In a recent decision, the Licence Appeal Tribunal (the “LAT”) held that the applicant’s concussion removed him from the Minor Injury Guideline (the “MIG”) despite the effective resolution of his concussion symptoms.
Overview
This hearing before the LAT, which proceeded by way of written submissions, dealt primarily with the issue of whether the applicant’s injuries were predominantly minor within the meaning of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”). The applicant submitted two medical and rehabilitation treatment plans totaling an amount above the $3,500 available under the MIG for claimants with predominantly minor injuries.
The LAT affirmed that the burden of proof, which is on a balance of probabilities, is on the applicant to demonstrate that their injuries fall outside the MIG.
Held
Based on the evidence presented, the adjudicator concluded that the applicant had suffered a concussion and post-concussion symptoms as a result of the motor vehicle collision, which was sufficient to remove him from the MIG. However, the applicant was not entitled to payment of the physiotherapy or psychological treatment plans in dispute, as he did not demonstrate them to be reasonable and necessary (see para. 4(ii) of Decision).
Analysis
MIG Application
The applicant argued that his removal from the MIG was warranted on the basis of a concussion, chronic pain with evidence of a functional impairment and the exacerbation of his pre-existing back pain. The respondent argued that the applicant had adduced insufficient medical evidence to prove the above and, in any event, his concussion and related symptoms had since resolved. The adjudicator examined whether the applicant had sustained a concussion and post-concussion symptoms and did not address the issues of chronic pain or pre-existing impairments.
In holding that the applicant had demonstrated he suffered a concussion and post-concussion symptoms in the subject collision, the adjudicator stated, “I am persuaded by the totality of the applicant’s medical evidence regarding the concussion” (at para 13). Notably, the applicant had reported his head injury and resultant symptoms to his family physician, Dr. Abdulkarim, the day following the collision and was subsequently consistent in his self-reporting to Dr. Abdulkarim. The insurer’s examination of the applicant, carried out by Dr. Mendis, neurologist, was further inconclusive as to whether he sustained a concussion.
The adjudicator further held that the “[o]ther medical evidence submitted by the applicant is equally harmonious with regard to the applicant’s claimed concussion and post-concussion symptoms” (at para 15). Despite noting the lack of neurological expertise of the applicant’s physiotherapists, the adjudicator noted the physiotherapy records demonstrated consistent reporting of head injury symptoms by the applicant to his treatment providers.
The respondent’s counterargument focused on the fact that the applicant was never formally diagnosed with a concussion and that Dr. Abdulkarim did not refer him to a neurologist or conduct testing for head trauma. The adjudicator rejected these arguments, noting that Dr. Abdulkarim performed a pupils are equal, round and reactive to light and accommodation, or PERRLA assessment, which “may not be as comprehensive as what could have been ascertained by ordering neurological testing” but that “it is testing, nonetheless” (at para 19). The adjudicator continued noting that the significance of the absence of a concussion diagnosis was undermined by Dr. Mendis’ conclusion in the insurer’s examination, i.e., the inconclusiveness as to whether the applicant sustained a concussion.
Holding that the 2023 LAT decision in Han v. Wawanesa Mutual Insurance Company applied, the adjudicator noted that the respondent’s obligations to the applicant are not tied to the resolution of his symptoms:
“Further, I find the applicant’s reference to Han v. Wawanesa applicable here and agree with the reasoning in that Tribunal preliminary decision. As with Han, I also find that an insurer cannot escape its obligations under the Schedule by delaying action such as a MIG determination until an applicant has recuperated to a point when the determination could be argued to no longer matter. The approach suggested by Economical—centering on claims that the applicant’s injuries, including his concussion symptoms, had “resolved completely” as of November 4, 2021 because no treatment was sought beyond that date—would undermine the consumer protection basis of the Schedule. To paraphrase Han, the issue is not whether Economical has to honour its obligations now, but whether the insurer should have honoured its obligations in the past, even if the denial made at that time was in good faith” (at para 21).
Treatment and Assessment Plans
Despite concluding that the applicant’s injuries sustained in the collision removed him from the MIG, the adjudicator held the applicant was not entitled to two treatment plans for physiotherapy and psychological services.
With respect to the physiotherapy services, the adjudicator held that the applicant’s submissions “largely address his need for physical therapy in a general fashion” (at para 29) and offered critique of the respondent’s position rather than demonstrating why the treatment is reasonable and necessary as a result of the collision. It was further unclear which physiotherapy plan was actually in dispute.
The adjudicator similarly held that the applicant failed to demonstrate the psychological services were reasonable and necessary as a result of the collision. The adjudicator noted the clinical notes and records of Dr. Abdulkarim that referred to stress were not made in connection to the collision. Other recommendations for psychological screening were made by practitioners without psychological expertise and based on the applicant’s self-reporting of his symptoms, which notably, he did not report to Dr. Abdulkarim or the IE assessors in connection with the collision.
Conclusion
Mohammed v. Economical Insurance Company serves as an important reminder for both applicants and respondents alike. Even where the collision related impairment(s) have essentially resolved, if the injuries sustained fall outside the definition of a minor injury, as defined in the Schedule, an applicant can still be removed from the MIG. As indicated above, the issue is not whether the insurer must honour its obligations to the insured presently, but whether the insurer should have honoured its obligations to the insured in the past. Where an applicant is subsequently removed from the MIG, this decision reaffirms that payment of treatment does not automatically follow. An applicant must still demonstrate that treatment is reasonable and necessary and not rely solely on MIG removal to justify treatment.
