N.S. v. The Dominion of Canada General Insurance (Travelers Insurance Canada), 2020 CanLII 27390

Citation: N.S. vs. The Dominion of Canada General Insurance (Travelers Insurance Canada), 2020 ONLAT 19-000916/AABS

Tribunal File Number: 19-000916/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:

N.S.

Applicant

and

The Dominion of Canada General Insurance (Travelers Insurance Canada)

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Adjudicator

APPEARANCES:

Counsel for the Applicant:

Rozlien Brikha

Counsel for the Respondent:

Erin Morgan

HEARD:

In Writing on: February 27, 2020

OVERVIEW

1N.S. was injured in an automobile accident on October 11, 2016 and sought benefits from the respondent, Travelers, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). N.S. applied for medical and rehabilitation benefits that were denied by Travelers because it determined her injuries were predominantly minor and therefore subject to the Minor Injury Guideline (“MIG”). N.S. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES TO BE DECIDED

2The following issues are in dispute:

(i) Are the applicant’s injuries predominantly minor injuries, as defined by the Schedule, and therefore subject to treatment within the Minor Injury Guideline?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $338.44 for physical therapy, recommended by The Physical Therapy Institute in a treatment plan submitted January 18, 2017, and denied by the respondent on January 27, 2017?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $2,268.02 for massage therapy, recommended by The Physical Training Institute in a treatment plan submitted April 11, 2017, and denied by the respondent on April 24, 2017?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $1,771.31 for treatment documentation and travel to and from assessments, recommended by Oshawa Physiotherapy in a treatment plan submitted July 7, 2017, and denied by the respondent on July 26, 2017?

(v) Is the applicant entitled to receive a medical benefit in the amount of $668.50 for physiotherapy, recommended by Movement Physiotherapy in a treatment plan submitted July 4, 2017, and denied by the respondent on July 12, 2017?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

(vii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3I find N.S. has not demonstrated, on a balance of probabilities, that her impairments warrant removal from the MIG. As the MIG limits have been exhausted, N.S. is not entitled to payment for the treatment plans in dispute.

ANALYSIS

Applicability of the Minor Injury Guideline

4The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500, however, if N.S. can provide compelling evidence that she has pre-existing conditions documented by a medical practitioner prior to the accident that prevent maximal medical recovery under the MIG, she may receive treatment outside of the limits. N.S. must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find the medical evidence indicates that N.S. does not suffer from an impairment that warrants removal from the MIG.

5N.S. submits that the impairments she sustained as a result of the accident—described in the OCF-3 as headaches, dizziness, sprain and strain of the SI joint, lumbar and other vertebral disc disorders with radiculopathy, WAD II with neck pain and contusions of the shoulder and upper arm and pain that has now allegedly become chronic—warrant treatment beyond the MIG. N.S. relies on the OCF-3 (which indicated she could not perform the essential tasks of her employment and that she met the non-earner benefit test, although these benefits are not being claimed), the clinical notes of her family physician, and an “Abilities Form” (outlining her restrictions and that she is unable to work due to her back pain and various prescription summaries) as evidence that her impairments are not “minor injuries” as defined in the Schedule. Specifically, N.S. submits that her chronic pain removes her from the MIG.

6In response, Travelers submits that the injuries alleged by N.S. are all soft-tissue in nature and fall within the definition of minor injuries under the Schedule. Travelers relies on the s. 44 report of Dr. Marchuk, who diagnosed N.S. with “WAD II, cervicothoracic bilateral shoulder myofascial dysfunction, worse on the right, lumbar musculoligamentous dysfunction, right sacroiliac joint dysfunction, and bilateral knee patellofemoral joint dysfunction.” Travelers relies on the report’s determination that N.S. had reached maximum medical recovery and that her injuries fell within the MIG. Travelers submits that N.S. has not provided compelling evidence of a pre-existing medical condition that would prevent her from recovering within the MIG limits. Similarly, she has not provided evidence that a medical professional diagnosed her with chronic pain, nor that even if there were a chronic pain diagnosis, that a chronic pain diagnosis should remove her claim from the MIG. Finally, it argues that N.S. does not have a diagnosed psychological injury.

7I agree with Travelers. On the evidence, I find the physical injuries documented in the OCF-3 and in the weeks and months after N.S.’s accident fall squarely within the definition of “minor injury” under the Schedule, as they are listed as pain and sprain and strain-type injuries. On the medical records, I agree with Travelers that there is little to suggest that N.S.’s physical injuries and resulting pain are severe enough to require treatment beyond the MIG. Even if I accept that N.S. has lingering back pain as alleged—I do note she has been taking pain medication prescribed since the accident—I find that she has not demonstrated that recovery from this pain is practically prevented if she is kept within the MIG.

8In a similar vein, I agree with Travelers that there is no formal diagnosis of either chronic pain or chronic pain syndrome and the mere mention of pain that is “chronic” by a physician is not an automatic ground for removal from the MIG. I find this is especially so where there is limited evidence of any functionally-disabling pain in the medical documentation before the Tribunal to justify removal from the MIG on that basis. As Travelers submits, N.S. has not provided a diagnosis that corroborates that she suffers from chronic pain or chronic pain syndrome and submissions alone are not sufficient to prove she suffers from chronic pain. While the clinical notes provided reference “chronic back ache,” I agree that this is not a diagnosis of chronic pain or chronic pain syndrome. While a formal diagnosis of chronic pain syndrome is not required to be removed from the MIG, I do find it revealing that neither N.S. nor her family physician has ever requested a chronic pain assessment to explore her complaints or investigate additional avenues for treatment beyond prescriptions.

9Further, I find the determinations in the OCF-3 and “Abilities Form” indicating that N.S. has a substantial inability to perform the essential tasks of her employment (and, more concerning, the opinion that she meets the stringent Non-Earner Benefit test as well) to be inconsistent with the injuries identified and the fact that she returned to work after the accident. Even on repeated visits, N.S.’s family physician only diagnosed her with musculoskeletal back strain. In addition, the x-rays taken on the same day as the accident were normal and the x-rays taken on April 18, 2017 were also normal. As N.S. did not submit evidence of a pre-existing medical condition documented by a health practitioner before the accident, there is nothing to suggest that the accident exacerbated existing impairments or that same would prevent her from achieving maximum medical recovery within the MIG limits.

10N.S. also submits that removal from the MIG is justified based on psychological issues that she alleges arose from the accident. In turn, she argues that these impairments justify removal from the MIG. To escape the MIG due to psychological impairments, N.S. must show that she has an actual psychological impairment and not just symptomology. A psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology or clinically-significant psychological distress. Here, I find that N.S. has not provided evidence sufficient to demonstrate that her psychological impairments prevent maximal medical recovery if she is kept within the MIG.

11N.S. reported nightmares and anxiety to her physician following the accident. However, as Travelers submits, her physician did not prescribe her medication for a psychological injury and there are no records of a psychological assessment or psychological treatment. I agree that there is no diagnosis of psychological injuries in the evidence before the Tribunal and there is no evidence that N.S.’s psychological complaints amount to anything other than minor accident-related sequelae.

12As a result, I find that N.S. has not satisfied her burden of proving that her accident-related impairments require removal from and treatment beyond the MIG.

Are the treatment plans reasonable and necessary?

13Having determined that N.S. can be properly treated within MIG, it is the Tribunal’s understanding that the MIG funding has been exhausted. Accordingly, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary.

Award

14The Order lists an award under s. 10 of O. Reg. 664 as being in dispute. However, N.S. did not provide submissions on how Travelers acted unreasonably in denying or withholding her benefits. Accordingly, I find an award is not appropriate.

CONCLUSION

15N.S. has not demonstrated, on a balance of probabilities, that her impairments warrant removal from the MIG. As the MIG has been exhausted, N.S. is not entitled to payment for the treatment plans in dispute.

Footnotes

1. 1O. Reg. 34/10, as amended.