Tribunal File Number: 18-007131/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
M.T.
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Craig Mazerolle
APPEARANCES:
For the Applicant:
Nader Fathi, Paralegal
For the Respondent:
Jessica Abramovitch, Counsel
Held by Written Hearing:
June 24, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident on January 26, 2016. To assist in her recovery, she applied for an income replacement benefit and medical treatment payable under the Statutory Accident Benefits Schedule (the “Schedule”).1 When the respondent declined to pay for these benefits, she applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2In addition to an income replacement benefit (from August 3, 2016 to date and ongoing), the applicant is also requesting medical benefits detailed in five treatment plans. These benefits include requests for physical and psychological services. The applicant is also requesting interest on any overdue payments.
3I find the applicant is not entitled to any of these disputed benefits.
MINOR INJURY GUIDELINE
4Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the automobile accident.
5In the present case, the applicant also has the onus of demonstrating that her injuries do not fall within the Minor Injury Guideline (the “MIG”). That is, if an insured person has only suffered a “minor injury” as a result of an accident, s. 18(1) of the Schedule places a $3,500.00 limit on the treatment that they can request.
6The main means of removal from this limit is when an insured person can demonstrate that they sustained an impairment that is not “predominantly a minor injury”. A “minor injury” is defined in the Schedule as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Psychological impairments do not fall under this definition.
7Section 18(2) of the Schedule then states that the financial limit of the MIG will not apply if an applicant can demonstrate that they suffered from a pre-existing medical condition that will “prevent the insured person from achieving maximal recovery from the minor injury if… subject to the $3,500 limit”.
Parties’ Positions
8The applicant submitted that the accident left her with chronic pain and ongoing psychological distress. Evidence of these injuries include a clinical record from one of her family physicians, i.e., Dr. Rajinder Atwal. Specifically, in a record dated March 4, 2016, Dr. Atwal detailed the applicant’s complaints of pain, headaches, and poor sleep. The applicant also highlighted the high blood pressure reading from this visit as evidence that her pre-existing hypertension was exacerbated by the accident. In regard to her complaint of psychological distress, the applicant relied on the findings from Dr. Romeo Vitelli. Finally, the applicant claimed that a later diagnosis of carpal tunnel syndrome is connected to the accident.
9The respondent contended that the applicant only suffered minor injuries from the subject accident: e.g., the applicant has not been prescribed any medications for her accident-related injuries; she stopped attending physical treatment shortly following the accident; and her psychological distress had resolved itself within months of the accident. In regard to her submission about hypertension, the respondent highlighted the lack of documentation linking this condition to the accident.
10For the following reasons, I find that the applicant will be held to the funding and treatment limits of the MIG.
Chronic Pain
11Though chronic pain may be an injury that falls outside of the MIG, the evidence before me suggests that any residual pain from the accident is a clinically associated sequelae to her otherwise minor injuries.
12First, there is little indication that the applicant’s post-accident activity levels have changed in any significant way. For example, the applicant has carried on with her pre-accident employment with few changes. She has also reported that her activities of daily living have largely remained the same, save for requiring some help from her adult daughter.
13Second, the clinical records of her family physicians provide little evidence of lasting, accident-related pain.
14For example, following Dr. Atwal, the applicant began seeing a new family physician named Dr. Carolyn Tam. Yet, during their first meeting together on March 2, 2017, there is no record that the pair discussed the accident. Dr. Tam also reported during a later visit on May 18, 2017 that there was no issue with the range of motion in the applicant’s neck, back, and shoulders. She did note tightness in the neck and a “painful arc” in the shoulders, but, ultimately, her provisional assessment was a soft tissue injury captured under the MIG: i.e., “probable rotator cuff tendinopathy”.
15Finally, any accident-related pain appears to have dissipated shortly thereafter. That is, during her assessment with the respondent’s psychological assessor (i.e., Dr. Janet Clewes) about five months after the accident, the applicant stated that “she does ‘not really’ suffer from significant pain symptoms at this time.” She also made a similar comment during the respondent’s functional abilities evaluation conducted that same month.
16I would note that, during the respondent’s orthopaedic assessment, the applicant stated that she would occasionally experience significant neck and lower back pain. However, beyond the fact that this assessor did not find any evidence of accident-related impairments falling outside of the MIG, the majority of the medical evidence before me still suggests (on a balance of probabilities) that this pain is a clinically associated sequelae to her otherwise minor injuries.
Psychological Impairment
17Evidence of the applicant’s psychological distress can be found in a psychological consultation report prepared by Dr. Vitelli (dated August 3, 2016). In this report, Dr. Vitelli diagnosed the applicant with adjustment disorder, and his psychometric testing revealed moderate levels of anxiety and depression. Similar findings are then made by Dr. Vitelli in one of the treatment plans currently being disputed (dated May 4, 2016). Specifically, in this plan’s “Additional Comments” section, Dr. Vitelli detailed issues that the applicant disclosed about her post-accident mood, energy levels, sleep patterns, etc.
18Dr. Vitelli’s findings can be contrasted with those from the respondent’s assessor who found no evidence of psychological distress during an examination in June 2016. In fact, the applicant herself reported no significant psychological symptoms during this assessment, and the limited psychometric testing that Dr. Clewes used also produced no indication of any psychological impairment.
19Faced with competing reports, I ultimately find Dr. Clewes’s report to be a more compelling account of the applicant’s psychological condition. I base this finding largely on the fact that these results have been corroborated by the clinical notes and records before me. For example, on March 4, 2016 (i.e., less than two weeks before Dr. Vitelli’s assessment), Dr. Atwal described the applicant’s psychological symptoms as “very mild”. Then, on April 23, 2016, the applicant informed Dr. Atwal that “the anxiety, depression and insomnia were resolved.” In fact, a later clinical record from Dr. Tam (dated May 18, 2017) noted that a depression screen for the applicant was “negative”.
20I would also add that, aside from Dr. Vitelli’s reports, the applicant has provided virtually no other evidence of psychological distress. For example, a Disability Certificate from February 20, 2016 does mention “Other sleep disorders” and “Nightmares” in the list of impairments, but there is no indication of any mood or motivation concerns.
21Taken together, I do not find that the applicant has demonstrated (on a balance of probabilities) the existence of a psychological impairment.
Pre-accident Hypertension
22As noted above, an insured person can also be removed from the MIG if they are able to demonstrate that a pre-accident medical condition will prevent “maximal recovery” if held to the financial limit of $3500.00. Put another way, it is not enough for an applicant to demonstrate that they had a pre-accident condition, but an applicant must also indicate why this condition will prevent “maximal recovery”.
23Therefore, I am not satisfied that the applicant has provided any indication for why hypertension will impede her ability to recover under the financial limit of the MIG. Instead, she appears to be arguing that, since the medical benefits under the MIG have been exhausted, any residual, accident-related impairments must be caused by this pre-existing hypertension. Without compelling medical evidence at least linking the applicant’s present condition to her hypertension, I do not accept this line of reasoning.
Carpal Tunnel Syndrome
24A clinical note from Dr. Ken Atwal (dated July 3, 2016) includes a diagnosis of “bilateral hand numbness”, and there are records suggesting an ongoing issue with “bilateral carpal tunnel syndrome” (e.g., an ultrasound of her wrists from June 8, 2018). However, these issues are soft tissue in nature, and, therefore, captured under the definition of a “minor injury”.
Applicability of the MIG
25Taken together, the applicant has not demonstrated (on a balance of probabilities) that she suffers from an accident-related impairment that would remove her from the MIG. Any injuries she sustained as a result of the accident are predominantly “minor” or clinically associated sequelae.
26Further, the applicant has not demonstrated that she suffers from a pre-accident, medical condition that will prevent her from achieving “maximal recovery” to warrant removing her from the MIG.
INCOME REPLACEMENT BENEFIT
27Section 5(1) of the Schedule states that an insured person is entitled to an income replacement benefit if they sustain an accident-related impairment that causes “a substantial inability to perform the essential tasks” of their pre-accident employment.
Parties’ Positions
28The applicant made few specific arguments about this benefit in her submissions. However, she did mention that her pre-accident role as housekeeper changed following the accident. She also highlighted the finding from Dr. Vitelli that her accident-related injuries “impact her ability to carry out her everyday activities and her tasks of employment.”
29The respondent challenged the applicant’s position by arguing that she did not miss any time from work following the accident. In fact, the respondent contended that her income tax returns evidence “a consistent increase in income.”
Analysis
30To determine whether the applicant suffers from a “substantial inability” to perform the essential tasks of his pre-accident employment, I must first identify what these tasks were. The applicant provided a statutory declaration shortly after the accident (i.e., sworn May 6, 2016), which detailed her pre-accident employment as follows:
I do housekeeping work for both ladies mentioned above, cooking, running errands, meal preparation. I was able to lift heavy things but cannot do lift anymore. However, I try my best to perform all my duties at work, but do them often with pain.
31Though I am satisfied that I possess enough information to determine the essential pre-accident tasks of her employment (e.g., cooking, cleaning, etc.), I am also satisfied that the applicant does not suffer from a “substantial inability” to perform said tasks. That is, as stated earlier on in her statutory declaration, the applicant “did not have any time off from work and my hours of work have not changed, but I do not lift heavy things at work.” This sentiment was also reflected in her comments during the functional abilities evaluation conducted in June 2016: “she has returned to work, but avoids some of the heavier household chores such as changing the bed sheets and doing heavier meals.”
32I accept that some of her heavier duties have been limited, and I do not downplay the difficulty of working through ongoing pain. However, this admission that she has continued to work since the accident runs directly counter to the standard that the applicant is required to meet for entitlement to an income replacement benefit. Put another way, the applicant’s admission that she has been able to continue working (albeit with minor modifications) is proof that she does not suffer from a “substantial inability to perform the essential tasks” of her pre-accident employment. As such, I find that the applicant has not demonstrated that she is entitled to an income replacement benefit.
CONCLUSION
33The applicant has not demonstrated that she should be removed from the funding limit under s. 18(1) of the Schedule. As such, she has not demonstrated her entitlement to any of the disputed treatment plans.
34The applicant has not demonstrated that she is entitled to an income replacement benefit.
35No interest is owing.
Released: December 31, 2019
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.