D.R. v. The Guarantee Company of North America, 2020 CanLII 30405

Citation: D.R. vs. The Guarantee Company of North America, 2020 ONLAT 18-009637/AABS

Tribunal File Number: 18-009637/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:

D. R.

Applicant

and

The Guarantee Company of North America

Respondent

DECISION

PANEL:

Brian Norris, Adjudicator

APPEARANCES:

For the Applicant:

Linda To, Counsel

For the Respondent:

Jamie Min, Counsel

HEARD:

In Writing on June 3, 2019

OVERVIEW

1The applicant was injured in an automobile accident on May 23, 2015 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").

The respondent determined the applicant's injuries fell within the Minor Injury Guideline (MIG) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Has the applicant sustained predominantly minor injuries as defined under the Schedule?

2. Is the applicant entitled to a medical benefit in the amount of $1,285.42 for chiropractic treatment recommended in a treatment plan dated August 23, 2017?

3. Is the applicant entitled to a medical benefit in the amount of $2,963.76 for chiropractic treatment recommended in a treatment plan dated September 19, 2017?

4. Is the applicant entitled to an examination expense in the amount of $2,253.57 for a psychological assessment recommended in a treatment and assessment plan dated July 28, 2017?

5. Is the applicant entitled to an examination expense in the amount of $2,259.69 for a chronic pain assessment recommended in a treatment plan dated October 28, 2017?

6. Is the applicant entitled to an examination expense in the amount of $2,460.00 for a psychological assessment recommended in a treatment plan dated July 23, 2018?

7. Is the applicant entitled to an examination expense in the amount of $2,680.00 for an orthopaedic assessment recommended in a treatment and assessment plan dated October 3, 2018?

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

RESULT

3The applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.

4The applicant is not entitled to the disputed treatment plans or interest.

BACKGROUND

5The applicant was the driver of a vehicle which struck a vehicle that was performing a U-turn. She went to the collision reporting centre and then the hospital following the accident. At the hospital, she was examined and released after x-rays showed no evidence of a fracture.

6Following the accident, the applicant engaged in treatment pursuant to the MIG at Medlife, which the respondent funded. She claims rotator cuff tendinopathy, psychological injuries, and prolonged neck, back and shoulder pain precludes her recovery within the MIG and the $3,500.00 funding limit. She feels her injuries were wrongly characterized as predominantly minor injuries and claims entitlement to the disputed treatment and assessment plans.

THE MINOR INJURY GUIDELINE

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8If an insurer deems an applicant's injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

9Upon review of the evidence and submissions, I find the applicant has sustained predominantly minor injuries as defined by the Schedule and is subject to the $3,500.00 funding limit provided by section 18. My reasons are as follows.

Rotator Cuff Tendinopathy

10The applicant suffered from rotator cuff tendinopathy as a result of the accident and submits this is an injury which falls outside the minor injury definition, thus entitling her to treatment outside the MIG and the $3,500.00 funding limit. The respondent submits the rotatory cuff injury is included in the MIG.

11I agree with the respondent and find the applicant's rotator cuff tendinopathy is included in the minor injury definition. The MIG defines a sprain as an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear. The applicant's shoulder ultrasound report dated December 19, 2017 considered her tendinopathy to be mild and found "no full thickness tendon tear." Considering the definition and the findings, I conclude the applicant's tendinopathy falls within the minor injury definition.

Psychological Injuries

12The applicant claims to suffer from disrupted and inconsistent sleep and driving anxiety and infers these are injuries which are not included in the MIG and, as a result, she should not be subject to the MIG and the $3,500.00 funding limit. The respondent submits the applicant has made no psychological complaints to Dr. K. Mahnaz, her family physician, and reported she does not think counselling would be helpful to her.

13I find there is no compelling evidence demonstrating the applicant suffered from psychological injuries as a result of the accident. As noted by the respondent, Dr. Mahnaz's CNRs are absent of any complaints of a psychological nature. Likewise, Dr. Mahnaz's CNRs make no reference to any symptoms of a psychological injury or injuries such as driving anxiety or avoidance behaviour.

14The applicant's claims of psychological injuries are contradicted by the IE report by Dr. K. Lawson, psychologist, dated January 5, 2018. Dr. Lawson assessed the applicant and found that despite some irritability and feeling tired, the applicant's mood was good. The report notes the applicant reports feeling anxious while driving but has returned to it. Dr. Lawson concluded that the applicant's "current degree of psychological distress falls within the definition of a minor injury".

Chronic Pain

15The applicant submits the orthopaedic assessment report of Dr. M. West, dated November 14, 2018, inferring she suffers from chronic pain and requires treatment outside the MIG and the $3,500.00 funding limit on treatment. The respondent is critical of Dr. West and his report, and submits the applicant fails to meet the criteria for chronic pain.

16I find the applicant's ongoing pain falls within the definition of a minor injury.

17There is no evidence showing the applicant is impaired by ongoing pain. As noted by the respondent, since the accident the applicant has returned to college and started part-time employment. At all times the applicant has maintained independence with her self-care and activities of daily life. The applicant shows no overdependence on healthcare professionals or prescription medication.

18Before addressing Dr. West's report, I must acknowledge the respondent's unsubstantiated and inflammatory comments made about Dr. West in submissions. The comments, absent any evidence as was the case here, are unhelpful and unwelcome.

19I find Dr. West's report is unreliable and lacks the requisite information to support its conclusions. Dr. West concludes the applicant should not be subject to the MIG and the funding limit because she "developed concurrent psychological and emotional problems as a result of this accident" and "has developed a chronic pain syndrome." However, Dr. West's report is devoid of any psychological investigation and fails to address the basis for this diagnosis. Likewise, Dr. West fails to explain the basis for a diagnosis of chronic pain syndrome. Dr. West found the applicant suffered a closed head injury with concussion, but there is no evidence of such an injury in Dr. Mahnaz's CNRs or the hospital records where the applicant attended on the day of the accident. Additionally, Dr. West's examination found no neurological issues and, more importantly, found no functional impairment while conducting range of motion tests.

20I prefer the insurer's examination (IE) reports of Dr. Lawson and Dr. P. Jugnundan, physician. The applicant reported to Dr. Lawson that she did not strike her head during the collision, which is consistent with the Dr. Mahnaz's CNRs and the records from the hospital. Likewise, Dr. Jugnundan's report states the applicant reported not losing consciousness during the accident and denied any pre-existing impairment. Dr. Jugnundan found the applicant had rotator cuff tendinopathy but observed no abnormal findings. A physical examination revealed no range of motion impairments at all. Both Dr. Lawson and Dr. Jugnundan concluded the applicant's injuries fell within the minor injury definition.

THE DISPUTED TREATMENT PLANS

21I have found the applicant's injuries as a result of the accident fall under the minor injury definition and are subject to the MIG and the $3,500.00 funding limit on treatment. An analysis on whether the disputed treatment and assessment plans are reasonable and necessary is not required because they propose treatment outside the MIG and the $3,500.00 funding limit.

INTEREST

22The disputed treatment and assessment plans are not payable. Therefore, no payments went overdue and, pursuant to section 51, no interest is owed as a result.

CONCLUSION

23Based on the submissions and medical evidence before me, I find that the applicant's injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed by section 18 of the Schedule.

24The disputed treatment and assessment plans are not payable because they recommend treatment beyond the MIG and the $3,500.00 funding limit.

25No interest is owed.

Released: April 3, 2020

___________________________

Brian Norris

Adjudicator