Licence Appeal Tribunal File Number: 23-008338/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:
Alexandre Mayer
Applicant
and
Belair
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Miryam Gorelashvili, Counsel
For the Respondent: Ada Lika, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Alexandre Mayer, the applicant, was involved in an automobile accident on July 18, 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, Belair, 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 (“MIG”) limit?
ii. Is the applicant entitled to $1,553.60 for chiropractic services, proposed by Kent Chiro in a treatment plan/OCF-18 (“treatment plan”) dated July 18, 2022?
iii. Is the applicant entitled to $8,906.96 for social rehabilitation counselling, proposed by Vitality Rehabilitation Group in a treatment plan dated April 6, 2023?
iv. Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Capital Region Psychological Services in a treatment plan dated February 1, 2023?
v. Is the applicant entitled to $1,108.14 for an ergonomic assessment, proposed by Vitality Rehabilitation Group in a treatment plan dated March 28, 2023?
vi. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Vitality Rehabilitation Group in a treatment plan dated March 21, 2023?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG. As a result, it is not necessary for me to consider the treatment plans that are in dispute.
4As there are no benefits owed, there is no entitlement to interest.
5The application is dismissed.
ANALYSIS
a) Chronic Pain
6I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain because of the accident such that he is removed from the MIG on this basis.
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 of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
8An insured 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 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.
9To date, the remaining balance for the applicant’s medical and rehabilitation benefits is $1,515.87.
10The applicant relies on the CNRs of his family doctor, Dr. Stefan de Laplante, and several OCF-18s for treatment and assessments from different medical professionals, which are the ones in dispute. Each of these OCF-18s was denied by the respondent insurer.
11The respondent relies on a MIG paper review report by the s. 44 assessor Dr. Pankaj Bansal, G.P., dated April 28, 2023. The respondent submits that the applicant should remain in the MIG because his physical injuries are soft tissue injuries and minor in nature.
12I find that the applicant has not proved on a balance of probabilities that he suffers from a chronic impairment that would remove him from the MIG.
13The applicant submits that the CNRs of Dr. de Laplante state that the applicant reports pain in his left knee, left ribs, back, and right shoulder, as well as a stiff neck and headaches, which had already have improved. Dr. de Laplante opined that the shoulder and neck symptoms were likely due to a whiplash injury (WAD II), and the knee pain was due to a muscle strain with no neurological symptoms. Dr. de Laplante did not prescribe medication at this time but recommended physiotherapy.
14On July 28, 2020, the applicant attended Dr. de Laplante’s office in-person and re-iterated his previous complaints. As a result of this visit, Dr. de Laplante:
i. diagnosed the applicant with WAD II and soft tissue injuries.
ii. recommended a knee brace, imaging of the applicant’s cervical spine and knee, as well as physiotherapy.
iii. noted that the applicant had full range of motion; and,
iv. specifically noted that the applicant did not present with any concussive symptoms and no medications were prescribed at that time.
15On December 14, 2020, the applicant called Dr. de Laplante and reported grief due to the unfortunate loss of his father in or around November 2020. His grief was associated with anxiety which was related to the transfer of his father’s company to himself.
16Approximately a year later on October 26, 2021, the applicant reported ongoing accident-related back issues, and indicated that he had resumed physiotherapy which was helping at that time. Dr. de Laplante again did not conduct a physical examination of the applicant. No further recommendation of treatment was mentioned.
17Further, the applicant suffered a fall at his cottage on or about September 2022, which resulted in significant injuries, including multiple rib fractures requiring a chest tube insertion, left hemothorax, left hip hematoma, left groin hematoma, buttock hematoma, left hip pain, back pain, and left shoulder pain, for which the applicant was admitted to the Ottawa Hospital Trauma Centre for a number of days. At the time of discharge, he was prescribed the following medication: Dilaudid, Tylenol, Celebrex, and Zofran. This is the same medication that Dr. de Laplante subsequently prescribed for accident-related injuries.
18I find that there are large gaps in the applicant’s visits to his doctor, which indicate that the applicant was inconsistent with reporting his symptoms, and if the symptoms were bothering him, he did not see his family doctor about his limitations. Further, I find that there is no proof from the applicant that his physical injuries caused by the accident were more than minor. The applicant fell on or about September 2022, and Dr. de Laplante didn’t diagnose the applicant with chronic pain until January 19, 2023, a few months after the fall.
19Even if I were to accept the applicant’s evidence of Dr. Hedva Chiu and Dr. Usha Rita Buenger of the Ottawa Hospital as a chronic pain diagnosis, I find the evidence does not support a finding that he has accident-related chronic pain. As a result, the evidence does not suggest that either the fall or the chronic pain diagnosis are related to the car accident.
20For these reasons, I find on a balance of probabilities that the applicant is not removed from the MIG based on chronic pain.
b) Psychological impairment
21I find that the applicant has not proved on a balance of probabilities that he suffers from a psychological injury that would remove him from the MIG.
22The applicant submits that he has sustained a psychological injury because of the accident. The applicant relies on the CNRs of Dr. de Laplante, specifically his entry of January 30, 2024, and April 10, 2024, where the doctor diagnosed him with major depressive disorder. He also relies on the above mentioned, disputed OCF-18s for a psychological assessment and for social rehabilitation counselling.
23The respondent submits that the applicant has not met his onus to prove that his injuries are not predominately minor and that there is no psychological impairment that the applicant can be treated within the confines of the MIG. The respondent relies on the s. 44 IE report of Dr. Chris Cooper, psychologist, dated October 17, 2022.
24The respondent submits that Dr. Cooper opined that the applicant did not meet the DSM-5 criteria for a psychological disorder because of the accident. Also, Dr. Cooper pointed out that the services contemplated in the treatment plan did not pertain to psychological factors.
25I place little weight on the OCF-18 by Dr. David Duong for a physiological assessment because it is not supported by contemporaneous medical evidence. I assign more weight to the IE report because Dr. Cooper reviewed the applicant’s medical records and conducted a 1 ½ hour examination, which included an interview and psychometric testing. Dr. Cooper opined that the applicant had no indication of psychological impairment or need for treatment.
26Additionally, Dr. de Laplante specifically opined on December 14, 2020, that no criteria for MDE (major depressive episode) or GAD (generalized anxiety disorder) were met. Also, Dr. de LaPlante’s CNRs for January 30, 2024, and his letter of April 10, 2024, diagnosed the applicant with major depressive disorder. I find this diagnosis was almost four years after the accident during this time. During that time, the applicant fell at his cottage on or about September 2022, where he was hospitalized for several days. The applicant was traumatized by this fall, and he developed physical and psychological injuries. There is no indication that the psychological diagnosis flows from the car accident at issue. Even if I were to give the respondent’s IE reports little weight, the onus remains on the applicant. The applicant has not met his onus.
27For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he sustained a psychological injury that would remove him from the MIG.
28As the applicant is found to be in the MIG, there is no need for me to analyse the treatment plans and assessments that are in dispute.
Interest
29As there are no benefits owing, the applicant is not entitled to interest.
Order
30The applicant has been found to be in the MIG and is not entitled to any of the plans in dispute.
31No interest is payable.
32The application is dismissed.
Released: April 30, 2025
Roderick Walker
Adjudicator