Citation: NH vs. Allstate Canada, 2020 ONLAT 18-011461/AABS

Released Date: 04/21/2020 File Number: 18-011461/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:

N. H.

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Rome Petricca, Paralegal

For the Respondent:

Andrew Franklin, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, N.H., was injured in an automobile accident on May 17, 2017 (“the accident”) and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'') from the respondent, Allstate.

2Allstate denied N.H.’s claims because it took the position that her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline² (“the MIG”). N.H. disagrees.

3The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. N.H. argues that her injuries take her out of the limits set out by the MIG.

4If N.H.’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary. Based on treatment that N.H. has received to date, the MIG limit has been exhausted.

5If Allstate’s position is correct, then N.H. is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary.

ISSUES

6Did N.H. sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to medical benefits limited by the MIG?

7If N.H.’s injuries are not within the MIG, then I must determine the following issues:

(i) Is N.H. entitled to reimbursement in the amount of $45 for ambulance bill submitted on an expense claim form (OCF-6) on January 6, 2017 and denied on February 7, 2017?

(ii) Is the medical benefit in the amount of $2,547.81 for chiropractic treatment recommended by Toronto Health Care Clinic in a treatment plan (OCF-18) submitted on May 27, 2017 and denied on July 4, 2017, reasonable and necessary?

(iii) Is the medical benefit in the amount of $19.61 ($1,319.61 less the approved $1,300) for chiropractic treatment recommended by Toronto Health Care Clinic in a treatment plan (OCF-18) submitted on July 27, 2017 and denied on April 4, 2018, reasonable and necessary?

(iv) Is the medical benefit in the amount of $1,465.10 for chiropractic treatment recommended by Toronto Health Care Clinic in a treatment plan (OCF-18) submitted on December 2, 2017 and denied on December 20, 2017, reasonable and necessary?

(v) Is the cost of examination in the amount of $2,000 for psychological assessment recommended by Toronto Health Care Clinic in a treatment and assessment plan (OCF-18) submitted on November 30, 2017 and denied on December 20, 2017, reasonable and necessary?

(vi) Is the cost of examination in the amount of $1,340.20 for functional impairment assessment recommended by Toronto Health Care Clinic in a treatment and assessment plan (OCF-18) submitted on December 2, 2017 and denied on December 20, 2017, reasonable and necessary?

(vii) Is N.H. entitled to interest on any overdue payment of benefits?

RESULT

8Based on the evidence before me, I find that N.H.’s injuries are predominantly minor and therefore subject to treatment within the MIG and the $3,500.00 monetary limit prescribed by s. 18(1) of the Schedule. Given that the monetary limit has been exhausted, I do not need to consider if the treatment plans are reasonable and necessary.

ANALYSIS

The Minor Injury Guideline

9The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 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.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the MIG.

10Section 18 further provides that the $3,500.00 limit does not apply to an insured person “if her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500.00 limit.”

11The onus is on N.H. to prove on a balance of probabilities that her entitlement to medical benefits is not subject to the MIG, and its prescribed $3,500.00 limit for minor injuries.³

Accident-related injuries – Physical

12N.H. has not provided me with evidence to establish that her physical injuries are not minor. To the contrary, I find that the evidence shows that her injuriers are consistent with a minor injury. The medical reports, clinical notes and records, and the injuries indicated in the treatment plans are consistent with the Schedule’s definition of ‘minor injuries’.

Treating Practitioners

13N.H. submitted evidence from Dr. Khaira, Chiropractor, who completed a disability certificate (OCF-3) and Dr. James, Family Physician, who treated N.H. immediately following the accident. This evidence establishes on balance that N.H. sustained soft tissue injuries as a result of the accident.

14For instance, in her Disability Certificate dated May 31, 2017, Dr. Khaira diagnosis N.H. with “Lumbar spine — strain sprain, thoracic spine — strain sprain, cervical spine — sprain strain, headache —post-traumatic, dizziness, hip & thigh — sprain strain of joints &ligaments (right), shoulder girdle —sprain strain (right), elbow — sprain/strain (right), abdominal pain, behaviour —symptoms and signs involving emotional state”. Although, as a chiropractor, Dr. Khaira may be trained to observe possible signs of psychological issues, she is not qualified to diagnose them. As such, I place no weight on the “symptoms and signs involving emotional state” diagnoses mentioned in the OCF-3 of Dr. Khaira.

15The records of Dr. James further support that N.H sustained predominantly minor injuries. For example:

(i) On June 5, 2017, N.H. saw Dr. James and presented with vaginal bleeding and low back pain complaints “off and on since [the motor vehicle accident]”.⁴ On June 19, 2017, N.H. saw Dr. James and her back pain was “improving”.⁵ During an appointment on July 17, 2017, N.H. denied having any abdominal pain or vaginal bleeding.⁶ There are no accident-related complaints in the balance of Dr. James’ notes in 2017⁷;

(ii) On March 26, 2018, N.H. saw Dr. James and a positive pregnancy test was confirmed.⁸ The notes from an appointment on May 29, 2018 confirmed that N.H. was “very happy” and “can’t wait to have the baby”.⁹ The balance of Dr. James’ notes in 2018 do not disclose any accident-related physical or psychological injuries¹⁰; and

(iii) On March 5, 2019, N.H. saw Dr. James and presented with low back pain “worse since she had epidural”. Lifting and bending movements were noted as painful. Feelings of depression were also noted. There is no evidence that the depression was as a result of the accident almost two years prior. The balance of Dr. James’ notes in 2019 do not disclose any accident-related physical or psychological injuries.¹¹

16Based on the above, N.H. has failed to persuade me that her physical injuries fall outside of the MIG.

Accident-related injuries - psychological

17I find that N.H. did not suffer from any accident-related psychological injuries that would remove her from the MIG limit.

Dr. Shaul Pre-Screen Report

18N.H. submitted a Psychological Pre-Screen Interview Report, completed by Dr. Shaul, Supervising Psychologist, and Ms. Iliois, Therapist, in relation to the treatment plan submitted on November 30, 2017. I place very little weight on this report as it does not provide me with evidence to show that N.H.’s reported psychological impairment(s) are anything other than symptoms or sequelae arising from the soft tissue injuries sustained in the accident. The report is based entirely on a series of questions asked of N.H. during the screening process. In essence, it is a self-report of N.H.’s symptoms and difficulties.

19No psychometric tests were administered by Dr. Shaul or by Ms. lliois during the pre-screen assessment. The report recommends treatment sessions but contains no diagnosis based on an objective conclusion.

20In addition, N.H. reported to Dr. Shaul that “she suffers from depression related to her daughter’s (autism) condition”.¹² At the s. 44 assessment with Psychologist Dr. Lubbers, Dr. Lubbers noted that “N.H. was “unaware of a recommendation or referral for psychological or mental health consultation”.¹³ N.H. noted an increase in driving anxiety following the collision but stated that it has improved and “denies the perception that her anxiety warrants formal intervention”. N.H. also reported to Dr. Lubbers that she is “disinterested in psychological counselling to address accident-related difficulties”.¹⁴

21Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that N.H. suffers from a psychological impairment that is not subject to the MIG.

22N.H. has not provided medical evidence to demonstrate that she is unable to recover under the MIG as a result of her psychological symptoms. Further, N.H. has not expressed a desire to receive psychological treatment for any alleged accident-related psychological impairment. Therefore, she has not met the onus of establishing entitlement to treatment beyond the MIG limits.

23N.H. is limited to the $3,500.00 limit in benefits available under the MIG, which has been exhausted, and I therefore do not need to address the question of whether the treatment plans are reasonable and necessary.

24For the reasons stated above, I find that N.H. is not entitled to the treatment plans.

CONCLUSION

25N.H. sustained predominantly minor physical injuries that fall within the MIG. Accordingly, N.H. is not entitled to payment for the treatment plans claimed in this application.

26N.H.’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24
4. 4Respondent’s Document Brief - Tab 2, p.1
5. 5Ibid
6. 6Ibid – pg. 2
7. 7Ibid – pgs. 3-6
8. 8Ibid – pg. 6
9. 9Ibid – pg. 9
10. 10Ibid – pgs. 6-9
11. 11Ibid – pgs. 10-15
12. 12Applicant’s Document Brief – Tab 13, pg. 4
13. 13Respondent’s Document Brief – Tab 13, pg. 5
14. 14Respondent’s Document Brief – Tab 13, pg.7