Citation: Kaur. v. The Dominion of Canada General Insurance Company (Travelers), 2021 ONLAT 19-008151

Release date: 03/25/2021

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:

Jaswinder Kaur

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Alex Nikolaev, Counsel

For the Respondent:

Sara Baum, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Jaswinder Kaur (“applicant”), was involved in an automobile accident on October 18, 2018 (“accident”) and suffered injuries. The applicant was 25 years of age at the time of the accident.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by The Dominion of Canada General Insurance Company (Travelers) (“respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The respondent determined that 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 Guideline (“MIG”).² The respondent also submits that, even if the MIG is found not applicable, the applicant has not established that the disputed treatment plan is reasonable and necessary. The applicant’s position is the opposite.

ISSUES

4The issues to be decided in this hearing are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?³

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,536.87 for physiotherapy treatment recommended by Dr. P. Badwall HealthMax Physiotherapy, in a treatment plan (OCF-18) submitted on March 29, 2019 and denied on May 9, 2019?

iii. Is the applicant entitled to the cost of medication, in the amount of $13.55 in a treatment plan (OCF-18) submitted on May 6, 2019 and denied on May 29, 2019?⁴

iv. Is the applicant entitled to interest on any overdue payment of benefits?

v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?⁵

RESULT

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plan in the amount of $3,536.87 for physiotherapy. The applicant’s claim for $13.55 is dismissed. No interest is payable.

LAW

6The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.⁶

9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Are the Applicant’s Injuries In the MIG?

10I find that the applicant’s physical injuries are minor injuries because the weight of the medical evidence indicates that the applicant did not suffer any physical injuries other than soft tissue injuries resulting from the accident.

11The OCF-3, disability certificate, by Dr. Badwall, applicant’s chiropractor, dated April 25, 2019 list sprains and strains of the neck, thorax, lumbar spine, pelvis, shoulder joint together with whiplash. All of these physical injuries fall within the MIG. Dr. Badwall is not qualified to diagnose neurological or psychological conditions.

12The applicant sought treatment October 24, 2018 for the first time post-accident from her family physician Dr. Guirgus who diagnosed soft tissue injuries. July 2019 imaging of the applicant’s lumbar spine, SI joints, cervical and thoracic spine were all unremarkable. March 2020 imaging of the applicant’s lumbar spine revealed mild multi-level degenerative changes and imaging of her right shoulder revealed a mild joint sprain. In mid-2019, Dr. Guirgus diagnoses whiplash. Soft tissue injuries and whiplash fall within the MIG.

13Consistent with the findings of Dr. Guirgus, on March 2019 respondent’s family physician Dr. Mohammed also opined that the applicant suffered soft tissue injuries as a result of the accident as did respondent’s physiatrist Dr. Gordon in September 2020.

14I accept the opinions of Drs. Guirgus, Mohammed and Gordon over that of Dr. Dessouki, respondent’s physiatrist, who diagnoses myofascial injuries to the cervical spine, chronic with irritation of the right upper fibers of trapezius, levator scapulae and rhomboid major and minor muscles, right shoulder impingement syndrome, myofascial injuries to the lumber spine, chronic with secondary mechanical lower back pain, bilateral sacro-iliac joint dysfunction and post-traumatic headaches, mixed type with exacerbation of pre-existing migraine headaches and stated that the applicant requires treatment outside of the MIG. Dr. Dessouki’s opinion is given without any review of Dr. Guirgus’ clinical records, according to the report, and is made some 19 months post-accident. The weight of the medical evidence is that physically, the applicant suffered soft tissue injuries as a result of the accident.

15I find that the applicant’s physical injuries from the accident within the definition of “minor injury”. However, the applicant submits that her pre-existing issues with her neck, back, right shoulder and headaches, her chronic pain and psychological issues take her out of the MIG.

Does the Applicant have pre-existing issues with her neck, back, right shoulder and headaches that would remove her from the MIG?

16I find that the applicant has brought forward no compelling evidence provided by a health practitioner that was documented before the accident of a pre-existing back injury that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit.

17The applicant submits that she received imaging on her neck and back five days before the accident, was receiving treatment at Power Flow Chiropractic two days before the accident for neck, shoulder and headaches, complained of neck pain to her chiropractor on the day of the accident and complained of worsened neck pain, worsening headaches and worsening right should pain post-accident as evidence of pre-existing medical conditions.

18The respondent argues that s. 18 (2) of the Schedule contains a two-part test that requires the applicant to establish not only compelling evidence of a pre-existing medical condition documented by a health practitioner before the accident, but, also that the pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury if they are subject to the limit of the MIG. The respondent relies on several Tribunal cases⁷ and argues that the applicant has not met the two-part test in s. 18 (2).

19I agree with the respondent that the applicant has not met this two-part test.

20Regarding the first part of the test, the applicant has not put forward any pre-accident records of Dr. Guirgus, or any other physician, indicating she sought treatment pre-accident for her neck, back, shoulder or headaches before the accident. The OHIP summary indicating imaging five days before the accident, without any further medical information, is not enough to establish a pre-existing condition. Similarly, receiving treatment from her chiropractor several days before the accident for neck, shoulder and headaches, without further medical information, is not enough to establish a pre-existing condition. Complaints of neck pain to her chiropractor on the day of the accident and complaints of worsened neck pain, worsening headaches and worsening right shoulder pain post-accident do not establish pre-existing medical conditions. Although Dr. Guirgus noted in late 2018 the applicant’s history of migraines and that she had low back pain before, Dr. Guirgus gives no specifics about when these started. As a result, the applicant has failed to establish the existence of any pre-existing medical conditions.

21In the absence of evidence establishing the first part of the test, the second part of the test cannot be met, specifically that any of her alleged pre-existing conditions prevent her from achieving maximal medical recovery within the MIG.

22Further, the self-reporting of the applicant to Dr. Guirgus post-accident shows that in November 2018, the applicant reported 70 percent improvement in her symptoms and in December 2018 described her overall condition as good. Still further, both Drs. Gordon and Mohammed report the applicant had no prior medical conditions. The applicant’s chiropractor cannot diagnose pre-existing medical conditions.

23I therefore find there is insufficient medical evidence before me that establishes the applicant should not be subject to the MIG because of any pre-existing issues with her neck, back, right shoulder and headaches.

Does the Applicant have psychological impairment caused by the accident that would remove her from the MIG?

24The applicant submits that her psychological issues such as anxiety take her out of the MIG. In reply, the applicant submits she has PTST.

25The respondent submits that the applicant must prove that her psychological complaints are not merely psychological sequelae but must prove that she sustained an actual psychological impairment as a direct result of the accident.⁸

26I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from psychological impairment caused by the accident justifying treatment beyond the MIG.

27There is no record of the applicant making any accident-related psychological complaints until 11 months post-accident. In September 19, 2019, the applicant reported anxiety since the accident to her pain clinic physician Dr. Kadic-Mucevic. In January 2020, the applicant reported driving anxiety since the accident to Dr. Guirgus who recommended counselling and therapy. There is no evidence that either of Drs. Kadic-Mucevic and Guirgus referred the applicant to any mental health specialist. Dr. Kadic-Mucevic diagnosed anxiety. The applicant’s psychological symptoms are treated with prescription medication. There is no evidence before me that the applicant attended psychological counselling and therapy.

28As a result, there has been no persuasive medical evidence put forward by the applicant to support her submission that suffers she suffers from psychological impairment caused or exacerbated by the accident justifying treatment beyond the MIG.

Does the applicant have chronic pain as a result of the accident?

29The applicant submits that her diagnosed chronic pain condition should remove her from the MIG.

30The respondent submits that a treating physician’s mention of a chronic pain condition is not sufficient to establish the impact on functionality⁹ and impairment of the applicant’s functionality as a result of the accident must be established by medical evidence.

31The applicant submits in reply that her chronic pain has caused functional impairments as reported by Power Flow Chiropractic Clinic, her chiropractors, Dr. Guirgus, Dr. Dessouki, Care Plus Physiotherapy and as demonstrated by her dependence on prescription medication and injections, and the fact that she has not worked since April 30, 2020 due to her accident related injuries.

32I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain justifying treatment beyond the MIG.

33Dr. Guirgus did not refer the applicant to a pain clinic until she asked for a referral in August 2019. On the day the referral was made, her physician noted the applicant’s report of neck and upper back pain, but, also that the applicant’s spine x-ray was normal, her neck and back were normal by inspection, not tender, free range of motion to neck and back, normal shoulders movement, normal tone, power and reflex of upper and lower limbs. Dr. Guirgus noted that she also discussed the side effects of medication with the applicant.

34Dr. Kadic-Mucevic assessed the applicant in September 2019 and diagnosed “status post trauma-myofascial pain” but not chronic pain syndrome.

35Although the applicant submits that she has functional impairments as reported by Power Flow Chiropractic Clinic, her chiropractors, Dr. Guirgus, Dr. Dessouki, Care Plus Physiotherapy and as demonstrated by her dependence on prescription medication and injections, and the fact that she has not worked since April 30, 2020 due to her accident related injuries, the evidence submitted by the applicant is unpersuasive for the following reasons.

36The reports from her chiropractors and physical therapists are largely based on the applicant’s self-reporting of pain and functional limitations.

37Dr. Guirgus’s notes in August 2019 are not consistent with chronic pain and functional limitations. To the contrary, Dr. Guirgus notes the applicant’s spine x-ray was normal, her neck and back were normal by inspection, not tender, free range of motion to neck and back, normal shoulders movement, normal tone, power and reflex of upper and lower limbs.

38Dr. Dessouki’s report is given little weight because, as discussed above, Dr. Dessouki did not review Dr. Guirgus’ clinical records and is made some 19 months post-accident.

39The applicant did not point to any medical opinion that she is “dependent” on prescription medication.

40There is no evidence from the applicant’s employers that she is unable to work due to her accident related injuries even though the applicant suggests that her pain is caused by prolonged sitting at work. There is no indication from her physicians that they have advised the applicant against returning to work or that the applicant is unable to work as a result of her injuries sustained in the accident.

Is the treatment plan for $3,536.87 for physiotherapy treatment reasonable and necessary?

41The respondent submits that it has approved all benefits up to the $3,500.00 MIG limit. The applicant did not dispute this in her reply submissions.

42Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether this treatment plan is reasonable and necessary.

Interest

43Interest is not payable as no benefits are payable.

ORDER

44For the reasons outlined above, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plan in the amount of $3,536.87 for physiotherapy. The applicant’s claim for $13.55 is dismissed. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3This issue was added at the case conference according to the Tribunal’s case conference Report made January 22, 2020 and both parties addressed it in their submissions for this hearing. As a result, I am satisfied this issue is in dispute between the parties and is intended by both parties and the Tribunal to be dealt with at this hearing. Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, October 2, 2017 (“Rules”) requires me to facilitate a fair, open and accessible process to allow effective participation by all parties while ensuring efficient, proportional and timely resolution of the merits of the proceeding. Rule 17 allows me to correct an error and to clarify an Order that contains a misstatement. Therefore, although this issue was left out of the Tribunal’s Order made January 22, 2020, under Rules 3 and 17, I am clarifying the Tribunal’s January 22, 2020 Order to add this issue and I will determine it in this hearing to ensure an efficient and timely resolution of the dispute.
4. 4The respondent submitted proof of payment of this $13.55 on May 30, 2019. The applicant did not argue otherwise in reply. As a result of the proof of payment, this claim is dismissed.
5. 5Withdrawn at this hearing as per the applicant’s submissions dated October 19, 2020, para. 2.
6. 6Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
7. 7Applicant v. The Co-Operators, 2018 CanLII 81959 (ON LAT); H.A. and Travelers Insurance, Re, 2019 CarswellOnt 6139 (ON LAT).
8. 8H.A. and Travelers Insurance, Re, 2019 CarswellOnt 6139 (ON LAT).
9. 9J.J. v. Allstate Insurance Company of Canada, 2019 CanLII 101599 (ON LAT).