Release date: 2021/03/01
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:
Alexandra Lim
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Alexandra Lim, Applicant
Carlos Ortiz, Paralegal
For the Respondent:
Jevco Insurance, Representative
Alexander Woo, Counsel
HEARD:
by way of written submissions
OVERVIEW
1Alexandra Lim was injured in an accident on February 8, 2015 and sought benefits from the respondent, Jevco, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). Alexandra Lim applied for medical and rehabilitation benefits that were denied by Jevco because her injuries were determined to be predominantly minor and subject to the Minor Injury Guideline (“MIG”). Alexandra Lim disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2The issues I am asked to decide are:
a. Did Alexandra Lim sustain predominantly minor injuries as defined under the Schedule?
3If Alexandra Lim did not sustain predominantly minor injuries, then I must decide:
a. Is the medical benefit in the amount of $1,346.58 for physiotherapy services recommended by Doshi Ankit, physiotherapist, in a treatment plan (OCF-18) dated February 26, 2018, submitted on March 14, 2018, denied on March 28, 2018, reasonable and necessary?
b. Is Jevco liable to pay an award under s. 10 of Ontario Regulation 664 (“O. Reg. 664”) because it unreasonably withheld or delayed payments to Alexandra Lim?
c. Is Alexandra Lim entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
ANALYSIS
4I find that the medical evidence shows that Alexandra Lim suffered predominantly minor injuries as a result of the accident. The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Alexandra Lim bears the onus to establish that her injuries require treatment beyond the MIG limit on a balance of probabilities.
5Alexandra Lim submits that the injuries she suffered as a result of the accident, which are described in the Disability Certificate (“OCF-3”) prepared by physiotherapist, Iriny Jacob as WAD II and thoracic sprain/strain, warrant treatment beyond the MIG limit because it has persisted for over three years and the impact on her activities of daily living.
6Alexandra Lim also relies on the following treatment records: Lifemark Physiotherapy which indicate complaints of neck spasms aggravated with sharp quick movement and pain between shoulders, T-spine strain/sprain, decreased cervical spine range of motion secondary to pain and joint restriction; and Pickering Rehabilitation and Triangle Rehabilitating which indicate neck pain and stiffness.
7Jevco argues that Alexandra Lim’s injuries are soft tissue in nature and fall within the definition of minor injuries under the Schedule. Jevco relies on two s. 44 insurer examinations by general physician Dr. Belfon: a September 18, 2016 report in which Dr. Belfon diagnosed Alexandra Lim with a sprain/strain of her cervical spine with subjective complaints of residual myofascial trapezius pain; and an October 1, 2018 report, where Dr. Belfon diagnosed Alexandra Lim with the same injuries as those reached in the September 2016 report. Dr. Belfon concluded on both occasions that Alexandra Lim sustained a “minor injury”. I agree.
8On the evidence, I find the injuries listed in the medical documentation is consistent with injuries that are considered predominantly minor. The Minor Injury Discharge report contains no grounds to support that Alexandra Lim’s physical injuries are of such significance that she requires treatment beyond the MIG limit. In fact, there is no information included in the Minor Injury Discharge report of what Alexandra Lim’s injuries are or whether she suffers any functional impairment. As noted above in paragraph 5, Alexandra Lim’s injuries are WADII and thoracic sprain/strain. I find that these injuries are consistent with those that are contained within the MIG. The medical records reveal that Alexandra Lim did not present to her treating physician with any accident-related pain complaints between August 2015 and June 2016.
9I also find that Alexandra Lim’s self reporting to Dr. Belfon to also be indicative that the accident caused little more than minor injuries and that the cause of her ongoing pain complaints may not be entirely related to the subject accident. In the September 2016 report from Dr. Belfon, Alexandra Lim confirmed that her pain had almost completely resolved by June 2015. She had minimal residual pain with no limitation regarding her activities until March/April of 2016. As a result of a subsequent accident in 2016, she noted that her pain and stiffness had increased as a result of the second accident.
10Although Alexandra Lim claims to suffer from chronic pain as a result of ongoing pain complaints, the evidence contradicts her claim. There is no diagnosis of chronic pain or chronic pain syndrome to support that Alexandra Lim suffers from accident-related chronic pain. Further, without such evidence, Alexandra Lim’s position that she suffers from chronic pain and requires treatment on this basis is weakened by medical documentation that makes no comment on chronic pain. Also, Alexandra Lim reported to Dr. Belfon at both s. 44 examinations that she had returned to working full-time within two weeks after the accident in a role that was largely sedentary and was travelling to Western Canada for work every three months. This is in addition to her reports that she was still able to engage in her daily activities. There is no evidence of functional impairment, that at a minimum, may suggest that Alexandra Lim suffers from chronic pain.
Is the OCF-18 reasonable and necessary?
11Having determined that Alexandra Lim’s accident-related impairments are squarely in the MIG, and the limit has been exhausted, it is not necessary for me to consider whether the OCF-18 is reasonable and necessary. As no benefits are payable, consequently no interest is payable under s. 51.
AWARD
12The Tribunal Order lists an award under s. 10 of O. Reg. 664 as a disputed issue. However, Alexandra Lim did not provide any submissions on how Jevco unreasonably denied or withheld benefits. As no benefits are payable, Jevco cannot have been found to have unreasonably denied or withheld benefits. Accordingly, I find that an award is not appropriate.
CONCLUSION
13For the reasons above, I find that Alexandra Lim has not met her onus to establish, on a balance of probabilities, that her injuries are not predominantly minor. As such, Alexandra Lim is not entitled to the OCF-18 in dispute, she is not entitled to interest, and no award is payable pursuant to s. 10 of O. Reg. 664.
Date of Issue: March 1, 2021
Derek Grant, Adjudicator