LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: December 06, 2016

Tribunal File Number: 16-000642/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits

Between:

M. M. Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION

Adjudicator: Anna Truong

Appearances: Gavin W. Freitag, counsel for the Applicant David A. Scott, counsel for the Respondent

Heard in writing on: October 12, 2016

OVERVIEW

1M. M. (“the Applicant”) was involved in an automobile accident on October 23, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The Applicant applied for a neuropsychological assessment and chiropractic treatment, but was denied, because she was placed into the Minor Injury Guideline (the “MIG”) and had exhausted the $3,500 statutory limit.

3The Applicant disagreed with this decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

1. Did the Applicant sustain predominately minor injuries as defined under the Schedule?

2. If the answer to issue one is no:

a. Is the Applicant entitled to the cost of a neuropsychological assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated June 7, 2014 completed by Dr. Jennifer Sullivan, clinical psychologist, in the amount of $1,979.36?

b. Is the Applicant entitled to a medical benefit as outlined in the Treatment and Assessment Plan (OCF-18) dated December 30, 2015 completed by Dr. Richard Robson, chiropractor, for chiropractic treatment in the amount of $960?

RESULT

5Based on the totality of the evidence before me, I find that:

1. The Applicant sustained predominately minor injuries as defined under the Schedule.

2. Since the answer to issue one is yes:

a. The Applicant is not entitled to the cost of a neuropsychological assessment as outlined in the Treatment and Assessment Plan dated June 7, 2014 completed by Dr. Jennifer Sullivan, clinical psychologist, in the amount of $1,979.36.

b. The Applicant is not entitled to a medical benefit as outlined in the Treatment and Assessment Plan dated December 30, 2015 completed by Dr. Richard Robson, chiropractor, for chiropractic treatment in the amount of $960.

ANALYSIS

1. Applicability of the Minor Injury Guideline

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the MIG.

7Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8The Respondent submitted the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”). In this case, the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the Applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries.

Injuries Sustained

9The only evidence submitted by the parties is documentary evidence and I have considered all of the documents submitted. The Applicant’s family physician, Dr. Beaton, submitted a Disability Certificate (OCF-3) dated March 31, 2015, which states that the Applicant suffered from neck strain/whiplash, lower back pain, difficulty with mental processing/thought process, and short term memory as a result of the accident. This OCF-3 is dated almost a year and a half after the accident and does not indicate that the Applicant sustained any injuries other than minor injuries.

10The Applicant’s treating chiropractor, Dr. Richard Robson, submitted a Treatment Confirmation Form (OCF-23) dated December 2, 2013. This form is used initially for injuries that fall within the MIG and provides quick access to the $3,500 in funds without the need for prior approval from the insurer. In the OCF-23, Dr. Robson confirms that the Applicant’s injuries fall within the MIG and she sustained whiplash associated disorder (WAD) I as well as dislocation, sprain and strain of joints and ligaments, of her lumbar spine, pelvis and thorax as a result of the indexed accident.

11An independent Chiropractic Assessment dated April 4, 2016 by Dr. Andrew Holland, chiropractor, concluded that the Applicant’s injuries are consistent with a minor injury.

12The Applicant submits that her neurosymptomology falls outside the MIG. While Dr. Jennifer Sullivan, the Applicant’s treating psychologist, recommends that the Applicant undergo a neuropsychological assessment, she does not state that these symptoms prevent the Applicant from recovering under the MIG. Dr. Sullivan also does not opine that the Applicant did not sustain minor injuries as a result of the indexed accident. Dr. Beaton’s clinical notes and records do not indicate that the Applicant’s neurosymptomology falls outside of the MIG and Dr. Beaton’s records also do not indicate that the Applicant sustained anything other than minor injuries as a result of the indexed accident.

13With respect to the Applicant’s psychological injuries post-accident, in Dr. Sullivan’s letters dated March 5, 2014 and June 7, 2014, she opines that the Applicant only sustained minimal psychological sequelae, which would be expected following a motor vehicle accident. These include minimal anxiety and depression and no evidence of post-traumatic stress. An independent Psychological Assessment dated September 5, 2014 by Dr. Alan Bosma, clinical psychologist, concluded that the Applicant’s injuries fall under the definition of minor injury.

14None of the Applicant’s treating physicians or independent assessors are of the opinion that the Applicant’s injuries sustained in the indexed accident fall outside the MIG. Based on the evidence before me, I find that the Applicant sustained predominately minor injuries, as defined under the Schedule, as a result of the indexed accident. Having found that, I must now consider if there is compelling evidence that the Applicant suffered from a pre-existing condition, documented by a healthcare practitioner before the accident, which prevents her from achieving maximal recovery under the MIG.

Pre-existing Conditions

15In the Applicant’s submissions, she argues that she has pre-existing medical conditions that prevent her from achieving maximal recovery under the MIG. However, the Applicant does not specify which specific pre-existing conditions prevent her from recovery and how these conditions prevent her from recovery under the MIG. The presence of a pre-existing condition alone is not sufficient to remove the Applicant from the MIG. The Applicant must adduce evidence to demonstrate that these pre-existing conditions prevent her from achieving maximal recovery within the MIG. The Applicant did not point me to any evidence that demonstrates this.

16There is evidence that the Applicant was involved in a motor vehicle accident in 2009 and 2012, in which she suffered back injuries. A Pre-Approved Framework Treatment Confirmation Form (OCF-23) dated September 9, 2009 by Dr. Robson indicates that the Applicant sustained a WAD I and upper thoracic strain as a result of her accident on August 14, 2009. The Pre-Approved Framework (PAF) is the predecessor of the MIG under the previous version of the Schedule. An independent Chiropractic Assessment dated August 19, 2010 by Dr. Shane McCormack, chiropractor, concluded that the Applicant had reached maximal therapeutic benefit from chiropractic care and only suffered from “mild lumbosacral dysfunction” in the form of small reductions in her lumbar spine range of motion.

17Records indicate that the Applicant made a Workplace Safety and Insurance Board (WSIB) claim as a result of the accident in 2012. In the WSIB Initial Assessment Report dated September 26, 2012, Dr. Robson diagnosed the Applicant with lumbar and thoracic spine strain as a result of the accident on September 12, 2012. In that form, Dr. Robson indicated that there was no applicable medical history or condition for this injury and that there were no complicating factors that may delay recovery.

18In the WSIB Outcomes Summary form dated December 6, 2012, Dr. Robson indicates that the Applicant has returned to her pre-injury level of overall function without outstanding issues and that she could return to her full-time work duties without limitations. Therefore, based on the record before me, I find that the Applicant’s injuries from her 2009 and 2012 accidents had resolved by December 2012.

19In the Applicant’s submissions, she argues that Dr. Beaton documented “pre-accident chronic neck and back pain and a flare up of her anxiety and depression, since and as a result of the 2012 motor vehicle accident”. The Applicant did not point to a specific note by Dr. Beaton that supports this argument. The cover letter to Dr. Beaton’s clinical notes and records contain a handwritten note from Dr. Beaton that states she has only been the Applicant’s family physician from October 9, 2013 and only has records from that date forward. Dr. Beaton was not the Applicant’s family physician at the time of the 2012 motor vehicle accident. Additionally, Dr. Beaton’s records only contain one note from before the indexed accident that deals with a neck lump. Therefore, Dr. Beaton’s records cannot and do not document a pre-existing condition that prevents the Applicant from achieving maximal recovery under the MIG.

20In fact, the first time Dr. Beaton’s notes mention the accident is November 11, 2013. In that note, she states that the Applicant had full range of motion in her neck and back and that her chronic back and neck pain did not change from previous. Dr. Beaton noted that there was no need for imaging and that the Applicant would be in pain for the next few days.

21In Parts 6 and 7 of Dr. Robson’s OCF-23, he does not list any disease, condition or injury prior to the accident that would affect the Applicant’s response to treatment and he also noted that there were no barriers to recovery. Dr. Robson had been the Applicant’s treating chiropractor for years pre-accident and he is aware of the Applicant’s medical history and previous accidents. Presumably, had Dr. Robson been of the opinion that the Applicant was unable to recover under the MIG due to a pre-existing condition, he would have noted such.

22Dr. Holland’s independent Chiropractic Assessment dated April 4, 2016 found that the Applicant had no pre-existing condition that warranted treatment outside of the MIG.

23Dr. Bosma’s independent Psychological Assessment dated September 5, 2014 found that the Applicant had pre-existing psychological conditions that pre-date the accident. However, he did not opine that these pre-existing psychological conditions would prevent the Applicant from achieving maximal recovery under the MIG.

24As mentioned above, Dr. Sullivan, in letters dated March 5, 2014 and June 7, 2014, opines that the Applicant only sustained minimal psychological sequelae, which would be expected following a motor vehicle accident. These include minimal anxiety and depression and no evidence of post-traumatic stress. In Parts 6 and 7 of Dr. Sullivan’s Treatment and Assessment Plan (OCF-18) dated June 7, 2014, she does not does not list any disease, condition or injury prior to the accident that would affect the Applicant’s response to treatment and she also did not list any barriers to recovery. Therefore, I find that the Applicant’s pre-existing psychological condition would not prevent her from recovery under the MIG.

25Based on the evidence before me, I find that the Applicant has failed to satisfy her onus to show that there is compelling evidence that she cannot achieve maximal recovery within the MIG because of a pre-existing medical condition.

2. Cost of the Neuropsychological Assessment and Chiropractic Treatment Plan

26Since I have found that the Applicant sustained predominately minor injuries as defined under the Schedule and the Applicant has exhausted her $3,500 limit under the MIG, the cost of the neuropsychological assessment and chiropractic treatment plan are not payable.

CONCLUSION

27For the reasons outlined above, I find that:

1. The Applicant sustained predominately minor injuries as defined under the Schedule.

2. Since the answer to issue one is yes:

a. The Applicant is not entitled to the cost of a neuropsychological assessment as outlined in the Treatment and Assessment Plan (OCF-18) dated June 7, 2014 completed by Dr. Jennifer Sullivan, clinical psychologist, in the amount of $1,979.36.

b. The Applicant is not entitled to a medical benefit as outlined in the Treatment and Assessment Plan (OCF-18) dated December 30, 2015 completed by Dr. Richard Robson, chiropractor, for chiropractic treatment in the amount of $960.