M.J. v. The Dominion of Canada General Insurance Company, 2020 CanLII 45482

M.J. v. The Dominion of Canada General Insurance Company

Citation: M.J. v. The Dominion of Canada General Insurance Company, 2020 ONLAT 19-001372/AABS

Released Date: June 9, 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.J.

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

AMENDED DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Jessie Tran

Counsel for the Respondent: Christopher Deeley

Heard: By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was injured in an automobile accident on November 25, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a passenger in a tour bus which was hit on the left side, in a T-bone fashion by another bus. As a result of the accident, the applicant sustained injuries to her feet, knee, back, hands and neck as well as headaches.

3The applicant applied for medical benefits that were denied by the respondent because she was placed into 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

4The following are the issues to be decided according to the Tribunal's Order released to the parties on October 11, 2019:

i. Did the applicant sustain predominantly minor injuries as defined under the s. 3 of the Schedule and subject to treatment within the $3,500 limit of the MIG?

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

ii. Is the applicant entitled to a medical benefit for transportation costs in the amount of $800 recommended by York Medical Centre in a treatment plan (OCF-18) submitted on January 24, 2017 and denied on February 7, 2017?

iii. Is the applicant entitled to receive a medical benefit in the amount of $560 for transportation costs, recommended by York Medical Centre in a treatment plan submitted on April 11, 2017 and denied by the respondent on April 24, 2017?

iv. Is the applicant entitled to receive a medical benefit in the amount of $735 for other assistive devices, recommended by York Medical Centre in a treatment plan submitted on February 14, 2017 and denied by the respondent on February 28, 2017?

v. Is the applicant entitled to receive a medical benefit in the amount of $1,224.70 for other assistive devices, recommended by York Medical Centre in a treatment plan submitted on April 11, 2017 and denied by the respondent on April 12, 2017?

vi. Is the applicant entitled to receive a medical benefit in the amount of $2,000 for physical therapy, recommended by York Medical Centre in a treatment plan submitted on February 13, 2017 and denied by the respondent on February 28, 2017?

vii. Is the applicant entitled to receive a medical benefit in the amount of $2,000 for physical therapy, recommended by York Medical Centre in a treatment plan submitted on April 11, 2017 and denied by the respondent on April 12, 2017?

viii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,035 for an In-Home Assessment, recommended by York Medical Centre in a treatment plan submitted on January 31, 2017 and denied by the respondent on February 7, 2017?

ix. Is the applicant entitled to payments for the cost of examinations in the amount of $2,350 for a Social Work Assessment, recommended by York Medical Centre in a treatment plan submitted on May 1, 2017 and denied by the respondent on May 3, 2017?

x. Is the applicant entitled to payments for the cost of examinations in the amount of $1,500 for an Attendant Care Assessment, recommended by York Medical Centre in a treatment plan submitted on June 12, 2017 and denied by the respondent on February 7, 2017?

xi. Is the applicant entitled to payment in the amount of $200 for the completion of the Disability Certificate (OCF-3) submitted November 14, 2017 and denied by the respondent on November 22, 2017?

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

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant sustained predominately minor injuries as defined in the Schedule and, thus, she is subject to treatment within the MIG;

ii. as a result of having found the applicant's injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the treatment plans or the cost of examinations; and

iii. as there are no outstanding benefits, the applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline

6The 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.

7The applicant bears the onus of establishing, on a balance of probabilities, her entitlement to coverage beyond the $3,500 cap for minor injuries.²

8The applicant submits that due to her injuries and pre-existing medical conditions, documented by her healthcare provider prior to the subject accident, she cannot be treated within the MIG as the accident exacerbated multiple health issues, and this also prevents her from being able to effectively recover if she were to be confined to the MIG.

9Furthermore, the applicant submits that her chronic and continuing nature of her health condition warrants her removal from the monetary limit of the MIG.

10I will first turn to discuss whether the applicant has chronic pain to remove her from the MIG and then I will move on to discuss whether she has a pre-existing injury and whether that is sufficient to remove her from the MIG.

Does the applicant have a chronic pain condition?

11I find that the applicant has not persuaded me on a balance of probabilities that she suffers from chronic pain in order to be removed from the MIG for the following reasons.

12The applicant submits she has seen multiple healthcare providers including her family physician, Dr. O'Brien,³ her chiropractor, Dr. Bui⁴ and her physiotherapist, Mr. Rastogi.⁵ It is the applicant's position that this medical documentation shows the chronic and continuing nature of her health condition.

13Furthermore, the applicant relies on the In-Home insurer examination ("IE") by Mr. Birbrager on August 8, 2017⁶ noting that she continued to suffer from multiple issues including incomplete range of motion, dizziness, pain and that she required help with multiple activities of daily living. According to the applicant, this is further evidence of her need for treatment and to be treated outside the confines of the MIG.

14The applicant also relies upon the Financial Services Commission of Ontario ("FSCO") case of Arruda v Western Assurance⁷ in support of her position that chronic pain is sufficient to remove the applicant from the MIG.

15The applicant's position is that as a result of the above evidence, it shows the ongoing and continuing nature ("chronicity") of her injuries which means that she is unable to be effectively treated within the MIG.

16The respondent submits that the only mention of chronic pain came from the applicant's treating chiropractor, San Bui, who mentions it in a report dated July 12, 2019. It is the respondent's position that a chiropractor is not a qualified expert to diagnose chronic pain. Furthermore, there has not been a chronic pain diagnosis by a qualified expert or the applicant's family doctor and no diagnostic testing in support of this claim. The respondent relies upon the Tribunal decision of M.K. v. Certas Direct⁸ for the proposition that a chiropractor may treat chronic pain but that they are not permitted to diagnose chronic pain.

17The respondent further relies upon J.K. v. Intact Insurance Company⁹ and V.G. v. Aviva Insurance¹⁰ in support of its position that the suggestion of chronic pain or a concussion by a chiropractor on a treatment plan is insufficient to remove a person form the MIG.¹¹ The respondent submits that ongoing pain alone does not remove an applicant from the MIG. The pain must be accompanied by some functional impairment or disability or of such a severity that causes suffering, and distress.¹² In the respondent's view, there must be clear objective evidence obtained through diagnostic testing that concludes a person suffers from chronic pain.

18According to the respondent, the applicant has not provided evidence in support of her claim that she suffers from ongoing pain accompanied by functional impairment or disability related to the accident or that her pain is of a severity that causes suffering, distress or is accompanied by a functional impairment or disability as it relates to the accident.

19I agree with the respondent that the only reference to chronic pain was from the applicant's treating chiropractor and, in my view, I agree with M.K. v. Certas Direct that a chiropractor may treat chronic pain, but it would be beyond the scope of practice of a chiropractor to provide an opinion or diagnosis on chronic pain. I am not bound by FSCO case law; however, the applicant in Arruda was diagnosed with chronic pain syndrome by a certified specialist in Orthopaedic Surgery.¹³ That is not the situation in the present case before me and, as a result, I find the Arruda case is distinguishable on that basis.

20In the present case, the applicant's family doctor has not referred the applicant to any specialists for treatment or for any diagnostic testing with respect to her complaints other than a referral for physical treatment and furthermore, there has not been a diagnosis of chronic pain or chronic pain syndrome by any of the applicant's treating practitioners.

21I agree with the Tribunal case law that a reference or conclusory statements about chronic pain falls short of establishing a medical condition that would warrant the applicant to be removed from the MIG on the basis of chronic pain.¹⁴

22As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that she suffers from chronic pain that would be sufficient to remove her from the MIG.

23I will now turn to discuss whether the applicant has a pre-existing injury in accordance with the Schedule and whether that is sufficient to remove her from the MIG.

Requirements to be removed from the MIG

24Even 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 meet all three of the following requirements in order to be removed from the MIG under this section:

a) have a pre-existing medical condition;

b) the pre-existing medical condition was documented by a health practitioner before the accident; and

c) 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.

25I find that the applicant has not satisfied her 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 for the following reasons.

26The applicant submits that her chiropractor, San Bui, noted that her injuries from a previous accident could be a barrier to recovery. Therefore, in accordance with s. 18(2), the existence and aggravation of the applicant's pre-existing conditions means that the MIG limits do not apply.

27The respondent submits the applicant has not supplied any evidence or explanation of how or why any pre-existing condition would generate a barrier to maximal recovery with treatment confined to the MIG. Furthermore, documentation of a pre-existing injury alone is not sufficient to remove an applicant from the MIG. In essence, the respondent's position is that in this case, there are no barriers preventing the applicant from maximal recovery for the treatment of the sprains and strains she sustained in the accident.

28In my view, the applicant's interpretation of s. 18(2) is misconstrued. The existence of a pre-existing injury and a potential exacerbation of the pre-existing injury does not on its own take an applicant outside the MIG.

29As noted above, there are three parts in s. 18(2) in order to be outside the monetary limit of the MIG based on a pre-existing injury and all three must be met. One, the applicant has a pre-existing injury. In this case, I agree, the applicant submits that she has had pre-existing injuries. Second, the pre-existing injury must be documented by a healthcare practitioner before the accident. In the applicant's case, I agree, the applicant has provided medical documentation noting medical conditions and impairments that were documented prior to the accident.¹⁵ Third, and this is where the applicant falls short, which is the health practitioner determining and providing compelling evidence that the pre-existing injury will prevent the applicant from achieving maximal recovery from the minor injury if she is limited to the $3,500 monetary limit.

30In the current case, the applicant relies upon the Treatment Confirmation Form ("OCF-23") dated November 25, 2016, namely, Part 7 entitled "Barriers to Recovery" wherein the applicant's chiropractor, San Bui, check-marked "yes" and stated "previous mva [motor vehicle accident] injuries" to the question of whether there are any identified barriers to recovery that may affect the success of this treatment.¹⁶

31In my view, check-marking "yes" on Part 7 of the OCF-23 on its own is not sufficient and compelling evidence that the applicant's pre-existing injuries will prevent maximal recovery from the minor injury for two reasons. First, there is no explanation on what the pre-existing injuries are, and second, how the pre-existing injury would prevent maximal recovery from the applicant's "minor" injuries if she is subjected to the MIG. Without this information, I find that the applicant has not satisfied her onus to persuade me on a balance of probabilities and she has not provided compelling evidence in accordance with s. 18(2) in order to escape the MIG based on a pre-existing injury.

ORDER

32As a result of the above and on a balance or probabilities, I find that:

i. the applicant sustained predominately minor injuries as defined in the Schedule and she is subject to treatment within the MIG;

ii. as a result of having found the applicant's injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the treatment plans and cost of examinations; and

iii. As there are no outstanding benefits, the applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Applicant Written Submissions at Tabs 1-13. Clinical Notes and Records of Dr. O'Brien.
4. 4Ibid at Tabs 6, 13-23. OCF-3's, OCF-18's and a Functional Abilities Evaluation dated April 1, 2019.
5. 5Ibid at Tabs 24-31. OCF-18's and OCF-3's by Mr. Rastogi.
6. 6Ibid at Tab 32. Occupational Therapy In-Home IE by Mr. Birbrager.
7. 7FSCO No. A13-003926 (July 7, 2015), [2015] O.F.S.C.D. No. 177 ("Arruda")
8. 82018 CanLII 140346 (ON LAT) at para. 46.
9. 92018 CanLII 140345 (ON LAT) ("J.K")
10. 102019 CanLII 22214 (ON LAT)
11. 11J.K. at para. 21.
12. 12V.G. at para 23.
13. 13Arruda, at page 21.
14. 14S.S. v. Aviva Insurance Canada 2018 CanLII 81957 (ON Lat) at para 12; and Applicant v. Aviva Insurance Canada 2018 CanLII 112119 (ON LAT) at para 11.
15. 15Ibid at Tabs 1-4.
16. 16Applicant's Written Submissions at Tab 6.