Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-001964/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:
Samuel Juma
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Roland Kuehn, Counsel
For the Respondent: Jessica Telfer, Counsel
HEARD: By way of written submissions
OVERVIEW
1Samuel Juma, the applicant, was involved in an automobile accident on September 27, 2022, 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, Economical Insurance, 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? At the case conference, the parties agreed that the MIG limit has not been exhausted and the respondent submits that $2,085.00 is remaining.
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 3, 2022, ongoing?
iii. Is the respondent entitled to a repayment of $6,800.00 relating to its payment of an IRB for the period of October 3, 2022, to January 17, 2023?
iv. Is the applicant entitled to $3,366.30 for psychological services, proposed by Mark Petter in a treatment plan/OCF-18 (“plan”) dated October 27, 2022?
v. Is the applicant entitled to $1,658.39 for occupational therapy services (attendant care assessment), proposed by Pursuit Health Management Inc. in a plan dated November 17, 2022?
vi. Is the applicant entitled to $1,815.57 for physiotherapy services, proposed by Rehability Occupational Therapy Inc. in a plan dated November 8, 2022?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3In a letter dated May 31, 2024, the respondent advised that it was withdrawing issue iii above relating to its entitlement to a repayment of $6,800.00.
RESULT
4The applicant has demonstrated that removal from the MIG is warranted on the basis that he sustained a concussion.
5The applicant is not entitled to an IRB.
6The applicant is not entitled to the treatment plans for psychological services or an attendant care assessment.
7The applicant is entitled to the treatment plan for physiotherapy services.
8Interest is payable on any overdue payment of benefits.
ANALYSIS
Applicability of the Minor Injury Guideline
9Section 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.”
10An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that a psychological condition may warrant removal from the MIG. Further, jurisprudence has established that concussions are not part of the definition of minor injury. In all cases, the burden of proof lies with the applicant.
11The applicant submits that he sustained a concussion and psychological injuries because of the accident.
The applicant sustained a concussion as a result of the accident
12I find that the applicant has demonstrated on a balance of probabilities that he sustained a concussion because of the accident.
13The applicant reported the following injuries to physicians because of the accident:
i. He attended at the emergency department on September 27, 2022, reporting neck pain. There was no loss of consciousness, other pain or injuries reported. Dr. Taylor Johnson diagnosed the applicant with whiplash type injuries, and he was given Advil and Tylenol.
ii. He attended the hospital on October 8, 2022, and reported pain to his neck, chest, lower back, headaches, and nausea. X-rays of the chest and lumbar spine were unremarkable. Dr. David Murphy diagnosed him with a mild concussion, prescribed Naproxen and referred him for physiotherapy.
iii. On October 17, 2022, the applicant attended at the hospital reporting headaches, pain behind his eye, neck pain, chest pain, and some lower back pain. Dr. Amit Shah diagnosed him with “possible concussion,” “perhaps some persisting concussion symptoms,” and soft tissue injuries. Dr. Shah advised the applicant that his problems were largely soft tissue and should be able to be managed with physiotherapy and massage.
14I find that the applicant was clearly diagnosed with a concussion by Dr. Murphy on October 8, 2022. Having found that the applicant was diagnosed with a concussion, I find that his injuries fall outside the definition of minor and he is not subject to the MIG treatment limits.
15The applicant also raised the argument that he suffered from psychological injuries that fall outside the MIG. Due to my conclusion about his concussion, I do not find it necessary to address this argument.
Income replacement benefits
16To 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.
17I find that the applicant is not entitled to an IRB as he has not demonstrated on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his employment.
18The applicant submits that he is entitled to an IRB. The respondent submits that the applicant is not entitled to an IRB because he made a material misrepresentation pursuant to s. 31(1)(b) of the Schedule. The respondent further submits that the applicant does not continue to suffer a substantial inability to perform the essential tasks of his employment because of any accident-related injuries.
19The applicant was in receipt of IRBs from October 3, 2022, until February 7, 2023.
20In support of his continued entitlement to an IRB, the applicant filed an OCF-3 prepared by Dr. Anthony Rocha, chiropractor, on October 21, 2022. Dr. Rocha indicated on the form that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks after the accident.
21I find that the applicant did not file any corroborating medical information supporting his continued claim for an IRB. The applicant did not identify the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them. Further, he did file any income, employment, or tax documentation to indicate that he has remained off work following the termination of his IRBs and that he has not earned an income.
22For these reasons, I find that the applicant has not established on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his employment because of the accident. As the applicant has not met his onus, I do not find it necessary to address the respondent’s arguments on the issue of misrepresentation.
23To receive payment for a treatment and assessment plan under s. 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.
The applicant is not entitled to the treatment plan for psychological services
24I find that the applicant has not demonstrated on a balance of probabilities that the plan for psychological services is reasonable and necessary.
25The plan dated October 27, 2022 for psychological services was proposed by Dr. Mark Petter, psychologist. The plan proposes an assessment, twelve sessions of therapy, and two sessions of “documentation, support activity.” The goals of the plan are to eliminate anxiety, depression, and trauma symptoms, and to return to pre-accident functioning.
26The applicant relies on Dr. Petter’s one hour screening interview on October 25, 2022, where the applicant reported symptoms of anxiety, low mood, and traumatic stress following the accident. This was outlined in the treatment plan for psychological services that is at issue. The applicant submits that he incurred psychological treatment with Dr. Petter, and refers me to clinical notes from the sessions, where Dr. Petter identifies several psychological difficulties the applicant was experiencing, including driving anxiety, replaying of the accident, self-critical thoughts and problems with cognition. The applicant did not submit Dr. Petter’s clinical notes and records into evidence. The applicant also pointed out that he reported anxiety because of the accident to his physiotherapist, Kiran Chouhan, which was recorded in the plan for physiotherapy services that is at issue. The applicant relies on his reports to Dr. Petter and Mr. Chouhan to support the proposed treatment.
27The respondent submits that no psychological symptoms are noted in any of the clinical notes and records filed by the applicant.
28I find that the applicant has not provided evidence of having been diagnosed with a psychological impairment because of the accident. Further, I find that the applicant has not made submissions with respect to why the plan for psychological services is reasonable and necessary, other than referring to the recommendations made in the proposed plans.
29Treatment plans on their own are not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the plans. In this case, the applicant does not direct me to any evidence in support of the treatment plan, or whether he is benefitting from the treatment. In my view, the evidence that is before me is not sufficient to establish on a balance of probabilities that the treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan for an attendant care assessment
30The applicant has not demonstrated on a balance of probabilities that the plan for an attendant care assessment is reasonable and necessary.
31The plan dated November 17, 2022 for an attendant care assessment was proposed by Vicki Shale, occupational therapist. The plan proposes “planning, service,” completion of a Form 1, assessment (examination) full body, provider travel time and mileage to treatment, and “documentation, support activity.” The goals of the plan are to assess supports required to assist the applicant at home, to return to activities of normal living, and to return to modified work activities.
32I find that the applicant has not made submissions with respect to why the plan for an attendant care assessment is reasonable and necessary, other than by generally referring to the recommendations made in the proposed plans, and to an OCF-3. The OCF-3 was completed on October 21, 2022 by Dr. Anthony Rocha, chiropractor. It indicates that the applicant suffers a complete inability to carry on a normal life as he is unable to perform basic tasks that allow him to care for himself such as cook, get dressed, clean himself and physical activity.
33The respondent submits that the clinical notes and records support that the applicant sustained soft tissue injuries to his back and neck following the accident, and that he did not sustain any fractures or serious physical or cognitive impairments.
34I agree with the respondent and find that despite being diagnosed with a mild concussion on October 8, 2022, after an examination of the applicant on October 17, 2022, Dr. Shah concluded that the applicant’s problems are largely soft tissue and should be able to be managed with physiotherapy and massage.
35I find that there are no recommendations for an attendant care assessment by the physicians who treated the applicant after the accident. Further, I find that there is insufficient evidence in the clinical notes and records of the treating physicians that a condition exists that would warrant further investigation by way of an attendant care assessment.
36For these reasons, I find that the applicant has not demonstrated that the plan for an attendant care assessment is reasonable and necessary.
The applicant is entitled to the treatment plan for physiotherapy services
37The applicant has demonstrated on a balance of probabilities that the treatment plan for physiotherapy services is reasonable and necessary.
38The plan dated November 8, 2022 for physiotherapy services was proposed by Mr. Chouhan. The plan proposes a physiotherapy assessment as well as “goods” including electric moist heating pad, tens unit, ear filters for concussion management and noise sensitivity, and icecap for headaches for concussion management. The goals of the plan are pain reduction, increased range of motion, increase in strength, a detailed physiotherapy assessment to determine residual impairments as a result of the accident and the impact on the applicant’s function/ability to engage in educational, leisure and vocational pursuits, to return to activities of normal living, to return to modified work activities, to return to pre-accident work activities, and to learn self management strategies for concussion symptoms to increase participation in activities of daily living.
39The applicant refers to a physiotherapy assessment completed by Mr. Chouhan that was encompassed in his proposed plan. He indicated that the applicant presents with a stiff and guarded posture, decreased cervical and thoracic range of motion and pain with all upper extremity movements. He further indicates that the applicant is suffering from extensive concussion symptoms such as headaches, tinnitus, poor sleep, light sensitivity, noise sensitivity, fatigue and difficulty concentrating, which require intensive and consistent physiotherapy intervention to facilitate a timely and successful return to activities of daily living.
40The respondent submits that, based on the extremely limited medical evidence before the Tribunal, the applicant has not provided any evidence that this proposed plan is reasonable and necessary and that the proposed services would provide any therapeutic or restorative impact.
41I find that in the month before the plan was proposed, Dr. Murphy referred the applicant for physiotherapy and Dr. Shah recommended it to manage his injuries. Further, I find that this is the first proposed plan for physiotherapy treatment and, as such, the applicant is not able to speak to any benefit that he has received from prior treatment.
42In these circumstances, I find that the applicant has demonstrated on a balance of probabilities that the plan is reasonable and necessary.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
44The applicant is removed from the MIG on the basis that he sustained a concussion.
45The applicant is not entitled to an IRB.
46The applicant is not entitled to the treatment plans for psychological services or an attendant care assessment.
47The applicant is entitled to the treatment plan for physiotherapy services.
48Interest is payable on any overdue benefits.
Released: January 6, 2025
Laura Goulet Adjudicator