Licence Appeal Tribunal File Number: 24-007151/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:
Peter Wolliston
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Steve Clarke
APPEARANCES:
For the Applicant: Lily Rodriguez, Paralegal
For the Respondent: Chelsea Gilder, Counsel
HEARD: In Writing
OVERVIEW
1Peter Wolliston, the applicant, was involved in an automobile accident on August 11, 2021, 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 Intact Insurance Company "the respondent", and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2A case conference was held on September 27, 2024, and the matter was set down for a written hearing.
ISSUES
3The 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 (MIG)? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $1,525.84 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan/OCF-18 ("treatment plan") submitted June 1, 2022?
iii. Is the applicant entitled to $2,026.55 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan submitted March 4, 2022?
iv. Is the applicant entitled to $3,795.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan submitted October 8, 2021?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant's injuries are not minor and therefore not subject to the $3,500.00 limit of the Minor Injury Guideline.
5The applicant is not entitled to $1,525.84 for chiropractic services, submitted June 1, 2022.
6The applicant is not entitled to $2,226.55 for chiropractic services, submitted March 4, 2022.
7The applicant is not entitled to $3,795.50 for chiropractic services, submitted October 8, 2021.
8The applicant is not entitled to interest or an award.
ANALYSIS
Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG?
9I find that the applicant did suffer a psychological condition, as a result of the accident and, therefore, he is removed from the MIG.
10Section 18(1) of the Schedule limits medical and rehabilitation benefits to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury. A "minor injury" is defined in section 3(1) of the Schedule 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."
11An 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 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.
12The applicant submits that he has demonstrated that his injuries fall outside the scope of the MIG due to his chronic pain and psychological impairments, which were substantiated by his medical providers from the outset of the accident, adding that the accident has materially contributed to his impairments.
13The applicant adds that his psychological symptoms of vehicular-related anxiety, nervousness, depression, irritability, fatigue, as well as sleep disturbances, concentration and memory issues, remain unresolved.
14The applicant points to an OCF-3, dated October 8, 2021, from Mackenzie Medical, that states the applicant suffers a complete inability to carry of a normal life. He adds that he is unable to engage in the activities in which he was engaged at the time of the accident, as the primary caregiver and has a substantial inability to perform the housekeeping and home maintenance services that he normally participated in, before the accident.
15The respondent maintains that the applicant's injuries fall within the MIG, as the applicant has not produced any compelling evidence that his injuries warrant his removal from the MIG.
16The respondent also submits that even if the applicant has psychological symptoms, they are unrelated to the accident and they do not significantly affect his ability to engage in normal life activities, including driving, activities of daily living (ADLs), housekeeping, and work.
17The respondent further submits that the applicant's first reference to the accident was during the October 8th, 2021 visit to Mackenzie Medical, almost 2 months after the subject accident. This, despite having visited Dr. Chin, his family doctor, on September 24, 2021, is the first time the accident had been referenced.
18While I acknowledge that there was a delay in the applicant relaying accident-related issues to his medical service providers, I do not find this to be indicative that the applicant did not have a psychological condition related to the accident. This is because the evidence indicates that the applicant was having other priority medical conditions dealt with, such as breathing-related issues from COVID and/or pneumonia.
19As noted, there was a delay in the applicant reporting the accident to Dr. Chin, the applicant family doctor. While I accept that this is the case, I find that the applicant has been very consistent in reporting his psychological issues due to the accident. These include: October 15, 2021 to Dr. Chin, who diagnosed the applicant with depression; February 17, 2022, when Dr. Chin conducted a Beck's Depression Inventory; June 15, 2022 when Dr. Chin referred the applicant to the Mental Health and Addiction Clinic; and a March 8, 2023 referral to the Osler Sleep Clinic, for sleep-related issues.
20The respondent submits that the applicant did not attend the four therapy sessions that he was referred to on June 15, 2022, by Dr. Chin, for psychological-related issues. However, I am pointed to a referral from Dr. Chin, included in the reply submissions, for accident-related PTSD and anxiety. As well, the applicant submits that he attended these four-rescheduled group therapy sessions, with Humber River Hospital's Mental Health and Addictions Outpatient Clinic. In any event, whether he attended or not, I find that Dr. Chin's referral is indicative that the applicant reported psychological symptoms, and he received a referral for treatment.
21I also observe that in Dr. Sandhu's (s. 44 physician insurance examiner) report, he records that the applicant stated that he had no pre-accident history of depression or anxiety-related issues but, that he currently has depression and experiences anxiety when driving near trucks.
22The respondent points to the results of two psychological tests administered to the applicant by Dr. Chin, with the following results: Beck's Depression Inventory (BDI): 20, Beck's Anxiety Inventory (BAI): 17. The depression score indicates moderate/borderline clinical depression. Although, the respondent states that the anxiety rating is very low, a review of the BAI anxiety score illustrates moderate anxiety, as a score of 16 or higher indicates clinically significant anxiety.
23I acknowledge the respondent's submissions but put weight on Dr. Chin's opinion that the applicant has depression, which he appears to have not had before the accident, and for which he has been referred to treatment. I give Dr. Chin's opinion weight because as the applicant's family physician, Dr. Chin is qualified to render such an opinion, and because he conducted psychological testing and examined the applicant before coming to his opinion. While there was a delay in the applicant pursuing treatment, I nonetheless find that the applicant has been consistent in his reporting of psychological symptoms, as a result of the accident, and subsequently was referred for psychological treatment. Further, the s.44 examiner, Dr. Sandhu, noted that he did not observe any inconsistencies between his formal testing and his informal observations of the applicant's performance and reported he had depression and vehicular anxiety.
24For the reasons noted above, I find on a balance of probabilities, the applicant has an accident-related psychological condition and therefore, suffered injuries beyond the MIG. He is therefore removed from the MIG.
Is the applicant entitled to $1,525.84 for chiropractic services, in a treatment plan/OCF-18 submitted June 1, 2022?
Is the applicant entitled to $2,026.55 for chiropractic services, in a treatment plan submitted March 4, 2022?
Is the applicant entitled to $3,795.50 for chiropractic services, in a treatment plan submitted October 8, 2021?
25The applicant is not entitled to these treatment plans proposed by Mackenzie Medical Rehabilitation Centre.
26To 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.
27The treatment plan, dated June 1, 2022, proposes 8 therapeutic and 8 manipulation sessions that include the following goals: increased range of motion, pain reduction, increased strength and a return to activities of daily living (ADLs).
28The treatment plan, submitted March 4, 2022, proposes 9 sessions each for: exercise, manipulation of multiple body sites, massage and physical therapy.
29The treatment plan, dated October 8, 2021, proposes 18 sessions each for manipulation, therapy, exercise, and 15 sessions of massage therapy.
30The goals of these plans include: increased range of motion, increased strength, reduced pain, a return to activities of normal living and a return to modified work activities.
31The applicant submits that the treatment plans are reasonable and necessary as they all relate to his accident-related physical impairments. He adds that these plans are needed to prevent further injury, reduce pain, provide pain relief and increase strength and range of motion.
32The applicant states that he sustained injuries and continues to experience chronic upper, mid and lower back pain (thoracic spine pain), right hip, right glute and knee pains. The applicant also relies on the OCF-3 noted above.
33The applicant submitted that he experienced immediate shock and pain after the accident; however, he did not visit an emergency department. Further, and although his vehicle was deemed a 'write-off', his air bag did not deploy and no ambulance or police responded due to the accident.
34The applicant attended Midas Touch Therapy on August 21, 2021, 10 days after the accident. This treatment appears to be non-accident related as it was for full-body physiotherapy treatment. There was no reference to the motor vehicle accident.
35On September 3, 2021, the applicant visited Humber River Hospital but there was no record of any trauma issues and no reference to the accident.
36On September 24, 2021, the applicant visited Dr. Chin for Covid-related issues. There is no reference to any accident-related physical issues in the doctor's notes.
37Dr. Chin referred the applicant for x-rays, for pain that applicant stated he did not have before the accident, in December 2021. The x-rays came back negative.
38I see no reference to any prescribed pain medication. The only references to pain medication are for over-the-counter analgesics, again, indicating the injuries are minor.
39The respondent submits that the treatment plans proposed by the applicant are not reasonable and necessary and has not provided any objective evidence to justify the recommended treatment plans and therefore the applicant's claim is subject to the MIG limits, which have been exhausted.
40The respondent adds that the applicant has not provided any insight into the extent of his injuries or his limitations, as a result of the accident.
41I agree with the respondent that these treatment plans are not reasonable and necessary.
42On the OCF-3 referenced above, the applicant submits that he suffered a complete inability to carry on a normal life and a substantial inability to engage in the caregiving care giving activities in which he was engaged, at the time of the accident.
43In his report dated May 30, 2022, Dr. Sandhu notes that the applicant had reported an 85% symptomatic improvement, post-accident. During this assessment, Dr. Sandhu also notes that the applicant states he is independent in his activities of daily-living and continues to assist in housekeeping and cooking.
44I put weight in Dr. Sandhu's report as he conducted several objective physical examinations. He found that the applicant had no pain on palpation of right hip, there was no sensory deficits with a dermatomal distribution or any features of an active radiculopathy distribution or myelopathy. He further added that a motor exam was normal.
45Dr. Sandhu opined that he found the applicant had likely achieved maximum therapeutic benefit from clinic-based therapy. Further, during this s.44 examination, the applicant reported that he was 'feeling great' that day and that he was 'progressing great'.
46I agree with Dr. Sandhu when he concludes that the applicant has likely achieved maximum therapeutic benefit after seven months of treatment.
47I am not pointed to any other evidence that corroborates the need for chiropractic treatment.
48It is well-established that a treatment plan on its own is not sufficient to establish that it is reasonable and necessary. There must be corroborating, contemporaneous medical evidence.
49I have reviewed the CNRs of Dr. Chin. I am not pointed to any corroborating, contemporaneous objective evidence in support of these treatment plans.
50Despite numerous visits to his family doctor, there is no timely referral for chiropractic therapy to substantiate these treatment plans.
51As stated above, one of the treatment plan goals was to get the applicant back to work on modified duties. However, the applicant had already returned to work on modified duties, as he only missed 4 or 5 days of work, after the accident.
52From a physical perspective, I note the OCF-3 dated October 8, 2021, Dr. Harjot Grewal noted that the duration of any accident disabilities he observed should only be 9-12 weeks.
53I am not pointed to evidence that substantiates that any physical injuries were beyond minor/soft-tissue/sprain or strain in nature or that any physical injuries are a result of the motor vehicle accident.
54I find on a balance of probabilities that the applicant is not entitled to these treatment plans.
Interest
55There are no overdue payments for the proposed treatment plans. The applicant is not entitled to interest pursuant to section 51 of the Schedule.
Award
56As the are no overdue payments, the applicant is not entitled to a s.10 award.
ORDER
57For the above reasons, I find as follows:
i. The applicant is removed from the Minor Injury Guideline.
ii. The proposed treatment plans are not reasonable or necessary.
iii. The applicant is not entitled to interest.
iv. The applicant is not entitled to an award under s.10.
Released: March 4, 2026
__________________________
Steve Clarke
Adjudicator