Licence Appeal Tribunal File Number: 22-010975/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:
Matthew Muccilli
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Leila Shimi, Paralegal Antonia Hristova, Counsel
For the Respondent: Alicia Edwards, Paralegal
HEARD: by way of written submissions
OVERVIEW
1Matthew Muccilli (“the Applicant”) was involved in an automobile accident on October 27, 2019 and sought benefits from Aviva General Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute.
3The Applicant disagrees with these decisions by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
4In response, the Respondent raised two preliminary issues to be addressed together with the substantive issues.
PRELIMINARY ISSUES
5The preliminary issues for this hearing are:
i. Is the Applicant precluded from applying to the Tribunal with respect to the issues for failing to submit an application for benefits within the times prescribed in section 32 of the Schedule?
ii. Is the Applicant barred from proceeding to a hearing with respect to the treatment and assessment plans (“plans”) in dispute because he never attended a properly scheduled insurer’s examination (“IE”)?
SUBSTANTIVE ISSUES
6The substantive issues in dispute for this hearing are:
i. Are the Applicant’s injuries predominantly a minor injury as described in section 3 of the Schedule, and subject to the MIG and the $3,500.00 funding limit for a minor injury?
ii. Is the Applicant entitled to medical benefits proposed by Myo Health Rehab and Wellness (“Myo”) as follows:
i. $840.20 for a physiotherapy plan, dated December 4, 2020;
ii. $3,112.00 for a chiropractic treatment plan, dated November 1, 2020;
iii. $2,452.71 for a psychological assessment plan, dated November 6, 2020; and
iv. $2,200.00 for an occupational therapy plan, dated January 25, 2021?
iii. Is the Respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
iv. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
7The Respondent’s preliminary issue regarding the Applicant’s application for benefits is dismissed.
8The Applicant attended at the IEs after the case conference but before this hearing. His attendance at IEs is no longer in dispute.
9The Applicant is not subject to the MIG and the $3,500.00 funding limit for a minor injury because he sustained a fractured tooth as a result of the accident.
10The treatment plans dated November 1, and December 4, 2020 were denied pursuant to section 38(5) of the Schedule and are not subject to review, pursuant to section 38(6).
11The psychological and occupational therapy assessment plans are not reasonable and necessary as a result of the accident.
12No interest and no award are payable.
Preliminary issue
13The Respondent raised a preliminary issue by way of motion prior to the start of this written hearing. It submits that the Applicant is not entitled to accident benefits because he failed to comply with section 32(1) of the Schedule because he never notified the Respondent of the accident within seven days, or as soon as practicable after. It submits that the Applicant has not provided a reasonable excuse for the delay. The Applicant, in response, submits that he was in recovery for the subject period; struggled with psychological issues resulting in social withdrawal and disassociation; and that he was not made award of the required paperwork during this time.
14In reply, the Respondent submits that the Applicant’s excuse is not reasonable because he never provided medical documents to support his excuse. It further submits that the Applicant’s OHIP summary demonstrates that he sought no medical attention by a physician until about 21 months after the accident. It further submits that the Applicant was aware of the need to submit an application for benefits within two weeks of the accident because it is discussed in a dental note of November 19, 2019.
15I dismiss this preliminary issue because the Respondent has engaged in case-splitting, making it unfair for the Applicant to properly respond to the preliminary issue.
16The Respondent was aware of the Applicant’s excuse, and it was incumbent upon it to make submissions on the excuse at first instance. The Applicant provided his excuse via email from his counsel (after business hours) on March 9, 2021. Therefore, the Respondent was aware of the excuse and ought to have made its submissions on whether it is reasonable, at first instance. The Respondent has deprived the Applicant of the opportunity to refute its position on whether he provided a reasonable excuse by providing the rationale in reply, causing an unfair hearing, and breaching the rules of procedural fairness. As a result, I dismiss the preliminary issue motion.
BACKGROUND
17The Applicant was the passenger of a vehicle which struck a utility pole on the side of an urban roadway. There are no records before me of him seeking any medical attention at the scene of the accident, or immediately thereafter.
18However, the records before me show that, about two weeks following the accident, on November 9, 2019, the Applicant met with Dr. G. Kaplan, dentist. At that visit, Dr. Kaplan observed that the Applicant fractured a tooth and chipped several other teeth and recommended that the fractured tooth be extracted as soon as possible. Despite the recommendation, the Applicant did not have the tooth extracted until February 25 or 26, 2021, more than a year after the accident.
19Records demonstrate that the Applicant started to attend at Myo a little over a year following the accident, on November 24, 202, due to neck, shoulder, and back pain.
20The Applicant claims that he sustained a right shoulder tear, chronic pain, psychological disorders, and a dental fracture as a result of the accident. To the Applicant, these are not injuries included in the minor injury definition and, as a result, he should not be subject to the MIG and the $3,500.00 funding limit for a minor injury.
21In response, the Respondent submits that the Applicant has not provided evidence of any functionally disabling chronic pain, a psychological injury, and is critical of the Applicant’s handling of his dental impairment. On the latter point, it highlighted that the tooth extraction occurred 15 months after the recommendation from his dentist, suggesting that it is not an accident-related injury.
ANALYSIS
22The Applicant bears the onus to demonstrate entitlement to the benefits claimed.
Minor Injury Guideline (“MIG”)
23The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
24The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
25For the following reasons, I find that the Applicant sustained a fractured tooth. This is an injury that is not included in the minor injury definition. Accordingly, he should not be subject to the MIG and the $3,500.00 funding limit for a minor injury.
A fractured tooth is not a minor injury
26I find sufficient evidence demonstrating that the Applicant sustained a fractured tooth as a result of the accident. A fractured tooth is not a soft-tissue injury thus, it is not included in the minor injury definition.
27The clinical notes and records (“CNRs”) from Dr. Kaplan are persuasive evidence of a non-minor injury as a result of the accident. While the CNRs are illegible in some areas, it remains clear and uncontested that the CNRs document a fractured tooth and refer to the accident. The Applicant met with Dr. Kaplan on November 9, 2019, the first time in over two years for issues related to a car accident two weeks ago. Upon assessment diagnosed him with a fractured tooth and recommended it be extracted. X-rays taken by Dr. Kaplan’s office that day also show a fractured tooth. This information in Dr. Kaplan’s CNRs, that is not contradicted by any other evidence, is sufficient for me to determine that the Applicant sustained a fractured tooth as a result of the accident.
28The timing of the tooth extraction does not upset the fact that the Applicant sustained a non-minor injury. Other than limiting his claim period to up to five years, there is nothing in the Schedule, nor in the MIG, which provides that the Applicant must treat his tooth fracture within a certain time. Rather, the practical application of the MIG is that the Applicant is subject to it and the funding limit until he can demonstrate that he sustained an injury that is not a minor injury. Here, the Applicant has provided uncontroverted evidence that he sustained a fractured tooth as a result of the accident. Thus, I find that he sustained a non-minor injury and is not subject to the MIG and the $3,500.00 funding limit for a minor injury. Accordingly, an assessment on whether the Applicant sustained other non-minor injuries is unnecessary.
29I note however, that the Applicant was unpunctual in delivering evidence of a tooth fracture – his dental records were not provided until no earlier than April 7, 2021. Some consequences flow from the Applicant’s unpunctual production of his dental records, which are addressed below.
30I find that the treatment and assessment plans dated November 1, and December 4, 2020 were refused pursuant to section 38(5) of the Schedule and the decision is not subject to review pursuant to section 38(6) of the Schedule.
31Section 38(5) provides that the Respondent may refuse to accept a plan that proposes goods and services outside of the MIG when an insured is entitled to goods and services within the MIG. Here, the Applicant submitted two standard treatment and assessment plans, instead of treatment confirmation forms. The Respondent refused to accept the treatment and assessment plans and, instead, advised the Applicant to submit a treatment confirmation form, pursuant to the MIG. The Respondent also advised that treatment pursuant to the MIG is pre-approved for up to $2,200.00 for the first plan.
32The Applicant presented with a predominantly minor injury and was initially subject to the MIG. The Applicant’s initial complaints were sprain and strain injuries to the neck, shoulders, and low back. He provided no compelling evidence of a pre-existing medical condition which would preclude his recovery if subject to the MIG. Further, at that time, he provided no evidence demonstrating that he sustained an injury that is not captured in the minor injury definition. It was incumbent on him to engage in treatment pursuant to the MIG and submit a treatment confirmation form instead of a treatment and assessment plan.
33The Applicant submitted an OCF-1, dated November 16, 2020. No injuries were listed in this document, despite a prompt for same. Thus, there is no evidence of a non-minor injury in this document.
34The OCF-3 by Dr. G. Charalambous, chiropractor, dated November 23, 2020, lists the following injuries, with the most significant being first: impacted teeth and other disorders of teeth and supporting structures; WAD 2; sprain and strain of the ribs and sternum; pain in thoracic and lumbar spine, spinal instability, other missed anxiety disorders, other sleep disorders, and post concessional syndrome. In addition, Dr. Charalambous completed the plans, dated November 1, and December 4, 2020. The injuries listed in those plans mirror the injuries outlined in the OCF-3. Dr. Charalambous is a chiropractor and is not qualified to diagnose dental and psychological impairments. Thus, any diagnosis of dental or psychological injuries holds no weight. Further, it is possible that impacted teeth and disorders of teeth and supporting structures are included in a minor injury as they are not fractures and may be sequalae of soft-tissue injuries. Accordingly, there is no evidence of a non-minor injury in this document.
35The treatment plan dated November 6, 2020, proposing a psychological assessment, is not evidence of an accident-related psychological injury. This plan was completed by Dr. J. Brunshaw, psychologist, and lists adjustment disorders, specific phobia, and mixed anxiety with depressive disorder as the Applicant’s injuries. This plan is insufficient evidence of a non-minor injury because plans themselves, absent any evidence like CNRs to support the plan, have long been found to hold no weight. There is no evidence indicating that the Applicant was diagnosed with a psychological injury as a result of the accident and I fail to see how Dr. Brunshaw came to such a conclusion as there are no CNRs indicating that she assessed the Applicant to form such a diagnosis. As a result, I find no evidence of a non-minor injury in this document. Further, beyond what has previously discussed, the Applicant has not provided any other evidence to support his claim that he sustained a psychological injury as a result of the accident.
36Likewise, the plan dated January 25, 2021, by occupational therapist S. Don, does not demonstrate that the Applicant sustained a non-minor injury. Occupational therapists are not qualified to diagnose injuries. Therefore, the plan holds no weight when determining whether the injuries listed therein it are anything other than a minor injury. Accordingly, I find no evidence of a non-minor injury in this document.
37The Applicant provided evidence of a non-minor injury no earlier than April 7, 2021. The CNRs from Dr. Kaplan are the first instance where evidence of a non-minor injury was provided to the Respondent. While I am not privy to when the documents were shared with the Respondent, I accept the Applicant’s submission that the CNRs were received on April 7, 2021. While I appreciate that the disability certificates and plans note impacted teeth, I find that an impacted tooth is different than a fractured tooth. I further find that notation of a dental issue by a chiropractor is insufficient for the Respondent to find that the Applicant sustained a non-minor injury because dentalcare is not within a chiropractor’s scope of practice.
38The date the Respondent received evidence of a non-minor injury is significant because the Applicant is not entitled to medical and rehabilitation benefits outside of the MIG, prior to providing evidence of a non-minor injury or a pre-existing injury which precludes the Applicant’s recovery if subject to the MIG. In this case, he claims no pre-existing injuries thus, his only avenue to receiving treatment outside of the MIG is to provide evidence of a non-minor injury. As noted above, that occurred no earlier than April 7, 2021.
The Respondents refusal to accept the plans dated November 1 and December 4, 2020 is not subject to review
39The Applicant submitted OCF-18s for treatment, instead of a Treatment Confirmation Form, as prescribed by 40(2) of the Schedule. I find that the Respondent rightfully refused to accept the treatment plans pursuant to section 38(5) and this decision is not subject to review pursuant to section 38(6) of the Schedule.
40The plans dated November 1, and December 4, 2020 pre-date April 7, 2021, when the Applicant provided evidence of a non-minor injury. Having presented with predominantly a minor injury, and absent any dental records demonstrating a fractured tooth, it was incumbent upon him to engage in treatment pursuant to the MIG and submit a treatment confirmation form instead of a treatment and assessment plan. However, he never submitted a treatment confirmation form during this period, nor received any treatment pursuant to the MIG.
The assessment plans are subject to reasonable and necessary test
41I find that the plans dated November 6, 2020 and January 25, 2021, for a psychological and occupational therapy assessment, respectively, are subject to the reasonable and necessary test. This is because the plans are captured under section 38(7) of the Schedule, and the Applicant is not subject to the MIG and the $3,500.00 funding limit.
42Section 38(7) provides that nothing in section 38(5) prevents an insured person, while receiving goods or services under the MIG, from submitting a plan applicable to a period other than the period for which the insured person receiving goods or services under the MIG.
43The aforementioned plans propose assessments for services outside of the MIG at a time when the Applicant was pre-approved for MIG treatment. This is because comprehensive psychological or in-home assessments are not services provided under the MIG, unlike the physical treatment proposed in the plans dated November 1, and December 4, 2020. Having found that these plans propose assessments for services outside of the MIG, it follows that the plans that are subject to review, and the reasonable and necessary test.
The psychological assessment plan is not reasonable and necessary
44I find that the Applicant has not demonstrated that the psychological and occupational therapy assessments are reasonable and necessary.
45The Applicant has provided no evidence of a psychological injury outside of the treatment plan. There is no evidence within the family physician or hospital records before me, and the Applicant has not directed me to any other evidence. The plan itself is insufficient evidence, as discussed previously, and psychological diagnoses or symptoms hold no weight when made by persons unqualified to do so.
46Considering the above, I accept the findings of clinical psychologist, N. Azizli (“Azizli”), in the IE report, issued October 6, 2023. Azizli assessed the Applicant via interview, conducted psychometric testing, and reviewed the available CNRs. Azizli noted that the Applicant was not interested in pursuing psychological treatment and that he scored below average for depression, anxiety and somatization on psychometric scales. Azizli noted that the Applicant likely presented with Adjustment Disorder with Mixed Anxiety and Depressed Mood immediately following the accident, but it improved spontaneously without intervention. Azizli also considered the Applicant’s psychological condition to be normal sequelae associated with the accident and minor in nature. Azizli found that the Applicant did not present with any significant psychological impairment or diagnosis contributing to any functional limitations, and concluded that a psychological assessment was not reasonable and necessary.
47Having found no compelling evidence demonstrating that a psychological assessment is reasonable and necessary as a result of the accident, it follows that I find the psychological assessment plan to be not reasonable and necessary as a result of the accident.
The occupational therapy assessment plan is not reasonable and necessary
48I find that the Applicant has not demonstrated that the occupational therapy treatment plan is reasonable and necessary as a result of the accident.
49The Applicant tendered no submissions or evidence with respect to the occupational therapy plan. Considering that the Applicant bears the onus to demonstrate entitlement to the benefits claimed, it follows that he has not met his onus and is not entitled to the occupational therapy treatment plan.
Interest
50Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
Award
51The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
52The Applicant suggests that the Respondent’s decision to rely on the IE assessors was unreasonable in light of his medical records, and that this behaviour warrants an award. Though, he did not specify what medical records he was referring to. The Respondent submits that there is no evidence within the Applicant’s submissions that warrants an award.
53I find no award payable because no benefits were unreasonably withheld. The Applicant never mentioned any specific incidence of unnecessary withholding by the Respondent. At most, there was a delay in the Applicant seeking treatment, but it can be attributed to the Applicant and his service providers. First, the Applicant took nearly a year to report the accident to the Respondent and to obtain treatment for his accident-related injuries. As noted above, the Applicant and his service provider never submitted a treatment confirmation form that would permit him to pre-approved treatment, despite being asked to do so. At that time, the Applicant presented with a predominantly minor injury, and it was incumbent upon him to either provide evidence of a non-minor injury to commence treatment within the MIG – he did neither until no earlier than April 7, 2021. Therefore, I do not attribute this delay on the Respondent.
54Considering my findings, I see no instance where reasonable and necessary goods and services were unreasonably delayed through the imprudent, stubborn, inflexible, or immoderate. Accordingly, I find no award payable.
CONCLUSION AND ORDER
55The preliminary issue is dismissed.
56The Applicant sustained a fractured tooth as a result of the accident. As a result he is not subject to the MIG and the $3,500.00 funding limit for a minor injury.
57The treatment plans dated November 1, and December 4, 2020 were denied pursuant to section 38(5) of the Schedule and are not subject to review, pursuant to section 38(6).
58The psychological and occupational therapy assessment plans are not reasonable and necessary as a result of the accident.
59No interest and no award is payable.
Released: January 20, 2025
Brian Norris
Adjudicator