F.L. v. Intact Insurance Company, 2020 CanLII 34472

Citation: F.L. v. Intact Insurance Company, 2020 ONLAT 19-003248/AABS

Tribunal File Number: 19-003248/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8., in relation to statutory accident benefits.

Between:

F. L.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant: Ryan W. St. Aubin, Counsel

For the Respondent: Dylan Crosby, Counsel

HEARD by way of written submissions

OVERVIEW

1The applicant, F. L. (“applicant”) was involved in an automobile accident on July 12, 2016 (“accident”), and sought benefits from the respondent, Intact Insurance Company (“respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”).

2The respondent determined the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”)². The respondent also submits that even if the MIG is found not applicable, the applicant has not provided sufficient evidence that the disputed treatment plans are reasonable and necessary. The applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,268.02 for chiropractic treatment recommended by Dr. R. Singh of The Physical Therapy Institute in a treatment plan (OCF-18) submitted on March 9, 2017, and denied on October 11, 2017?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,004.96 for chiropractic treatment recommended by The Physical Therapy Institute in a treatment plan (OCF-18) submitted on May 9, 2017, and denied on May 19, 2017?

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

RESULT

4I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed.

BACKGROUND

5The applicant’s vehicle was struck on the driver’s side by another vehicle and as a result the applicant alleges that she sustained the following injuries: headaches, ringing in the ears, jaw pain, dizziness, sensitivity to light and noise, disorders of taste and smell, nausea, pain in her neck, left shoulder, left arm, low back, chest, thigh, hips, left leg, left knee, left foot, numbness in her left hand and finger, lower back, neck and shoulders, sleeping and memory difficulties, concentration difficulties, phobia, irritability, frustration, stress, fatigue and flashbacks.

6The applicant made a claim for accident benefits. The respondent characterized the applicant’s injuries as falling within the MIG and refused to pay for the disputed chiropractic treatment plans as they would exceed the MIG limit.

7The respondent submits it has approved $3,496.75 in medical treatment to date.

LAW AND ANALYSIS

The Minor Injury Guideline

8The MIG establishes a treatment framework available to injured person 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

9To request treatment above the $3,500.00 funding limit, the applicant must prove that her injuries do not fall within the definition of a minor injury. The applicant can establish that by:

A. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

B. Establishing an impairment sustained in the accident is not a predominantly minor injury.

10The onus is on the applicant to show that his or her injuries fall outside of the MIG³ on a balance of probabilities.

Did the applicant suffer minor injuries?

11The applicant submits that she should not be subject to the MIG because her injuries are not minor but are serious, chronic and limiting. She has ongoing pain and limitation at work and believes she requires treatment to manage her pain. She submits she has had chiropractic treatment since the accident and has found it helpful. In support of her submissions, the applicant put forward various medical reports and records including hospital records, Disability Certificate, OCF-3 from Mr. Kakkon, physiotherapist, records of her family doctor, Dr. DePaoli, her neurologist, Dr. Tullio , MRI records, the treatment plans in dispute and some employment documentation.

12The respondent submits the applicant has not proven that her injuries are not minor and there is no evidence of a pre-existing condition, diagnosis of chronic pain syndrome or psychological condition as the result of the accident, or at all, which would remove her from the MIG.

13I agree with the respondent and find that the applicant has not proven on a balance of probabilities that her injuries are not minor or that she has any condition which will prevent her from achieving maximal recovery within the MIG limits. It is the applicant’s onus to prove she is out of the MIG. The weight of the applicant’s medical evidence shows primarily sprain and strain type injuries and falls short of establishing that any impairments the applicant may have sustained in the accident are not predominantly minor injuries.

14The hospital records from the day of the accident show a diagnosis of “soft tissue injury”.

15The disability certificate completed by Mr. Kakkon dated July 25, 2016 records sprain and strain of lumbar spine, cervical spine, hip, knee and thoracic spine, headaches, whiplash associated disorder with complaint of neck pain.

16The applicant also submitted the records from Dr. DePaoli, her family physician, from September to December 2016. The records do not contain any persuasive medical evidence which would indicate the applicant should be removed from the MIG. The records tend to indicate the contrary – that the applicant’s injuries from the accident were minor. On September 19, 2016, Dr. DePaoli diagnosed lumbar strain; On November 22, 2016, he told the applicant that her MRI-spine was normal except for some swelling; and, on December 12, 2016, when the applicant complained to Dr. DePaoli of neck, shoulder and back pain and headaches, he noted that the plan was to continue therapy and referral to “physiatry”(sic). The applicant did not submit any psychiatric medical records at this hearing.

17Dr. DePaoli also completed a Purolator Functional Abilities Form dated March 19, 2018 that was completed by her family physician. I find this form to be of no assistance. It lacks medical specificity and recommends the applicant return to modified duties. Therefore, I give this document no weight. Further, whether the applicant has limitations at her work is not determinative of whether her injuries are minor, absent specific medical evidence and evidence of causation.

18None of the MRI reports show any injuries that would fall outside the definition of a minor injury. The October 14, 2016 MRI of the applicant’s lumbar spine notes “no significant disc heriations...minor edema at the right SI joint.” The April 27, 2017 MRI report notes “prior MCL sprain”. The June 8, 2018 MRI report of the applicant’s right hip notes “partial tear of the gluteus tendons” which I find would fall within the definition of minor injury. Further, this condition was diagnosed almost two years after the accident and there is no medical evidence linking the cause of this condition to the accident.

19Dr. Tullio, the applicant’s neurologist, in May 2017 diagnosed the applicant with carpal tunnel syndrome. With respect to the accident he reported that “…Since that accident…she may have suffered some cervical strain or sprain…Her localized neck pain is likely a strain or sprain-type injury.”

20Taken together, these medical records submitted by the applicant do not show any significant injuries which fall outside the definition of minor injuries proven to be caused by the accident.

21I find that the applicant has not proven on a balance of probabilities that she has sustained injuries that are not minor. There is no evidence of a pre-existing condition which would remove her from the MIG. Although the records contain some references to pain, there was no diagnosis of chronic pain or psychological condition by any of the applicant’s physicians.

Medical Benefit: Are the treatment plans reasonable and necessary?

22Having found that the applicant has not proven on a balance of probabilities that she has sustained injuries as a result of the accident that would remove her from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

23Substantially all of the monetary limits of the MIG have been exhausted. The respondent submits it has approved treatment up to the MIG policy limits.⁴ This was not disputed by the applicant.

Respondent’s Request for Dismissal pursuant to s. 55(1)

24The respondent submits that the applicant’s application should be dismissed because the applicant would not attend an insurer’s examination under s. 44 to address the treatment plan dated May 9, 2017 for $2,004.96. This issue was identified as a preliminary issue in the Tribunal’s September 20, 2019 Order but appears to have been vacated as an issue by the Tribunal’s November 15, 2019 Order. The applicant did not list this as an issue or address it in her written submissions for this hearing.

25Having already found that the applicant has not proven that she should be removed from the MIG, her application is dismissed on that basis. Therefore, I do not need to consider the respondent’s request for dismissal pursuant to s. 55(1) or whether this issue was appropriately argued before me by the respondent.

Interest

26As no benefits are payable, no interest is payable.

CONCLUSION

27For the reasons outlined above, I find that the applicant’s injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. I therefore do not need to consider whether the treatment plans in dispute are reasonable and necessary or whether the application should be dismissed pursuant to s. 55(1). As no benefits are payable, no interest is payable. The applicant’s claim is dismissed.

Released: April 24, 2020

________________________

Avril A. Farlam, Vice Chair

Footnotes

1. 1O.Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (C.A.) para. 24.
4. 4Written Submissions of the respondent dated December 2, 2019, para 3.