Released Date: 01/13/2021
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:
Monique Noble
Applicant
and
Co-Operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Devika Maharaj, Paralegal
For the Respondent:
Patrick M. Baker, Counsel
HEARD:
Via written submissions
OVERVIEW
1The applicant was injured in an accident on April 29, 2017, and sought various benefits from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Co-Operators denied the benefit in dispute based on its determination that the applicant’s accident-related impairments were predominantly minor injuries subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2While seven issues were initially identified as being in dispute, the applicant withdrew three of her claims. Accordingly, the following issues remain in dispute:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline? (Note: The parties agree the MIG limits have not been exhausted and their submissions shall identify the amount remaining.)
b. Is the applicant entitled to $2,384.58 for physiotherapy treatment, recommended by Active Mobility Rehab in a treatment plan (OCF-18) submitted on May 10, 2017, and denied on December 27, 2017?
c. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG, that the treatment plan is reasonable and necessary or that she is entitled to an award.
ANALYSIS
Applicability of the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that she suffers from pain in her back, neck and shoulders that reduces her range of motion. Further, her submissions assert that she experiences headaches with blurred vision, that she underwent psychological distress and suffered from significant anxiety that prevented her from driving long distances. While she has participated in physiotherapy and massage and has taken pain relief medication, she submits that her pain continues over three years post-accident, which impacts her daily activities and employment.
6I find the applicant’s submissions fall well-short of meeting her burden of demonstrating that her accident-related impairments justify removal from the MIG. While the applicant may have some lingering pain, the applicant has not provided medical evidence or opinion to support her claim that her physical injuries, which are largely identified as soft-tissue injuries, are not captured within the definition of minor injury under s. 3(1) the Schedule. All of the diagnostic imaging reports were normal or negative. Her family physician only prescribed muscle relaxants and analgesics. There is no indication that her headaches are continuous or that they affect her function. An April 2019 letter describes significant progress. Meanwhile, the s. 44 report of Dr. Winsor, general practitioner, revealed full range of motion and functional activity and determined that the applicant sustained soft-tissue injuries. I find no reason to interfere with Dr. Winsor’s opinion. With regards to s. 18(2), the applicant’s submissions specifically indicate that she did not have any pre-existing conditions that would preclude maximal medical recovery if she was kept within the confines of the MIG. Accordingly, she cannot escape the MIG on this ground.
7The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, however, the applicant’s submissions do not specifically argue for removal from the MIG based on chronic pain. Further, I find no indication in the medical documentation that her lingering pain can be definitively traced to the subject accident (and not the subsequent accident in September 2018, as Co-Operators suggests), that it has become chronic in nature or is causing functional impairment at home, where she continues to care for three children, or at work, where she has not missed any significant time post-accident. While not strictly required for removal from the MIG, there is also no diagnosis of chronic pain or chronic pain syndrome in any of the documentation despite her complaints of pain, nor does the applicant engage with any of the chronic pain criteria provided in the AMA Guides that would support potential removal from the MIG. In any event, I agree with Co-Operators that the applicant’s withdrawal of her claim for a chronic pain assessment is a compelling indication that there is no justification for removal from the MIG on this ground either.
8Finally, an applicant may also escape the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). The applicant asserts that she underwent psychological distress and suffered from significant anxiety that prevented her from driving long distances. With respect, the only evidence to support this seems to be contained in the letter from her family physician that is dated two years post-accident, April 2, 2019, which I find is hardly a contemporaneous notation of her alleged struggle. In any case, the letter also states that she only missed “a day or two” of work as a result of this distress and was still capable of driving to complete local errands. The letter also states that she is able to recall the accident without distress or anxiety and offers no referral to a specialist for investigation.
9Further, the s. 44 report of Dr. Marino, psychologist, determined that the applicant had not sustained a psychological impairment as a result of the accident and indicates that the applicant stated that she did not believe she needed psychological treatment and that she was not aware a psychological assessment was being proposed on her behalf. On this basis, I again agree with Co-Operators that the applicant’s withdrawal of her claim for a psychological assessment undermines her claim for removal from the MIG on this ground.
10For these reasons, I find no basis to interfere with Co-Operators’ determination, as I find the applicant has not met her onus to demonstrate that her accident-related impairments warrant removal from the MIG.
Is the $2,384.58 treatment plan for physiotherapy reasonable and necessary?
11Although the applicant has not demonstrated that removal from the MIG is warranted, it is my understanding that the MIG limits have not been exhausted. Therefore, an analysis of whether the treatment plan in dispute is reasonable and necessary under s. 16 is required. I find the applicant has not demonstrated that the physiotherapy treatment plan is reasonable and necessary or payable.
12The applicant submits that the plan is reasonable and necessary due to her pain, her continuous reports of same, her family physician’s referral for treatment and the fact that she incurred the treatment. To this end, she submits that Co-Operators has not discharged its duty to ensure that she returns to her pre-accident level of functioning. In response, Co-Operators submits that on May 29, 2017, it denied this OCF-18 on the basis that it believed the MIG applied. While it agreed to release the initial $2,200 in funding under the MIG, it refused the OCF-18 in dispute under s. 38(5) because it was not submitted via OCF-21, a decision that is not subject to review under s. 38(6). I agree with Co-Operators.
13Further, it does not appear that an OCF-23 was submitted by the applicant until June 1, 2017, which was approved by Co-Operators. However, Co-Operators submits that it has never received an OCF-21 in HCAI from the clinic invoicing for services provided in accordance with the OCF-23, which is a requirement under s. 49 of the Schedule. Problematically, the applicant did not dispute this argument in a reply. Accordingly, I find the treatment plan is not payable.
Section 10 Award
14The applicant sought an award under s. 10 of O. Reg. 664 but did not offer particulars of her claim. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. As the applicant has not demonstrated entitlement and no benefits are overdue, I find an award is not appropriate.
ORDER
15All of the applicant’s claims are dismissed.
Released: January 13, 2021
__________________________
Jesse A. Boyce
Vice Chair
Footnotes
- O. Reg. 34/10, as amended.