Allan v. TD General Insurance Company, 2020 CanLII 115350

Allan v. TD General Insurance Company, 2020 CanLII 115350

Citation: Allan v. TD General Insurance Company, 2021 ONLAT 20-002359/AABS

Release date: 04/06/2021

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:

Beena Allan Applicant

and

TD General Insurance Company Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Ilya Kirtsman, Counsel

For the Respondent: Naina Tandon, Counsel

HEARD: by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on December 16, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline ?
2. Is the applicant entitled to $1,468.00 for physiotherapy services, recommended by Lijo Perumpallil, in a treatment plan (OCF-18), submitted on May 24, 2018, denied on June 13, 2018?

The following were added at the case conference:

3. Is the applicant entitled to $1,290.00 for physiotherapy, recommended by Clinic Medifat, in a treatment plan, dated on April 3, 2020, denied on May 6, 2020?
4. Is the applicant entitled to the assessments recommended by Dr. Erin Langis, as follows: (i) $2,200.00 for psychological services, in a treatment plan, dated on April 3, 2020; denied on May 6, 2020 and (ii) $3,792.26 for psychological services, in a plan, dated on July 2, 2020, denied on July 14, 2020?
5. Is the applicant entitled to $2,712.00 for a physiatry assessment, recommended by Omega Medical, in a treatment plan, dated on May 13, 2020, denied on May 25, 2020?
6. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline ?

4The applicant is not entitled to any claim for any benefits for physiotherapy services, psychological services, or psychological/physiatry assessments as claimed under paragraph [2] above.

5The applicant is not entitled to any award.

6The applicant is not entitled to any interest.

BACKGROUND

7The applicant was involved in an accident on December 16, 2017 where her vehicle was rear ended at a stop light. No hospitalization was needed for the applicant. No medical personnel or police attended the scene. After the accident, she complained of low back pain, neck pain, psychological distress and sleep difficulties.

8At the time of the accident the applicant was working as a child and youth worker for children with disabilities/autism. She was off work for several days post- accident, but returned to work, with some modifications. She decided to not take on certain types of children as clients due to their behaviour and size, so that her neck pain would not be exacerbate The applicant six months after the accident reduced the hours of her regular job, to take on a second job as an educational assistant at a primary school

9The applicant attended her family doctor, Dr. Tang on December 18, 2017, who referred her for physiotherapy. Dr. Tang also outlined in his clinical notes, pre-accident medical issues being dizziness; frontal headache, right shoulder pain, pain in the right arm, left elbow hand and wrist, right foot/heel pain on different occasions during 2015-2017.¹

10Dr. S. Tu, general practitioner, on an IE examination on June 1, 2020,diagnosed the applicant with an “ acute exacerbation of chronic pre-existing right shoulder pain as a direct result of the accident”.² He noted the applicant suffered uncomplicated soft tissue injury from the accident. Dr. Tu noted that the applicant, even with the chronic pain was still functional, able to share all house chores (including cooking, cleaning, laundry etc.,) with husband, was independent in personal hygiene activities and still worked regular hours and duties. Dr. Tu noted that the pre-existing medical conditions did not prevent the applicant from achieving maximal recovery of her minor injury within the $3,500.00 MIG limit.³

11Dr. Robert Hastings, Physiatrist, opined that the injuries sustained by the applicant were outside the MIG.⁴ Dr. Hastings examination did not note any neurological or musculoskeletal deviations , that the active range of motion was full and pain free in her shoulders and that the neurological examination was normal

12The applicant has access through her benefits with Manulife Insurance Company for psychological treatment but didn’t take any treatment.

13The applicant on December 18, 2017 submitted an OCF-1 indicating that she had no pre-existing conditions⁵ On December 23, 2017, the applicant’s treating physiotherapist Dr. L.G. Perumpallil submitted an OCF-23 noting that there were no pre-existing conditions and that the applicant suffered sprain and strain.⁶Dr. Perumpallil submitted an OCF-3 dated May 24, 2018 indicating that the applicant suffered soft tissue injury in the accident and that she was able to carry on a normal life engaging in caregiving activities, household and home maintenance activities.⁷ Dr. Perumpalli recorded on December 1, 2020 that the applicant did not have much of an issue with pain and was doing all of her home exercises⁸

14The applicant saw Dr. E. Langis psychologist, in June 2020, on a section 25 assessment. Dr. Langis diagnosed her with: Other Specified Trauma and Stressor Related Disorder and Somatic Symptom disorder with Predominant Pain, Persistent, Moderate. Dr. Langis further noted that her injuries do not fall within the MIG.⁹ The applicant had reported to Dr. Langis that she was experiencing a variety of emotional and psychological difficulties.

15The applicant had a psychological assessment with Dr. T. Seon, psychologist, on July 16, 2020. ¹⁰ Dr. Seon concluded that the applicant had denied experiencing any significant symptoms of anxiety, depression, or posttraumatic stress and any significant psychological impairment that negatively interfered with the applicant’s social, occupational or overall level of functioning. Dr. Seon noted that any psychological injuries sustained in the accident were minor.

16Dr. Seon on August 2, 2020 did a paper review of Dr. Langis’s documentation, and his opinion remained unchanged.

ANALYSIS

Applicability of the MIG

17Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 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.”

18An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

19The applicant submits that she had pre-existing physical and psychological issues that were aggravated by the accident, and that these issues cannot be treated within the MIG limits of $3,500.00.

20In response, the respondent submits that the applicant did not have pre-existing physical and psychological issues that were aggravated by the accident and that in any event, any issues can be treated within the MIG limits of $3,500.00.

21I agree with the respondent’s position. The evidence is clear, from the OCF-1 dated December 18, 2017, and the OCF-23 dated December 23, 2017 that there were no real pre-accident conditions. The OCF-3 dated May 24, 2018, indicated that the applicant suffered soft tissue injury in the accident and that she was able to carry on a normal life engaging in caregiving activities, household and home maintenance activities. Dr. Perumpalli recorded on December 1, 2020 that the applicant did not have much of an issue with pain and was doing all of her home exercises.

22The medical evidence of Dr. Tu, Dr.Seon, Dr.Harris, and Dr. Perumpalli all indicate soft tissue injury within the MIG. There is no indication that the applicant’s pre-existing conditions, for example her persistent right shoulder/neck pain flare ups, would prevent maximal medical recovery, if kept within the MIG.

23The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. I find that any right shoulder pain that existed pre -accident or post accident is not causing functional impairment. Dr. Perumpallil noted that the applicant was able to carry on a normal life engaging in caregiving activities, household and home maintenance activities. Dr. Perumpalli recorded on December 1, 2020 that the applicant did not have much of an issue with pain and was doing all of her home exercises¹¹ The applicant was also able to do two jobs. This evidence contradicts part of the evidence of Dr. Hastings analysis, of the right shoulder pain affecting functionality.

24I find that the applicant has no functional impairment that would take her out of the MIG.

25Finally, an applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant asserts that her psychological impairments justify removal from the MIG. There is no medical evidence suggesting any psychological impairment. Dr. Langis ‘s report is mostly based on self reporting by the applicant. The applicant family doctor at no time made any referral for the applicant to get psychological treatment. The applicant had a psychological assessment with Dr. T. Seon, psychologist, on July 16, 2020. The applicant denied to Dr. Seon that she was experiencing any significant symptoms of anxiety, depression, or posttraumatic stress or had any significant psychological impairment that negatively interfered with her social, occupational or overall level of functioning. Dr. Seon also noted that any psychological injuries sustained in the accident were minor. .¹² I accept the report of Dr. Seon over the report of Dr. Langis. The applicant’s family doctor never referred the applicant for psychological services and the applicant never exercised her right to get psychological assistance with Manulife Insurance Company. This supports what Dr. Seon noted in his report, that the applicant denied experiencing any psychological impairment.

26I find the applicant did not sustain any psychological impairment as a result of the accident.

27Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that their accident-related impairments warrant removal from the MIG.

28Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required.

Section 10 Award

29The applicant also sought an award under s. 10 of O. Reg. 664, submitting that the Tribunal may award up to 50% of the total benefits payable, if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I find an award is not appropriate, because no benefits are owing.

CONCLUSION

30The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.

Footnotes

1. 1Tab 4 Brief of Documents
2. 2Tab 17 Brief of Documents Report of Dr. Tu dated July 29, 2020
3. 3Ibid 2, P8,9
4. 4Tab 19 Report of Dr. Hastings dated July 7, 2020.P3,4
5. 5Tab 4Application for accident benefits December 18, 2017
6. 6Tab 5-OCF-23 dated December 23, 2017
7. 7Tab 7 Disability Certificate dated May 24, 2018
8. 8Tab 10 P 29 Clinical Notes of Dr. Perumpallil dated December 1, 2020
9. 9Tab 12, P9 Psychological Assessment Dr. Erin Langis dated June 3, 2020
10. 10Tabs 13, 14 Psychological Assessment Report of Dr. Terra Seon, dated July 29, 2020
11. 11Tab 10 P 29 Clinical Notes of Dr. Perumpallil dated December 1, 2020
12. 12Tab 15 Psychology Paper Review of. Dr T. Seon dated August 4, 2020