O.P. v. Intact Insurance Company, 2020 CanLII 27414

Citation: O.P. vs. Intact Insurance Company, 2020 ONLAT 18-010471/AABS

Released Date: 04/06/2020

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:

[O.P.]

Applicant

and

Intact Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Paul Gosio

APPEARANCES:

For the Applicant:

[O.P.], Applicant

Kim Mohammed-Sieudhan, Counsel

For the Respondent:

Simone Bilato, Counsel

HEARD: In Writing

June 24, 2019

OVERVIEW

1The applicant seeks a determination that her injuries fall outside the confines of the Minor Injury Guideline (“MIG”) and that she is entitled to a number of treatment and assessment plans.

2The applicant was injured in a motor vehicle accident on September 7, 2016. She applied for and received benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) up to the $3,500.00 cap placed on predominately minor injuries. The applicant then submitted additional treatment plans which the respondent denied as it takes the position that the applicant’s injuries are predominantly minor in nature and, as a result, no more medical and rehabilitation benefits were payable. The respondent also takes the position that the treatment plans are not reasonable and necessary.

3The applicant disagreed with the respondent’s decisions and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The applicant takes the position that she suffers from chronic pain and chronic pain syndrome, and that this removes her from the MIG. She also takes the position that the disputed treatment plans are reasonable and necessary as she requires ongoing treatment to help facilitate her recovery. The parties could not resolve the issues in dispute, so the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are in dispute:

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

II. Is the applicant entitled to a medical benefit in the amount of $2,613.04 for physiotherapy services recommended in a treatment plan submitted on March 31, 2017, and denied by the respondent on April 12, 2017?

III. Is the applicant entitled to a payment for the cost of examination in the amount of $1,999.28 for a psychological assessment recommended in a treatment plan submitted on February 7, 2017, and denied by the respondent on February 22, 2017?

IV. Is the applicant entitled to payment for the cost of examination in the amount of $3,174.70 for an Orthopaedic assessment recommended in a treatment plan submitted on May 14, 2018, and denied by the respondent on May 23, 2018?

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

RESULT

5Based on the evidence before me, I find that the applicant has sustained predominantly minor injuries as defined by the Schedule and, as a result, she is not entitled to the remaining benefits in dispute.

ANALYSIS

The Minor Injury Guideline

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

7The applicant bears the onus of establishing on a balance of probabilities that her injuries fall outside of the MIG.

Position of the Parties

8The applicant submits that she suffers from chronic pain and chronic pain syndrome removing her from the MIG.

9The applicant began experiencing neck pain, right shoulder pain, and back pain shortly after the accident. A Disability Certificate (OCF-3) was completed by Dr. Nalli, chiropractor, on September 14th, 2016, which identified the following accident-related injuries: whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, muscle strain, shoulder region, superficial injury of ear, disturbances of skin sensation, headaches, disorders of initiating and maintaining sleep [insomnias], nightmares and other anxiety disorders. The OCF-3 indicated that the applicant suffered a complete inability to carry on a normal life and was substantially unable to perform the essential tasks of her pre-accident employment. The OCF-3 also indicated that the applicant suffered a substantial inability to engage in her usual caregiving, housekeeping and home maintenance activities. The anticipated duration of the disability was noted as “more than 12 weeks.”

10The applicant met with her family doctor, Dr. Begum, on a number of occasions following the accident. Dr. Begum’s clinical notes and records note the applicant complained of ongoing neck, shoulder and back pain. Dr. Begum prescribed pain medication and recommended chiropractic, message and physiotherapy treatment. The applicant attended the Scarborough Health and Wellness Centre approximately 26 times from September 14, 2016 to July 14, 2017 for physiotherapy treatment. On May 8, 2018, Dr. Begum diagnosed the applicant with “Acute on Ch. LBP.” An x-ray of the lumbar spine, dated May 8, 2018, was unremarkable.

11On June 19, 2018, the applicant met with Dr. Getahun, orthopedic surgeon, for an orthopedic assessment. Dr. Getahun noted that the applicant presented with low back pain with radiation of pain into the right lower extremity down to the level of the calf. Dr. Getahun diagnosed the applicant with chronic myofascial strain of the lumbosacral spine with possible left-sided L4-L5 disc herniation, for which recommended physiotherapy.

12The applicant submits that the clinical notes and records of Dr. Begum support a chronic pain diagnosis because they document ongoing pain complaints beyond six months. Additionally, the OCF-3 confirms that she would require treatment beyond 12 weeks. Finally, the applicant submits that Dr. Getahun’s Orthopaedic Assessment Report confirms that she is suffering from chronic pain syndrome as her pain has persisted for over 21 months post-accident.

13The applicant submits that her chronic pain and chronic pain syndrome removes her from the MIG. To that end, she relies on the reconsideration decision in T.S. v. Aviva General Insurance¹ (“T.S.”). In T.S., Executive Chair Lamoureux stated the following:

The MIG also provides a "functional restoration model" for treating minor injuries. It outlines a structured 12-week treatment program for those injured in car accidents that sustain a minor injury. The MIG references treatment for 'Whiplash Associated Disorder' but indicates no reference on how to treat or diagnose chronic pain.²

…Chronic pain can be described as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being.³

…'Minor injury' does not encompass an impairment such as chronic pain because chronic pain is not included in the definition and does not fit into the MIG's 12 week treatment program...⁴

14The respondent submits that the applicant has not met her onus in establishing that her accident-related injuries fall outside the confines of the MIG. The respondent further submits that complaints of pain or discomfort alone are not enough to remove an applicant from the MIG unless there is a diagnosis of chronic pain and there is evidence of limitation or adverse effect resulting from the chronic pain. The respondent further submits that the applicant has failed to establish that she suffers from chronic pain or chronic pain syndrome and has failed to present any evidence of functional impairment.

15I agree with the respondent’s submission. An applicant is not automatically removed from the MIG as a result of ongoing pain alone. Ongoing pain must also be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on the individual’s well-being. A diagnosis of chronic pain without any discussion of the level of pain or its effect on the person’s functioning will not be sufficient to remove them from the MIG.

16In this case, the applicant has failed to establish that she suffers from chronic pain or chronic pain syndrome. No doctor has explicitly opined as such. Moreover, there is little evidence of any functional impairment or disability which has caused an adverse effect on the applicant’s well-being.

17Furthermore, the applicant has failed to establish that her pain has resulted in any functional impairment or disability which caused an adverse effect on her well-being. In fact, the evidence before me establishes that the applicant returned to work approximately four days after the accident as a pharmacy assistant. Since that time, she has been completing her regular duties without modification and has been working her regular hours. In addition, the applicant reported to Dr. Sharma (physician), who completed a Physician Assessment Report on May 24, 2017 on behalf of the respondent, that she continues to participate in meal preparation, home cleaning, grocery shopping, snow shoveling, and child care.

18As a result, I find that the applicant has failed to establish that her accident-related injuries are anything more than clinically associated sequalae and that she sustained a minor injury as defined by the Schedule.

CONCLUSION

19For the reasons outlined above, I have found that the applicant has not met her onus of establishing on a balance of probabilities that her injuries fall outside the confines of the MIG. Consequently, I have not considered whether the treatment plans in question are reasonable and necessary as the applicant has already received medical and rehabilitation benefits up to the $3,500.00 cap placed on predominantly minor injuries.

Footnotes

1. 117-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT)
2. 2Ibid. at para. 19
3. 3Ibid. at para. 23
4. 4Ibid. at para. 20