Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-004818/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:
Neil Crawford
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Georgina Blanas
APPEARANCES:
For the Applicant:
Todd Reybroek, Counsel
For the Respondent:
Thomas Petrella, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Neil Crawford, the applicant, was involved in an automobile accident on August 28, 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, Belair Insurance Company Inc., 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 $1,891.29 for physiotherapy services, proposed by Ketankumar Trivedi in a treatment plan/OCF-18 (“plan”) dated March 15, 2023?
iii. Is the Applicant entitled to $1,841.41 for physiotherapy services, proposed by Ketankumar Trivedi in a plan dated November 22, 2023?
iv. Is the Applicant entitled to interest on any overdue payments of benefits?
RESULT
3The Applicant’s injuries are not predominantly minor and are not subject to the MIG.
4The Applicant is entitled to $1,891.29 for physiotherapy services proposed in the March 15, 2023, treatment plan.
5The Applicant is entitled to $1,841.41 for physiotherapy services proposed in the November 22, 2023, treatment plan.
6Interest is payable in accordance with s. 51 of the Schedule.
ANALYSIS
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?
7I find that the Applicant’s injuries are not predominantly minor and the MIG does not apply.
8Section 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, confusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such and injury.”
9An 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.
10The Applicant disputes the applicability of the MIG. He submits that he should be removed on the basis of a pre-existing condition. Specifically, he submits that a documented and recent workplace injury to his neck and upper back which required treatment until April 2022, prevented him from achieving maximum recovery if treatment were limited to the $3,500.00 MIG limit. The Applicant relies on family physician records, physiotherapy records, imaging, and a Minor Injury treatment discharge report OCF-24 dated January 4, 2023.
11The Respondent maintains that the Applicant sustained only uncomplicated soft tissue injuries that his pre-existing condition had resolved prior to the accident and that no physician has opined that the applicant could not recover within the MIG.
12The Applicant submits that he had a recent and documented workplace injury involving his neck and upper back, as noted in the clinical notes and records by his family physician, Dr. Donald Baumander dated January 29, 2020, and February 4, 2021. Dr. Baumander’s CNRs confirm a work related neck injury at the C6-7 level beginning January 29, 2020, with continued symptoms into 2021, including upper back pain and radiating neurological complaints. On January 29, 2020, and on February 4, 2021, Dr. Baumander recommended physiotherapy and massage therapy to treat the Applicant’s work related neck and upper back injury, including cervical pain and radiating neurological symptoms. The Applicant’s Manulife extended health records confirm that treatment for this condition continued until April 2022, four months prior to the August 28, 2022, motor vehicle accident. The Applicant submits that this short time frame demonstrates that his condition had not fully resolved and rendered his musculoskeletal system vulnerable at the time of the accident.
13The Applicant submits that following the accident he experiences an exacerbation of neck and upper back pain, developing ongoing headaches, and was only able to return to work on modified duties. Imaging of the cervical spine dated October 25, 2022, noted mild to moderate degenerative disc disease and neuroforaminal stenosis. On January 4, 2023, his treating physiotherapist, Ketankumar Trivedi, completed an OCF-24 Minor Injury Treatment Discharge Report, stating that the Applicant had not achieved maximum recovery within the MIG and required further treatment.
14The Applicant submits that the OCF-24 is contemporaneous, as it was completed during the treatment period, demonstrating removal from MIG.
15The Respondent submits that the Applicant sustained only soft tissue strain injuries as a result of the accident, which fall with the MIG. The Respondent disputes that the Applicant’s pre-existing workplace injury had resolved prior to the accident that the Applicant had returned to full work duties. The Respondent refers to the insurer examination conducted by Dr. Sohail Sunner, General Practitioner/Family Physician on April 18, 2024, with a report dated May 2, 2024, that opined that the Applicant sustained a cervical sprain/strain demonstrated full range of motion on examination, and did not exhibit ongoing impairment. Dr. Sunner concluded that the Applicant’s prior workplace injury had healed and would not prevent maximum recovery under MIG.
16I find that the Applicant has met the two part test in section 18(2). First, I find that a workplace injury that is recently documented. The Applicant required treatment for neck restrictions and upper back conditions until April 2022. The accident occurred on August 28, 2022, a period of four months later. The continuity of treatment into 2022 supports the Applicant’s submission that the condition had not fully resolved. Based on the medical evidence of Dr. Baumander and the Applicant’s Manulife Summary (used treatment services), I conclude that the worker has a documented pre-existing condition to his neck and upper back.
17I also find that the second part is met. Post accident the Applicant experienced persistent symptoms, including neck pain, upper back pain, neurological complaints, headaches, and functional limitations requiring modified duties as of December 12, 2022, as noted in Dr. Baumander’s CNRs. The imaging confirm degenerative changes, adding complexity to recovery.
18The OCF-24 completed by physiotherapist Trivedi dated January 4, 2024, provide document that the Applicant had not achieved maximum recovery within the MIG, and was working modified duties and required further treatment.
19In reaching my conclusion, I have considered the respondent’s submission and evidence. I placed less weight on Dr. Sunner’s opinion regarding MIG applicability as his assessment occurred approximately 20 months post accident and focused on musculoskeletal findings, and did not address the pre-existing condition.
20In sum the Applicant has a documented pre-existing condition, and this is compelling medical evidence in a form of an OCF-24 completed during the active treatment period confirming that recovery was not achieved within the MIG. Therefore, I am satisfied that the Applicant has established that he should be removed from the MIG based on his pre-existing injuries.
Is the Applicant entitled to $1,891.29 for physiotherapy services, proposed by Ketankumar Trivedi in a treatment plan/OCF-18 (“plan”) dated March 15, 2023?
21I find the applicant is entitled to payment of $1,891.29 for the physiotherapy treatment plan dated March 15, 2023.
22The Applicant submits that this treatment plan was reasonable and necessary to reduce pain and prevent progression of headaches. The plan was denied on the basis of MIG.
23The Respondent submits that the plan is not payable because it exceeds the MIG limits and is not supported by the insurer examination by Dr. Sunner.
24Having found that the Applicant is not subject to the MIG, the Respondent’s principal basis for denying this treatment plan does not apply. The March 15, 2023, treatment plan was proposed by the Applicant’s treating physiotherapist, who had ongoing, direct involvement in the Applicant’s care and was familiar with the Applicant’s response to treatment. The proposed goals of the treatment plan included reducing neck and upper back pain, decreasing headache frequency and intensity, improving range of motion, and restoring functional tolerance for work and daily activities.
25The CNRs of Finchgate Physiotherapy demonstrate that prior physiotherapy resulted in symptomatic relief and functional improving supporting the conclusion that continued treatment provided further therapeutic benefit. The proposed treatment plan was targeted to the Applicant’s impairments was reasonable and necessary. The need for ongoing physiotherapy is not supported only by the treating provider’s OCF-18. The Applicant’s family physician Dr. Baumander, also contemporaneously recommended and endorsed continued physiotherapy in the months following the accident. On September 20, 2022, Dr. Baumander assessed ongoing neck and upper back pain and included a plan to continue physio. Dr. Baumander also documented ongoing pain and included physio in the treatment plan on October 25, 2022, and December 12, 2022, corroborating that physiotherapy remained clinically indicated.
26Having considered the Respondent’s insurer examination report, while Dr. Sunner noted that the Applicant had benefited from treatment and demonstrated improvement, this opinion is based on an assessment conducted on April 18, 2024, well after the accident and after the treatment in dispute had been completed. As a result, placing less weight in determining whether the disputed treatment plans were reasonable and necessary at the time they were submitted. Further, Dr. Sunner acknowledged that the assessment of the Applicant’s headaches was outside the scope of his expertise, which limits the assistance his opinion provides on the issue.
27As a result, I find the contemporaneous treatment records, including Dr. Baumander, clinical notes, as well as the Finchgate Physiotherapy treatment notes documenting ongoing reported improvement with treatment to be more persuasive of whether ongoing physiotherapy was reasonable and necessary. The treatment plan is part of an ongoing treatment for the Applicant’s accident related impairments supported by evidence of the persistent symptoms and documented benefit from prior treatment. I find that the March 15, 2023, physiotherapy treatment plan is reasonable, and necessary.
Is the Applicant entitled to $1,841.41 for physiotherapy services, proposed by Ketankumar Trivedi in a treatment plan/OCF-18 (“plan”) dated November 22, 2023?
28The Applicant is entitled to payment of $1,841.41 for the November 22, 2023, physiotherapy treatment plan.
29The Applicant submits that ongoing physiotherapy was required due to continued pain, headaches and functional limitations more than one year post accident.
30The Respondent relies on Dr. Sunner’s opinion that further facility based physiotherapy was not reasonable and necessary.
31The Applicant continued to experience symptoms beyond the recovery period including pain rated at 7/10 and numbness in the right upper extremity as of December 27, 2023. The continued treatment for physiotherapy is supported by the physiotherapist’s recommendations but also the ongoing medical evidence from the Applicant’s family physician who repeatedly documented ongoing neck and back complaints, I prefer the ongoing clinical evidence of the treating physiotherapist and give it more weight because it is documented in physiotherapy progress notes and treatment plans dated March 15, 2023, and November 22, 2023 (OCF-18s). The Respondent relies on Dr. Sunner’s opinion that the proposed facility based physiotherapy is not reasonable or necessary.
32Accordingly, I prefer the treating clinical evidence of Dr. Baudmander and Finchgate Physiotherapy, because it provides a longitudinal and contemporaneous record of the Applicant’s symptoms, functional limitations and response to treatment, and supports that the proposed physiotherapy is directed toward pain reduction and functional restoration. Therefore, I find that the November 22, 2023, physiotherapy treatment plan is reasonable, and necessary.
Interest
33The applicant is entitled to interest on any overdue benefits in accordance with section 51 of the Schedule.
ORDER
34For the reasons outlined above, I find:
i. The Applicant is removed from the MIG;
ii. The Applicant is entitled to the physiotherapy services date March 15, 2023;
iii. The Applicant is entitled to the physiotherapy services dated November 22, 2023; and
iv. The Applicant is entitled to interest in accordance with s.51 of the Schedule.
Released: February 13, 2026
Georgina Blanas
Adjudicator