Nicdao v. Allstate Insurance, 2021 CanLII 35564

Citation: Nicdao v. Allstate Insurance, 2021 ONLAT 20-000031/AABS

Release date: 04/30/2021

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:

Anna Marie Nicdao

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

For the Respondent:

Lisa Quan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on October 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2The issues to be decided in the hearing are:

1. 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 (MIG)?

2. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for psychological services recommended by Dr. Grace Gronkowska in a treatment plan (OCF-18) denied on April 17, 2018?

3. Is the applicant entitled to a medical benefit in the amount of $3,107.55 for physiotherapy services recommended by Scarborough West Physiotherapy in a treatment plan (OCF-18) denied on July 17, 2018?

4. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULTS

3The applicant’s injuries are 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.

4The applicant is not entitled to a medical benefit in the amount of $2,200.00 for psychological services nor to a medical benefit in the amount of $3,107.55 for physiotherapy services.

5The applicant is not entitled to an award or to interest.

BACKGROUND

6The applicant was a passenger in a motor vehicle accident on October 27, 2017. Her vehicle was stopped at a red light when it was struck by a garbage truck on the right side of the vehicle. The applicant did not go to the hospital and reported to the CRC that she hurt her back and neck.¹

7The applicant visited her family doctor, Dr. Yulia Baryla, three days after the accident. Dr. Baryla assessed whiplash neck injury, lumbar strain. The applicant has a history of concussion from February 2017 because of an abusive relationship that she was in at that time, but Dr. Baryla did not diagnose any exacerbation of the concussion symptoms.² The applicant reported to Dr. Baryla on November 21, 2017 right shoulder and right hip pain. There was no mention of concussion symptoms.³

8Multi-region x-rays conducted on February 23, 2018 were normal.⁴ Ultrasounds of the right shoulder and right hip in March 2018 showed no abnormality in either area.⁵

9Dr. Kachooie’s Physiatry report noted that the supplicant has “no neurological symptoms or distal radiation … neurological exam intact; EMG studies in the right upper extremity normal; not taking any medication and works as a cleaner and has returned to her job.” He recommended a multidisciplinary rehab program and that she use pain medications. There is no evidence before me that the applicant acted on the referral.⁶ Dr. Kachooie noted in February 2019 that the SI joint x-rays and a cervical spine MRI that the applicant had taken showed everything was normal.⁷

10The applicant complained to Dr. Baryla on November 4, 2019 that her mother had died from cancer and that she was experiencing depression and poor sleep since her mother’s death. Dr. Baryla referred the applicant to psychotherapy counselling, noting that the applicant’s mental/emotional issues were not caused by a physical condition.⁸ Dr. G. Gronkowska, psychologist, noted in her report that the applicant had post-traumatic stress disorder, as a result of a combination of her mother’s death, driving anxiety, past abusive relationship and that she was not working.⁹

11In April 2020, the applicant underwent a psychiatric assessment with Dr. Joan Tucker, psychiatrist, who noted in her April 23, 2020 report¹⁰ that the applicant: has no previous medical problems; has not had any psychiatric treatment for five years; was currently in a stable and supportive relationship; works as a part-time cleaner and delivers groceries, has bereavement disorder.¹¹ Dr. Tucker referred her to an outpatient psychotherapy program for bereavement counselling.

12There is no evidence before the Tribunal that the applicant has filled any medications for psychological concerns since the accident.

ANALYSIS

Applicability of the MIG

13I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG for the reasons set out below.

14Section 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.”

15An 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.

16The applicant submits that her injuries fall outside of the MIG because her pre-accident medical issues have been exacerbated by the accident. She claims to have chronic pain syndrome, and multiple psychological conditions as a result of the accident.

17In response, the respondent submits that the applicant’s injuries fall within the MIG.

18I agree with the respondent and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The applicant’s family doctor, Dr. Baryla, assessed the applicant with whiplash neck injury, lumbar strain. All x-rays and ultrasounds of the right shoulder and right hip show that everything was normal. The applicant worked as a cleaner and delivery person after the accident, which required physical activity, without her making any complaints of worsening right shoulder pain.

19From April 5, 2018 to July 8, 2020, the applicant continued to see her family doctor for non-accident related pain or issues. Her family doctor never referred the applicant to a pain management clinic, nor did she diagnose the applicant with chronic pain syndrome.

20With regards to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if they are kept within the confines of the MIG. Regarding pre-existing conditions, the applicant had a history of concussion in February 2017, but Dr. Baryla did not diagnose any exacerbation of the concussion symptoms. The applicant never reported to her family doctor any concussion impairments. There is no indication that any concussion impairment pre-accident was exacerbated post-accident and would prevent maximal medical recovery, if kept within the MIG.

21The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. I find no indication in the medical documentation that the applicant’s lingering accident-related pain has become chronic in nature or is causing functional impairment. The evidence shows that the applicant is working two jobs and has no major complaints of self-care issues or problems carrying on a normal life, which leads me to believe that she has no functional impairment. There is also no diagnosis of chronic pain syndrome in any of the documentation before me, by a chronic pain specialist, despite her consistent complaints of neck and right shoulder pain.

22Finally, an applicant may also escape the MIG if they sustained 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 first mentioned a psychological concern to her family doctor on November 4, 2019. This concern related to the death of her mother and was not connected to the accident. Dr. Baryla noted that the applicant’s current mental/emotional problems were not caused by a physical condition.¹²

23Dr. Joan Tucker, psychiatrist, noted in her April 23, 2020 report¹³ that the applicant: has no previous medical problems; has not had any psychiatric treatment for five years; was currently in a stable and supportive relationship; works as a part -time cleaner and delivers groceries, has a bereavement disorder.¹⁴ Dr. Tucker referred her to outpatient psychotherapy program for bereavement counselling. I find no evidence that Dr. Tucker referred the applicant for accident related psychotherapy that would justify removal from the MIG on this ground.

24Dr. Gronkowska assessed the applicant with post-traumatic stress disorder. Most of her report was based on the applicant’s reporting and not reviewing pre- and post-accident medical records. Dr. Gronkowska noted in her report that a nerve conduction test revealed nerve damage, which was wrong in that the test showed normal results. Dr. Gronkowska noted in her report that the applicant stated that she had concussion symptoms, yet the applicant never reported same to Dr. Baryla. Dr. Gronkowska noted in her report that the applicant was not working even though the applicant had told Dr. Tucker and Dr. Kachooie that she was working two jobs. For the above reasons, I give very little weight to Dr. Gronkowska’s report.

25The applicant never made use of the individual psychotherapy offered by Dr. Tucker nor ever submitted to the respondent a plan for psychological counselling.

26Therefore, I find that the applicant has not presented compelling evidence that she sustained a psychological impairment or concussion as a result of the accident.

27Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

Reasonable and Necessary

28Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required.

Section 10 Award

29The applicant also sought an award under s. 10 of O. Reg. 664, submitting that the respondent unreasonably withheld or delayed the payment of benefits. 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. I find an award is not appropriate because no benefits are owing.

Interest

30As no benefits are owing, there is no interest owing.

CONCLUSION

31The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary, no interest is payable, and a s. 10 award is not appropriate.

Footnotes

1. 1Tab B CRC Supplementary Information Form date October 27, 2017
2. 2Tab C -Clinical note of Dr. Baryla dated October 30, 2020
3. 3Ibid, at 2
4. 4Tab D-X-ray report of right shoulder, lumbar spine, pelvis, right hip dated February 23, 2018
5. 5Tab E-Ultrasound reports re right shoulder, right hip date March 12, 2018
6. 6Tab 3 -Applicant’s Document Brief
7. 7Tab F-Clinical note of Dr. Kachooie dated February26, 2019
8. 8Tab K Patient Information Form by Dr. Baryla dated November 4, 2019
9. 9Tab 5-Clinical notes and Records of Dr. G Gronkowska dated March 22, 2020
10. 10Tab M-Psychiatric Report of Dr. Joan Tucker dated April 23, 2020
11. 11Tab M-Psychiatric Report of Dr. Joan Tucker dated April 23, 2020
12. 12Tab K Patient Information Form by Dr. Baryla dated November 4, 2020
13. 13Tab M-Psychiatric Report of Dr. Joan Tucker dated April 23, 2020
14. 14Tab M-Psychiatric Report of Dr. Joan Tucker dated April 23, 2020