Brown v. Economical Insurance Company, 2020 CanLII 94789

Released Date: 11/16/2020

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:

Celicia Brown

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Sevda Guliyeva

For the Respondent:

Patrick Sinclair

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on February 9, 2018, and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Economical denied the benefits in dispute on the basis that the applicant’s accident-related impairments were predominantly minor injuries subject to the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

(i) Are the applicant’s injuries predominantly minor as defined by the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

(ii) Is the applicant entitled to $1,995.33 for a psychological assessment recommended by Brampton Civic Care Centre in a treatment plan (OCF-18) submitted on May 16, 2018 and denied on May 29, 2018?

(iii) Is the applicant entitled to $3,245.94 for chiropractic treatment recommended by Brampton Civic Care Centre in a treatment plan (OCF-18) submitted on September 24, 2018 and denied on October 4, 2018?

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

RESULT

3The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. Accordingly, the benefits in dispute are not reasonable and necessary.

ANALYSIS

Applicability of the Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological diagnosis may warrant removal from the MIG.

5The applicant submits that her injuries are not minor and that her pain has become chronic in nature. Further, the applicant submits that she sustained psychological impairments as a result of the accident. Combined, she submits that regular attendance at treatment, consistent reporting to her treating practitioners and lingering symptoms warrant treatment beyond the MIG. She relies on various clinical notes and records, her Disability Certificate (“OCF-3”), Economical’s s. 44 Insurer’s Examination (“IE”) reports, a psychological pre-screen report and the OCF-18s in dispute.

6In response, Economical submits that the objective medical evidence indicates that the applicant sustained predominantly minor injuries as a result of the accident. Further, it submits that the applicant has not demonstrated that she sustained a psychological impairment as a result of the accident or that she has been diagnosed with chronic pain that causes functional impairment. Economical’s denials were based on two s. 44 IE’s, one by a general practitioner, the other by a psychologist, both of which determined that the applicant sustained impairments that are treatable within the MIG as her physical impairments were minor and there was no evidence of a diagnosable psychological impairment.

7I agree with Economical. On the medical evidence, I find the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule, as they are all listed as sprain and strain injuries in her OCF-3. I find limited medical evidence to support the applicant’s contention that her accident-related impairments are significant or, really, what specific impairments she believes fall outside of the scope of the MIG. Further, while I am alive to the applicant’s claims that she has lingering pain and has regularly attended for treatment, I agree with Economical that she has not provided a medical opinion or other medical evidence that states that she would be prevented from reaching maximal medical recovery if she is kept within the MIG, as required by s. 18(2). As Economical submits, there are no accident-related referrals or recommendations for treatment as a result of the accident from her family physician, only from her treatment providers. Indeed, it does not appear that the applicant mentioned accident-related impairments to her family physician at all despite attending over 20 times in the two years post-accident.

8In any case, the applicant also alleges that her pain is “chronic in nature” and therefore it justifies removal from the MIG. To this end, she cites clinical notes and records and her alleged functional impairment. With respect, the medical evidence offered by the applicant to support her claim of chronic pain as a result of the accident is not compelling. I find no actual diagnosis of chronic pain or chronic pain syndrome in the clinical notes and her submissions do not engage with any of the six criteria under the AMA Guides. Indeed, while the applicant may have pain, I do not find that her pain causes the type of functional impairment that would warrant removal from the MIG, as her accident-related prescription history is not complex, she has not been referred for a pain program, she identifies limited functional issues with her daily activities and returned to work at her job post-accident. In his s. 44 report, Dr. Mula confirmed that the applicant sustained primarily soft-tissue injuries that would not prevent maximal medical recovery under the MIG. On the evidence, I see no reason to interfere with Dr. Mula’s opinion and it is not rebutted by any other medical opinion.

9The applicant also submits that she has a psychological impairment that justifies removal from the MIG. However, the Tribunal was not directed to an actual diagnosis of an accident-related psychological impairment that would warrant removal from the MIG. Indeed, the pre-screen report on which the applicant relies indicates a provisional diagnosis and also a referral for an assessment secondary to PTSD, but there is no mention of the accident and, again, there is no mention of accident-related psychological or emotional issues in the family physician notes that would provide objective corroboration of the applicant’s impairments or justify the referral. While I note that fear of driving is identified as a symptom, there is no dispute that the applicant has continued to drive regularly since the accident.

10On the evidence, I prefer the s. 44 report of Dr. Chan, who determined that while the applicant is experiencing some psychological sequela associated with the accident, she did not present with symptoms that met the diagnostic criteria for a DSM-V disorder. Based on this report, it does not appear that the applicant was aware that a psychological treatment plan was submitted on her behalf. In a similar vein, the applicant did not refute her statement in Dr. Chan’s report that she did not believe she required psychological treatment. Dr. Chan opined that from a psychological perspective there are no limitations or restrictions delaying or preventing the applicant from reaching full recovery and confirmed that her psychological symptoms would fall within the definition of a minor injury.

11For these reasons, I find that the applicant has not met her burden to prove that her accident-related impairments warrant treatment beyond the MIG. Accordingly, I see no reason to depart from the opinions of Economical’s s. 44 assessors and find that the applicant’s accident-related impairments are properly within the MIG.

Are the treatment and assessment plans reasonable and necessary?

12Having determined that the applicant has not met her burden to prove that her impairments warrant treatment beyond the MIG, and the limits of the MIG have been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 15 is not required. As the applicant is properly within the MIG and has not demonstrated that further treatment is needed, the Tribunal cannot find the OCF-18s payable. As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

13The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. As the MIG limits have been exhausted, the applicant is not entitled to payment for the treatment and assessment plans in dispute, as they are not reasonable and necessary.

Released: November 16, 2020

__________________________

Jesse A. Boyce

Adjudicator

Footnotes

O. Reg. 34/10, as amended.