the accident, combined with compelling evidence that the condition will preclude recovery from his minor injuries if held within the MIG. I do not find that the presence of a subtle, possible, previous injury is what is required by the definition. This x-ray seems to suggest a previous condition, but there is no compelling medical evidence from the applicant's doctor stating that the condition precludes recovery if kept within the confines of the MIG.
13The MRI of October 11, 2022, nearly two years after the motor vehicle accident in question, showed a small right protrusion without any further information. The doctor's notes are not legible, but only Tylenol continues to be recommended on an over-the-counter basis, with no other medical evidence, and physiotherapy appears to be recommended.
14This MRI showing a small right protrusion of the disc does not show evidence of a clearly documented pre-existing condition with compelling medical evidence stating that the applicant cannot recover if kept within the MIG.
15On May 30, 2023, Dr. Benjamin continues the recommendation for physiotherapy and Naproxen. The recommendations of the applicant's family doctor do not suggest or refer to any clearly documented pre-existing condition and there is no compelling medical evidence that the applicant cannot recover if kept in the MIG.
16The doctor's recommendation to continue physiotherapy is not unusual and there is no clearly documented pre-existing medical condition with compelling medical evidence provided.
Chronic Pain with Functional Impairment
17The applicant seems to be submitting that the applicant should be removed from the MIG due to chronic pain.
18The applicant attended a physical examination with Dr. Charanjit Sandhu, May 27, 2021, that was requested by the respondent. The report relied on a comprehensive list of other assessments and medical documents contained in the document list.
19With regard to his pre-accident function, the applicant assisted with cooking and cleaning activities in his home, where he lives with his parents and siblings. He was independent with his daily living activities.
20The applicant had no history of chronic pain.
21The applicant had no headaches, at the time, and had no nausea, vomiting, or history of seizure. He reported no neck pain, or no on-going shoulder pain, or mid back pain. What he complained of was intermittent low back pain, which he rated as a 3/10 on a scale of ten. He reported no other pain.
22After the accident, he remained independent in his activities of daily living, although he stated continued to assist with housekeeping and cooking activities.
23The doctor concluded that after examination, assessment and reassessment, the applicant's injuries fall within the scope of the MIG.
24The applicant has failed to provide evidence that any pain he has is chronic pain, such that it causes a physical impairment that would justify removal from the MIG.
25The evidence provided shows that the applicant continues in his daily life as he did prior to the accident.
26I find on a balance of probabilities the applicant has not established that he has chronic pain with functional impairment that warrants removal from the MIG.
A Psychological Condition
27The tribunal has determined that a psychological condition may warrant removal from the MIG, however as above, the burden of proof lies with the applicant.
28The applicant appears to be submitting that he suffers from a psychological condition. He has submitted a Psychological Assessment Report from Dr. P.H. Wexler, a psychologist dated February 23, 2021. In this assessment the assessor concludes that the applicant suffers from Persistent Somatic Symptom Disorder.
29The respondent submits that the applicant has not made any complaints to his family doctor about any psychological condition, and that the report should be given little weight.
30I have reviewed the assessment of the report of Dr. P.H. Wexler. This report does not refer to any medical x-rays or documents from the applicant's family doctor. There is no mention to the family doctor of any psychological difficulties, and no referral to a psychologist by the family doctor.
31The doctor relies solely on the responses of the applicant with no reference to any other medical documents.
32I also note that in the examiner's assessment by the respondent with Dr. Charanjit Sandhu, of May 27, 2021, the applicant told the doctor that he was not suffering from "depression, nightmares, flashbacks or panic attacks." This is simply a few months later, and it contradicts what the applicant told the psychologist. For those reasons, I agree with the respondent, and I give the psychological assessment little weight.
33I find that on balance the applicant has not shown that he suffers from a psychological condition that warrants removal from the MIG.
34As the injuries fall within the MIG, I do not need to consider if the treatment plans proposed are reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there is no benefit payable, no interest is due.
ORDER
36I find:
i. The applicant's injuries are predominantly minor and within the MIG.
ii. As the applicant's injuries are within the MIG, I do not need to consider if the treatment plans are reasonable and necessary.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: April 11, 2025
Dominique Setton
Adjudicator