J.K. v. Intact Insurance Company, 2018 CanLII 140345

Tribunal File Number: 17-005288/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:

J.K.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Nader Fathi, Paralegal

For the Respondent: Safina Khan, Counsel

HEARD: In writing on March 14, 2018

OVERVIEW

1J.K. (“the applicant”) was injured in an automobile accident (“the accident”) on October 7, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is exactly the opposite.

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary.

ISSUES

4Did the applicant sustain predominantly minor injuries as defined by the Schedule?

5If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to a medical benefit in the amount of $3,652.00 for chiropractic services from Mackenzie Medical Rehabilitation in a treatment plan (OCF-18) submitted to the respondent on March 21, 2016 and denied on July 18, 2016?

ii. Is the applicant entitled to a medical benefit in the amount of $2,027.00 for physiotherapy services from Mackenzie Medical Rehabilitation in a treatment plan (OCF-18) submitted to the respondent on September 10, 2016 and denied on September 26, 2016?

iii. Is the applicant entitled to a medical benefit in the amount of $1,384.70 for physiotherapy and massage services from Mackenzie Medical Rehabilitation in a treatment plan (OCF-18) submitted to the respondent on January 9, 2017 and denied on March 24, 2017?

iv. Is the applicant entitled to the cost of examination by Promed Rehabilitation Clinic for a psychological assessment in the amount of $2,200.00 submitted to the respondent on September 10, 2016 and denied on October 27, 2016?

v. Is the applicant entitled to the cost of examination by Healthmax Physio for a chronic pain assessment in the amount of $2,460.00 submitted to the respondent on May 24, 2017 and denied on June 9, 2017?

RESULT

6I find that the applicant sustained predominantly minor injuries as defined under the Schedule. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plans.

ANALYSIS

7The onus is on the applicant to show that her injuries fall outside of the MIG.³ The applicant’s submissions do not provide an analysis as to why her injuries are not within the MIG. The applicant’s submissions discussed s. 15 and 16 of the Schedule, but neglected to address the minor injury guideline or why the treatment plans were reasonable or necessary. Despite the lack of submissions, in order to determine if the applicant’s injuries fall outside the MIG, I considered whether or not there was any evidence that the applicant (a) had a pre-existing medical condition; (b) if she sustained any injuries that were more than soft tissue in nature; or (c) has psychological injuries and/or post-concussion syndrome as a result of the accident.

Pre-existing Condition

8Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirement in order to escape the MIG:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁴

9The applicant has failed to persuade me that she has a pre-existing medical condition that would remove her from the MIG. The clinical notes and records of the family physician, Dr. Cheskes, do not establish that the applicant had a pre- existing condition that would exclude her from the MIG. The records that were provided cover the period from the applicant’s birth up to April 2017. The pre- accident records indicate that the applicant saw Dr. Cheskes in June 2010 for left wrist pain following a fall, and strain of her left little finger in May 2014. The applicant did not provide any compelling evidence medical evidence upon which I could find that her pre-existing left wrist and finger strain were significant enough to warrant her removal from the MIG.

Physical Injuries

10Section 3(1) of the Schedule 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 Schedule also defines what these terms for injuries mean.

11Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

12The applicant has failed to persuade me that she sustained any injuries that were more than soft tissue in nature. In fact, the applicant’s first post-accident visit to her family doctor took place over 8 months after the MVA, and was for an unrelated issue. There are no entries reporting the MVA, nor any entries documenting any accident related complaints. If the applicant’s injuries were more than minor in nature, I would expect that she would have visited her family doctor and advised him that she experienced some symptoms as a result of her involvement in a motor vehicle accident.

13Further, the applicant commenced physiotherapy in March 2016, some 6 months post-accident. I find that a six month delay in commencing treatment after the accident to be significant. Based on the lack of complaints to her family doctor following the accident and the delay in seeking treatment, I find no reason to believe that her injuries are more than more than minor in nature.

14The applicant submits that her symptoms prevent her from performing her essential tasks of daily living. I agree that a decline in function or ability may be evidence that would support that an applicant should be removed from the MIG. However, the evidence does not support that the applicant had any decline in her level of function. The applicant returned to work full time without modifications in hours or duties.⁵ The applicant continued to handle all aspects of her personal care and performed all of her daily activities.⁶ She continued to go to the gym three days a week, and also travelled to Jamaica.⁷ In fact, the evidence demonstrates that her level of function likely increased after the accident, given that at the time of the accident the applicant was living with her parents, but subsequently moved into her own apartment following the MVA.⁸

15The evidence submitted by the respondent supports my finding that the applicant sustained at most soft tissue injuries as a result of the accident. The respondent submitted a physician assessment report by Dr. Ahmad Belfon, dated March 24, 2017. Dr. Belfon diagnosed sprain and strain injuries to the neck and back and post-traumatic headaches. He noted some residual myofascial back and neck pain but no impairments. From a physical perspective, consistent with Dr. Belfon’s conclusions, I find that the applicant sustained a “minor injury” as defined by the Schedule.

Psychological Impairment

16The applicant has failed to satisfy me that she sustained psychological injuries that require treatment above that provided in the MIG. My finding is based on a review and analysis of psychological assessments submitted by both parties. Ultimately I found the report submitted by the respondent to be more persuasive than that submitted by the applicant because it is more consistent with the applicant’s reported level of function as noted above.

17The applicant submitted a psychological assessment prepared by Dr. Romeo Vitelli, dated September 14, 2016. Dr. Vitelli diagnosed an adjustment disorder with mixed anxious mood, and a major depressive disorder. Dr. Vitelli concluded that the applicant’s current level of psychological functioning prevented her from performing the essential tasks of her daily living. He noted that the applicant had difficulty performing her own self-care, that she had ceased all social activities, and had difficulty with cognitive functioning such as concentration after the accident.

18The respondent relied on a psychological assessment report prepared by Dr. Marc Mandel, dated November 23, 2016. As indicated above, the applicant reported that she was high functioning in terms of her activities of daily living after the accident – she moved out of her parent’s home into her own apartment, returned to work full time, and continued going to the gym several days a week. She described some issues with motivation and lack of energy. Difficulties with memory and concentration were attributed by the applicant to her use of marijuana. Based on the clinical interview and psychological testing, Dr. Mandel concluded that the information suggested that the applicant did not have a psychological impairment or disability.

19I prefer the evidence of Dr. Mandel over that of Dr. Vitelli because Dr. Vitelli’s findings are inconsistent with the applicant’s level of function, and he did not review or consider any medical documentation to support his conclusions.

Post-Concussive Syndrome

20There is no medical evidence that the applicant sustained a concussion as a result of the accident. A treatment plan completed by the applicant’s chiropractor and massage therapist dated March 21, 2016, states that the applicant sustained soft tissue injuries and postconcussional syndrome. There is no description of the symptoms or testing upon which this diagnosis was made. Without additional medical evidence, I cannot conclude that the applicant sustained a concussion based on this one line in a treatment plan, nor does this remove her from the MIG.

Chronic Pain

21I am not satisfied that the applicant has chronic pain as a result of the accident. A treatment plan submitted by Ida Aghigh (chiropractor) of Healthmax Physio dated May 24, 2015, indicates that the applicant has developed chronic pain and recommends a chronic pain assessment. However, none of the medical evidence supports a diagnosis of chronic pain. I cannot conclude that the applicant suffers from chronic pain based on this treatment plan, nor does this remove her from the MIG.

CONCLUSION

22For the reasons outlined above, I 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, she is not entitled to the treatment plans claimed in this application and it is unnecessary for me to assess whether they are reasonable and necessary.

23The applicant’s appeal on all issues in dispute is dismissed.

Released: July 17, 2018

_____________________

Kate Grieves

Adjudicator

page 5, heading 4, “Impairments that do not come within this Guideline”.

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.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act
5. 5Reports of Dr. Belfon and Dr. Mandel.
6. 6Reports of Dr. Belfon and Dr. Mandel.
7. 7Reports of Dr. Belfon and Dr. Mandel.
8. 8Reports of Dr. Vitelli, Dr. Belfon and Dr. Mandel.```