Date: 2018-06-18

Tribunal File Number: 17-005131/AABS

Case Name: 17-005131 v Allstate Insurance Company

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:

G.T.

Applicant

and

Allstate Insurance Company

Respondent

DECISION

ADJUDICATOR: Craig Mazerolle

APPEARANCES:

Paralegal for the Applicant: Wei Guo

Counsel for the Respondent: Andrew Franklin

Written Hearing on: April 30, 2018

OVERVIEW

1G.T. (the “applicant”) was injured in an automobile accident on December 23, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when some of these benefits were denied by the respondent.

2The respondent denied some of the applicant’s claims, because it determined that all of his injuries fit the definition of “minor injury” under the Schedule, and therefore, fell within the Minor Injury Guideline² (the “MIG”).

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits, as prescribed by s. 18(1) of the Schedule. In turn, a determination of whether the proposed medical benefits are reasonable and necessary will be unnecessary, as the applicant’s previous treatment has already reached this financial limit.

ISSUES

4The medical benefits in dispute are for physiotherapy services from North Toronto Rehabilitation and Physiotherapy (“North Toronto”):

i. $1,984.20, as recommended in a treatment plan denied on August 13, 2015;

ii. $1,969.10, as recommended in a treatment plan denied on January 18, 2016;

iii. $1,437.98, as recommended in a treatment plan denied on March 22, 2016; and

iv. $1,856.29, as recommended in a treatment plan denied on July 6, 2016.

5The applicant is also requesting interest and an award under O. Reg. 664.

RESULT

6I find that the applicant’s injuries fall within the MIG. It is, therefore, unnecessary to consider whether the medical benefits are reasonable and necessary. Since there is no outstanding payment of benefits, there can be no interest or an award.

ANALYSIS

Minor Injury Guideline

7Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. The onus is on the applicant to show—on a balance of probabilities—that she or he should not be held to this cap on benefits. Therefore, by showing that an injury is not “predominately a minor injury”, the financial limit will not apply.

8Section 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 and includes any clinically associated sequelae to such an injury.” The MIG provides guidance about how to interpret this definition.

9The applicant contends that he should be removed from the MIG on two grounds: pre-existing medical conditions and chronic pain. The respondent contends that there is insufficient medical evidence to support either argument.

Pre-existing Conditions

10Section 18(2) of the Schedule provides that insured persons with minor injuries may still be exempted from the $3,500.00 cap on benefits on account of a pre-existing condition. In order to meet this strict standard, the applicant must provide compelling evidence of the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident took place; and,

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the insured person is subject to the $3,500.00 financial limit.³

11Though this exemption is raised by the applicant, I am unclear as to what he is citing as his pre-existing medical conditions. The treatment plans in dispute also fail to provide the Tribunal with any indication of what pre-existing conditions the applicant may have had at the time of the accident.

12However, the applicant’s submissions do highlight several conditions that may be considered pre-existing: i.e., “degenerative changes of the cervical and lumbar spine”, gastrointestinal bleeding, and gastrointestinal infections. The applicant also directs the Tribunal’s attention to a colonoscopy he underwent on September 14, 2015, on account of his family’s history with cancer.

13An April 2018 report from his treating chiropractor, Dr. Ian Kai, is then cited as a medical opinion to support the connection between the applicant’s degenerative spinal condition and his inability to recover under the cap on benefits. Specifically, Dr. Kai points to the applicant’s “livelihood as a long distance truck driver who has to sit all day as well as load and unload cargo.”

14The respondent contends that the Tribunal has not been provided with documentation that predates the accident. Additionally, there is no evidence demonstrating how these pre-existing conditions and the cap on benefits will together hinder the applicant’s recovery of his minor injuries.

15I find that the applicant has not demonstrated that any of his pre-existing medical conditions would prevent his recovery under the $3,500.00 financial limit. First, as I will detail below, the applicant’s medical records demonstrate that the pain from his accident-related injuries have effectively ended, despite the strenuous nature of his profession. Second, the applicant’s evidence does not provide a medical reason for why his gastrointestinal bleeding, gastrointestinal infections, or his family’s history of cancer would prevent recovery under the MIG’s financial and treatment limit. Taken together, the applicant has not provided the Tribunal with sufficient evidence to meet the strict threshold under s. 18(2) of the Schedule.

Chronic Pain

16Additionally, the applicant submits that he has consistently complained about pain in his head, neck, shoulders, and back. Therefore, the applicant’s submissions are premised on an argument that he should be removed from the MIG on account of his long-standing pain and his need to care for his family.

17In support of this argument, the applicant highlights the clinical notes and records of: Dr. Clement Yeung; Dr. Jason Kwok (i.e., his family physician); and North Toronto (including records from Dr. Kai).

18The respondent submits that the applicant’s medical evidence demonstrates that he only received soft tissue injuries as a result of the accident, i.e., injuries that fall within the definition of a “minor injury”. The respondent also argues that long-standing discomfort alone does not reach the threshold of removing an insured person from the MIG. Rather, the applicant’s pain and discomfort are clinically associated sequelae to his accident-related, minor injuries.

19After reviewing the parties’ submissions and evidence, I find that the applicant does not suffer from chronic pain such that he should be removed from the financial and treatment limit of the MIG. Briefly, a review of the applicant’s medical evidence demonstrates that his pain largely subsided in the months following the accident.

20During a physical examination at North Toronto on December 30, 2014 (i.e., one week after the accident), the applicant stated that his pain was already feeling “better”. In clinical notes from North Toronto dated March 14 and May 23, 2015 (i.e., several months after the accident), the applicant stated that he felt significantly better, i.e., a self-reported improvement of 80-90%.

21Dr. Kai then recorded a “subjective improvement of 80%” in the treatment plan dated June 8, 2015. In the treatment plan dated January 19, 2016, he then found that the applicant’s pain was no longer constant, though the pain was “sharp and intense” when it did appear.

22Finally, in a clinical note from North Toronto dated May 24, 2016, the treating practitioner noted that the applicant [strikethrough in original]: “feels like he fully recovered… went back to work never stopped work… sleeping is fine”.

23While I appreciate the applicant may continue to struggle with some pain, I would also note that his evidence fails to demonstrate that his pain is not clinically associated sequelae to the soft tissue injuries caused by the accident. Put another way, I have insufficient evidence to demonstrate that this pain is not a by-product of otherwise minor injuries.

CONCLUSION

24I find that the applicant sustained predominantly minor injuries that fall within the MIG. Because I have found the applicant’s injuries to fall within the MIG, it is unnecessary for me to assess whether the medical benefits are reasonable and necessary.

25Further, since there is no outstanding payment of benefits, there can be no basis for interest or an award under O. Reg. 664.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8. (the “Insurance Act”).
3. 3Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act, page 5, heading 4, “Impairments that do not come within this Guideline”.