M.M. v. Northbridge Insurance Company, 2020 CanLII 42797

Citation: M.M. vs. Northbridge Insurance Company, 2020 ONLAT 19-001157/AABS

Released Date: 06/09/2020

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:

M.M.

Applicant

and

Northbridge Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Rome Petricca

Counsel for the Respondent: Rebecca J. Brown

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on July 21, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the seat-belted driver of vehicle which was stopped at a red light when his vehicle was rear-ended. As a result, the applicant submits he sustained physical and psychological injuries.

3The applicant was subsequently involved in a bicycle accident on June 6, 2018 which also resulted in physical and psychological impairments.

4The applicant applied for medical benefits that the respondent denied on the basis that his injuries fell under the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

5The following are the issues to be decided:

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

(ii) If the answer to issue (i) is no, then:

(a) Is the applicant entitled to receive medical benefits in the amount of $2,340.00 for chiropractic treatment recommended by Parkdale Chiropractic in a treatment plan submitted August 17, 2018, and denied by the respondent on October 5, 2018?

(b) Is the applicant entitled to expenses in the amount of $324.00 for chiropractic services, submitted on an OCF-6 dated July 26, 2018?

(c) Is the applicant entitled to expenses in the amount of $180.00 for chiropractic services, submitted on an OCF-6 dated August 17, 2018?

(d) Is the applicant entitled to expenses in the amount of $755.74 for chiropractic services, submitted on an OCF-6 dated October 19, 2018?

(e) Is the applicant entitled to expenses in the amount of $90.00 for chiropractic services, submitted on an OCF-6 dated November 19, 2018?

(f) Is the applicant entitled to receive medical benefits in the amount of $1,332.00 for chiropractic treatment recommended by Parkdale Chiropractic in a treatment plan submitted October 29, 2018, and denied by the respondent on January 8, 2019?

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

RESULT

6Based on the totality of the evidence before me, I find:

(i) The applicant’s injuries are predominantly minor injuries as defined under the MIG. As a result of the monetary limit of the MIG being exhausted, there is no need to determine the reasonableness and necessity of the treatment plans and expenses in dispute; and

(ii) As there are no benefits outstanding, there is no interest that is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

8The applicant bears the onus to establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

9The applicant does not provide submissions with respect to whether his injuries are outside the definition of the MIG. The applicant submits his treating physicians made treatment and assessment recommendations based on their ongoing treatment of the applicant and therefore more weight should be given to their opinions over the insurer examination (“IE”) assessors. The applicant further submits that he had a history of pre-existing depression as well as physical impairments of his neck, back and knees which were exacerbated by the accident and, on that basis, he should be removed from the MIG.

10I will proceed to discuss the impairments the applicant has and whether they would be under the definition of the MIG and then I will proceed to discuss whether the applicant may have a psychological impairment or any pre-existing injury that may remove him from the MIG.

The Applicant’s Physical Impairments are within the MIG

11However, after a review of the evidence, I find the applicant to have impairments that fall within the definition of the MIG for the following reasons.

12The applicant’s chiropractor, Dr. Gaibisels, submitted a Disability Certificate (OCF-18)³ which noted the applicant to have a WAD-2 (whiplash associated disorder) with complaints of neck pain and musculoskeletal signs, sprain and strain of the lumbar spine and sacroiliac joint, an unspecified injury of the quadriceps muscle and tendon as well as an injury of the adductor muscle and tendon of the thigh.

13An x-ray of the applicant’s cervical spine dated July 22, 2015 noted a loss of the normal cervical lordosis but otherwise alignment is maintained and there was no radiographic evidence of a fracture.⁴

14The clinical notes and records of Dr. Chan from March 6, 2017 state that he had a tender neck and spine as well as back strain.⁵

15An MRI of the applicant’s cervical spine dated August 26, 2017 opines that the applicant has an “unremarkable examination, with no evidence of traumatic injury.”⁶

16The physiatrist consultation by Dr. Montgomery dated October 16, 2017 notes his injuries as “myofascial axial neck and periscapular pain.”⁷

17The respondent submits the applicant sustained only minor, soft tissue injuries as a result of the accident and there is no evidence that his injuries are anything more than a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation. As a result, it is the respondent’s position that the physical injuries fall within the definition of the MIG.

18I agree with the respondent. The injuries the applicant directs me to by way of the evidence noted above are all in my view, within the definition of the MIG.

19However, the applicant relies upon other evidence in support of his position of a psychological impairment and pre-existing injuries which he suggests should remove him from the MIG. I will turn to discuss the applicant’s psychological impairments.

Does the applicant have a psychological injury to remove him from the MIG?

20For the following reasons, I find that the applicant has not proven on a balance of probabilities that he has a psychological injury that would take him out of the MIG.

21The applicant submits he has been diagnosed with an adjustment disorder with anxiety, major depressive disorder and somatic symptom disorder with predominant pain, persistent type. The applicant relies upon the opinion of Dr. Shaul and his psychological report dated June 12, 2019.⁸

22The respondent submits there is no evidence to support a finding that the applicant suffered from psychological injuries as a result of the accident on July 21, 2015. According to the respondent, the medical documentation shows that the applicant did not make any psychological or emotional complaints during his visits to any medical health practitioner between July 2015 and September 2015 and he was not seen again until the spring of 2017.

23It is the respondent’s position that the applicant reported significant concussion symptoms as well as mood disturbance and concentration issues after the bicycle accident in June 2018 and not as a result of the motor vehicle accident. Furthermore, the respondent submits he suffered cognitive and psychological impairments from the bike accident.

24The respondent submits the psychological report of Dr. Shaul, notes the applicant’s psychological difficulties as of the date of the assessment, “are in part” as a result of the motor vehicle accident, however Dr. Shaul does not provide an explanation or rationale to support this conclusion. As a result, the respondent submits that Dr. Shaul’s report should not be given any weight.

25Furthermore, the respondent submits that the applicant reported to Dr. Shaul that the concussion symptoms and the difficulties he is experiencing are related to the bicycle accident. The applicant also self-reported to Dr. Shaul that he did not have these symptoms prior to the bicycle accident.⁹

26The respondent submits that it was as a result of the bicycle accident and not the motor vehicle accident that he sustained a concussion among other significant injuries including head pain, shock, headaches, neck pain and psychological complaints.¹⁰

27The respondent further relies upon an IE assessment by Dr. Marino dated May 2019 wherein he opined that based on the applicant’s reporting and presentation, the applicant presented with no psychological diagnosis as a result of the subject accident. The applicant met the criteria for post concussive syndrome and adjustment disorder with mixed anxiety and depressed mood as a result of the more serious subsequent bicycling accident.¹¹

28I agree with the respondent. I place less weight on Dr. Shaul’s report as it does not specify or discuss any causation issues with respect to the psychological impairments from the bicycle accident and those from the subject accident. The subject accident was almost four years prior to the assessment by Dr. Shaul and there are no other notations of psychological symptoms or concerns from any of the applicant’s medical practitioners following the subject accident.

29The applicant has not persuaded me on a balance of probabilities that he suffers from psychological impairments as a result of the subject accident that would take him out of the MIG.

30I will now turn to discuss whether the applicant has a pre-existing condition that would remove him from the MIG.

Requirements to be removed from the MIG

31Even if the applicant’s injuries fall within the definition of minor injury, the applicant can still be taken out of the MIG in accordance with s. 18(2) of the Schedule. The applicant must prove, on a balance of probabilities, all three of the following requirements in order to be removed from the MIG under this section:

i. Have a pre-existing medical condition;

ii. The pre-existing medical condition was documented by a health practitioner before the accident; and

iii. The person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

32I find that the applicant has not satisfied his onus and has not provided any submissions or evidence of a pre-existing condition that satisfies all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG.

33The applicant submits he suffers from pre-existing depression as well as physical impairments of the neck, back and knees which were exacerbated by the accident.

34Other than the applicant’s submissions, I have not been directed to compelling evidence in support of these submissions. Other than an MRI of the applicant’s bilateral knees dated May 13, 2013 that notes the applicant to have a multioculated ganglion cyst in relation to the posterior medial aspect of the left knee, I have not been directed to any other pre-existing condition that was documented by a health practitioner before the accident.

35Upon review of the OHIP Summary from July 2, 2012 to the date of the accident in 2015, the clinical notes and records of his family doctor, Dr. Chan from March 2015 to the date of the accident and the clinical notes and records from the Albany Medical Clinic from November 2013 to the date of the accident, there is no evidence in these records indicating that the applicant suffered from depression, back, neck or knee pain in the years preceding the accident.

36In my view, evidence of a pre-existing condition on its own is not sufficient to remove an applicant from the MIG. As per s.18(2) of the Schedule, the applicant must provide compelling evidence from his treating medical practitioner that the pre-existing condition will prevent maximal recovery from the minor injury if he is subject to the $3,500 limit under the MIG.

37Without that part of s.18(2), I find that the applicant has not satisfied the requirements under the Schedule to be removed from the MIG as a result of any pre-existing condition.

38As a result of finding that the applicant does not have a psychological impairment or a pre-existing injury that satisfies the requirements of s. 18(2) of the Schedule to be removed from the definition of the MIG and as a result of the MIG limits being exhausted, there is no need to conduct an analysis on whether the remaining treatment plans or expenses are reasonable and necessary.

ORDER

39As a result of the above, I find that:

i. The applicant’s injuries fall within the definition of the MIG;

ii. As a result of the MIG limits being exhausted, there is no need to conduct an analysis of whether the treatment plans and expenses are reasonable and necessary; and

iii. As there are no outstanding benefits, there is no interest that is payable.

Released: June 9, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Applicant’s Written Submissions at Tab 4 dated August 17, 2018.
4. 4Ibid at Tab 15.
5. 5Ibid at Tab 16.
6. 6Ibid at Tab 19
7. 7Ibid at Tab 20.
8. 8Ibid at Tab 22.
9. 9Ibid at Tab 22, at page 13.
10. 10Respondent Written Submissions at Tabs 12 and 13.
11. 11Respondent’s Written Submissions at Tab 9.```