Citation: M.M. vs. Allstate Canada, 2020 ONLAT 18-008485/AABS

Released Date: 04/14/2020 File Number: 18-008485/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:

[M.M.]

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Nathan Ferguson

APPEARANCES:

For the Applicant:

[M.M.], Applicant

Arash Goneh-Farahani, Paralegal

For the Respondent:

Brittanny K. Tinslay, Counsel

HEARD: In Writing

July 29, 2019

REASONS FOR DECISION

OVERVIEW

1The applicant, M.M., was involved in an automobile accident on July 16, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). M.M. suffered hand pain, neck pain and emotional upset she submits caused psychological impairment. M.M. sought medical benefits as a result.

2The respondent insurer denied the benefits on the basis that M.M.’s injuries fall within the Minor Injury Guideline (MIG) and are not reasonable and necessary. M.M. disagreed with this determination and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3Based on the available evidence, I find that M.M.’s injuries fall within the MIG and it is therefore unnecessary to consider whether the medical benefits in dispute are reasonable and necessary. M.M. is not entitled to interest on overdue benefits accordingly.

ISSUES

4The following are the issues to be decided, as per the case conference order of Adjudicator Corapi dated March 12, 2019 and confirmed in the motion order of Adjudicator Maedel on March 27, 2019:

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

ii. Is the applicant entitled to receive a medical benefit in the amount of $3,778.82 for physiotherapy services recommended by 101 Physio in a treatment plan submitted May 7, 2018 and denied by the respondent on May 17, 2018?

iii. Is the applicant entitled to receive a medical benefit in the amount of $3,039.84 for physiotherapy services recommended by New Wave Health Centre Ltd. in a treatment plan submitted May 14, 2018 and denied by the respondent on June 1, 2018?

iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Psychological Assessment, recommended by Toronto Central Diagnostics in a treatment plan submitted July 23, 2018 and denied by the respondent on July 27, 2018?

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

ANALYSIS

Applicability of the Minor Injury Guideline

5The MIG sets out the framework for treatment of “minor injuries”. The term “minor injury” is defined in section 3 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) establishes a monetary limit of $3,500.00 for recovery for medical and rehabilitation benefits for minor injuries.

6Section 18(2) of the Schedule allows treatment in excess of the $3,500.00 cap for insured persons with pre-existing medical conditions. To access these increased benefits, the insured’s health practitioner must provide compelling evidence that the insured person has a pre-existing medical condition—documented by a health practitioner prior to the accident—that will prevent the insured person from achieving maximal recovery if benefits are limited to the MIG cap.

7Additionally, psychological impairments fall outside the MIG if established. This is because the MIG only covers “minor injuries” and, as outlined above, the definition does not include psychological impairments.

8The onus to demonstrate entitlement beyond the MIG limits rests with the applicant, on a balance of probabilities.¹

Does M.M. Have Pre-existing Conditions or Chronic Pain that Remove her from the MIG?

9There is no evidence of any treatment for chronic pain or diagnosis of chronic pain from the date of the accident to the date of this hearing.

10Although the applicant raised a request for chronic pain assessment in submissions relating to this hearing (paragraph 24 of the Applicant’s Written Submissions), the clinical notes and records provided related to her ongoing care do not suggest that there was active treatment for pain at any point between an attendance at a Walk-In Clinic on July 19, 2016 and her next attendance for treatment related to pain on April 9, 2018 (more than 20 months later).

11The Disability Certificate, dated April 9, 2018, submitted by the applicant states: “[a]t this time, the duration of injury and impairment has become chronic”. However, the use of the word chronic in this instance is not expanded upon and does not include any detail regarding the applicant’s pain, or whether a diagnosis of chronic pain is intended. A list of symptoms is included in this document and these plainly relate to strains and sprains with the exception of mood disorder, insomnia and anxiety. That is, the preponderance of observed symptoms are in keeping with the definition of minor injuries. I will discuss the mood disorder, insomnia and anxiety symptoms later in this decision.

12I find that the evidence does not establish that the applicant experienced chronic pain as a result of this accident because there is no record of any consistent report of pain, or treatment relating to pain. In fact, the documents provided by the applicant demonstrate that she did not attend treatment of any kind for a prolonged period. Again, there is no diagnosis of chronic pain in the documentation before me. I find the evidence insufficient to remove M.M. from the MIG on the basis of her alleged chronic pain.

13There is also no evidence provided that suggests the presence of any documented pre-existing medical condition that would prevent maximal recovery if the applicant remained within the MIG. In the Disability Certificate dated April 9, 2018, the completing health practitioner was asked “Prior to the accident, did the applicant have any disease, condition or injury that affected his/her ability to perform the activities listed [above]” and responded “No”. In addition, the applicant’s Psychological Assessment Report dated August 17, 2018 confirms that she “was healthy prior to the MVA” (p.3).

14Therefore, I find on a balance of probabilities that the M.M. does not have chronic pain or pre-existing medical conditions which remove her from the MIG.

Does M.M. Have a Psychological Impairments that Remove her from the MIG?

15M.M. relies on the presence of psychological impairments attributable to this accident to remove her from the MIG. There are three references to such impairments in the documents before me.

16First, the applicant appears to have self-reported some symptoms to the hospital on the date of the accident (July 16, 2016). The hospital note indicates that the applicant was “emotionally upset/crying”. I do not consider this a diagnosis of a psychological condition or impairment. The applicant was not prescribed any medication to address these symptoms and according to the evidence before me attended no follow up of any kind until the Disability Certificate was completed on April 9, 2018. There is no reference to psychological impairment, or treatment for psychological impairment, described from the date of the accident until April 9, 2018.

17Second, on April 9, 2018, the Disability Certificate was completed with a list of symptoms. Those symptoms include: “Persistent mood [affective] disorders - depression, mood swings… Disorders of initiating and maintaining sleep [insomnias]… [and] Anxiety disorder, unspecified - fear driving, flashbacks”. No details of any objective testing or observations were provided which explains the symptoms and no treatment for these symptoms was described at this time.

18The respondent submitted that the Disability Certificate is completed by a Chiropractor, a medical practitioner that did not treat the applicant for any psychological impairment and who is not qualified to diagnose or treat psychological impairments. Thus, the respondent submits this evidence is insufficient to establish psychological impairment and should not be treated as persuasive in establishing a psychological impairment sufficient to remove the applicant from the MIG. I agree with the respondent’s submission.

19Finally, the applicant submitted a Psychological Assessment Report dated August 17, 2018 (based on an August 14, 2018 assessment). The report was completed by someone under the supervision of a psychologist; however, the applicant was not assessed directly or treated by the psychologist. The applicant’s first assessment related to psychological impairment took place more than two years after the accident.

20According to the report, the applicant was moderately impaired and her symptoms were consistent with: “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia, Situational (Driver) and Somataform Disorder”. Ten sessions of cognitive behavioural oriented psychotherapy were proposed.

21The respondent submits that the applicant is employed and in her employment is required to drive frequently. This is corroborated in the report. Although M.M. reported anxiety about driving, she continues to do so as necessary. While the applicant was not employed at the time of the accident, she has successfully found work as a financial advisor after the accident, despite her injuries and perceived limitations and despite a lack of any documented treatment or intervention from the date of the accident for a period of more than two years’ time.

22The respondent highlighted some discrepancy between the applicant’s self-report and the documentation provided. Specifically, the respondent stressed that the applicant reported a loss of consciousness to the assessor in the Psychological Assessment Report while the hospital notes provided from the date of the accident indicate there was no loss of consciousness. The respondent submits this inconsistency demonstrates that the evidence provided to the assessor may be unreliable and ought not to be given significant weight. The respondent also submits the assessor stands to gain from a finding that M.M. ought to be removed from the MIG and that the psychologist that supervised the report did not personally assess the applicant.

23I find that the evidence provided is insufficient in this instance to remove the applicant from the MIG for two essential reasons.

24First, there is a prolonged and total absence of any treatment or investigation relating to the applicant’s alleged psychological impairment. I find it difficult to reconcile the lack of any investigation or treatment with the notion that these impairments are significantly limiting.

25Second, the assessment provided was not performed directly by the completing psychologist and relies heavily on the applicant’s self-reporting. This unfortunately includes some discrepancy from objective documentation prepared at the time of the accident – specifically regarding her loss of consciousness. Although I do not consider this inconsistency determinative in isolation, I find it does undermine the reliability of the applicant’s self-report, which is in large part the basis of the psychological assessment, which was not provided to the reporting psychologist directly. Given the lack of direct assessment and the presence of inconsistency, I found the report was not persuasive especially in light of the passage of time without any corroborating report, or specific treatment of, these impairments.

26I find that M.M.’s ongoing function in attending work that requires her to drive regularly despite the report of phobia or anxiety, her inability to demonstrate any report of these symptoms between July 16, 2016 and April 9, 2018, and the lack of any recommended treatment until August 17, 2018 inconsistent with the notion that these impairments persisted throughout that time or limited her function significantly.

27It follows that I find M.M. has not demonstrated, on a balance of probabilities, that she sustained psychological impairments as a result of the accident that require access to treatment beyond the limits of the MIG.

Are the Treatment Plans and Assessment Reasonable and Necessary?

28The applicant bears the onus to prove entitlement. Having found that M.M. did not meet the onus to show that her injuries take her outside of the MIG, there is no need for me to conduct an analysis of whether the remaining medical benefits in dispute are reasonable and necessary.

Interest on Overdue Payments

29If payment of a benefit is overdue, the insurer shall pay interest on the overdue amount, pursuant to s. 51 of the Schedule. I find that no payments are overdue in this instance. Therefore, no interest is payable.

CONCLUSION

30For the reasons outlined above, I find that M.M.’s injuries are predominately minor injuries that fall within the MIG and she is therefore entitled to the $3,500.00 MIG limit for medical benefits.

31M.M. did not establish that she has a pre-existing medical condition or psychological impairment that prevents maximal recovery under the MIG. Therefore, she is not entitled to the treatment plans in dispute or interest on any overdue payment.

ORDER

32The application is dismissed.

Footnotes

1. 1Scarlett v. Belair Insurance Co., 2015 ONSC 3635 (Div Ct) at para 24