Citation: Nelson vs. Travelers Insurance Company of Canada, 2021 ONLAT 19-012673/AABS
Released Date: 05/18/2021
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:
Carleen Nelson
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Lorne Climans, Counsel
For the Respondent:
Sara Baum, Counsel
Heard by videoconference:
April 20, 2021
REASONS FOR DECISION
OVERVIEW
1The applicant, Carleen Nelson, was involved in an automobile accident on September 1, 2018, and sought benefits from the respondent, Travelers Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline and denied medical benefits outside the applicable $3,500.00 funding limit under the Schedule. The respondent also denied the applicant’s claim for an income replacement benefit. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
i. 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?
ii. Is the applicant entitled to an income replacement benefit of $400.00 per week from September 9, 2019 to date and ongoing?
iii. Is the applicant entitled to medical benefits and the cost of an examination recommended by Finch Health Centre Inc. in the amount of:
(i) $1,299.86 for physiotherapy services, submitted in a treatment plan (OCF-18) dated November 14, 2018 and denied by the respondent on November 30, 2018?
(ii) $3,586.88 for physiotherapy services, submitted in a treatment plan (OCF-18) dated December 19, 2018 and denied by the respondent on January 2, 2019?
(iii) $2,200.00 for a Psychological Assessment, submitted in a treatment plan (OCF-18) dated July 17, 2019 and denied by the respondent on July 25, 2019?
(iv) $2,200.00 for a Chronic Pain Assessment, submitted in a treatment plan (OCF-18) dated September 9, 2019 and denied by the respondent on September 19, 2019?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to establish entitlement to the benefits she seeks. Her accident-related injuries were predominantly minor, soft tissue injuries and their clinically associated sequelae. The Minor Injury Guideline applies. As the funds available for medical benefits have been exhausted, it is unnecessary for me to consider the disputed treatments and assessments individually.
5The applicant has also failed to establish that she meets the test for an income replacement benefit.
6As no benefits are owing, no interest is payable. The application is dismissed.
ANALYSIS
Does the Minor Injury Guideline apply?
7To be eligible for the medical benefits she seeks in this application, the applicant has the onus of proving, on a balance of probabilities, that her accident-related injuries are not predominantly “minor” as defined in the Schedule.2 The term “minor injury” is defined in s. 3(1) 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.”
8If the applicant’s injuries are predominantly minor, the Minor Injury Guideline, which establishes the framework for the treatment of minor injuries, will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. In the applicant’s case, the $3,500.00 has been exhausted.
9For the reasons I will discuss, I find that the applicant’s accident-related injuries fall within the definition of a “minor injury”; the Minor Injury Guideline applies; and the applicant is not entitled to the additional medical benefits she seeks.
10The applicant testified in a sincere and forthright manner. Her evidence was internally consistent and, in all material ways, corroborated by the documentary record. I have no reason to doubt her credibility.
11The applicant testified that after the accident, her friend advised her to go to a chiropractor and hire a lawyer to get the insurance company to cover the cost of treatment, which she could not afford. The applicant attended at the Finch Health Centre, where she was assessed by Dr. Andrew Haluskay, a chiropractor. On September 19, 2019, Dr. Haluskay completed a Disability Certificate (OCF-3) on the applicant’s behalf. The OCF-3 identified the applicant’s accident-related injuries and sequelae as whiplash associated disorder, various sprain and strain injuries, dizziness and giddiness, and insomnia. These injuries fall squarely within the definition of a minor injury in the Schedule.
12The applicant continued treatment at Finch Health Centre until June 3, 2020. The applicant testified that she was told she was not eligible for any more sessions at the clinic, but that she could do an assessment to see if the pain in her back was leading to migraines, and that the insurance company would probably pay for more sessions.
13The applicant testified that she does not have a family physician because the wait lists in her area are long. I accept that evidence. I draw no adverse inference from the fact that the applicant went to a walk-in clinic for primary care. Ready access to family medical care cannot be found in every community. However, the case law is clear that the applicant bears the onus of establishing entitlement to benefits based on objective medical evidence. Of this, the record contains very little.
14The applicant attended a walk-in clinic with complaints of back pain on June 14, 2019 and was seen by Dr. Sarit Shuldiner. Dr. Shuldiner referred the applicant for an x-ray of the thoracic spine on June 17, 2019. The x-ray was unremarkable. The applicant testified that she did not visit Dr. Shuldiner again about her accident-related complaints because Dr. Shuldiner had said she was fine, and that there was nothing broken or anything like that.
15Dr. David Brooks, a family physician, assessed the applicant through Finch Health Centre on September 17, 2019. Dr. Brooks opined that the applicant was suffering from a chronic pain condition as she was “still suffering from generalized pain and unresolved biomechanical dysfunction of the [cervical and thoracolumbar] spine,” and “increased anxiety and less sleep”. Dr. Brooks noted the applicant’s difficulty with household tasks such as vacuuming, sweeping, cooking, picking up the groceries, walking for more than 60 minutes, or sitting for more than a few hours.
16The applicant relies on the report of Dr. Brooks to show that she suffers from a chronic pain condition capable of removing her from the Minor Injury Guideline. The respondent submits that Dr. Brooks’ diagnosis is an outlier, lacks a supporting rationale, and is not corroborated by other evidence.
17The applicant relies on this Tribunal’s reconsideration decision in 17-000835 v. Aviva General Insurance Canada,3 in which chronic pain was held to justify removal from the Minor Injury Guideline. The respondent, on the other hand, refers me to a decision of the Tribunal establishing that non-functionally disabling chronic pain symptoms can be considered mere sequelae of minor injuries: M.A. vs. Aviva Insurance Canada, 2019 CanLII 101601 (ON LAT).
18The Minor Injury Guideline contemplates treatment for pain symptoms that are clinically associated with minor, soft tissue injuries. Chronicity of pain complaints alone is not enough to escape the Minor Injury Guideline. To warrant additional treatment, pain symptoms must not only persist longer than the 12-week timeframe associated with minor injury recovery but be severe and functionally disabling. Although not binding, the American Medical Association Guides, 6th edition (“AMA Guides”), set out six diagnostic criteria that may guide an assessment of non-minor chronic pain. A minimum of three criteria must be met to warrant diagnosis.4
19The respondent submits that the applicant has not established any of the AMA Guides criteria for a chronic pain diagnosis. I agree. The applicant has not established use of prescription drugs for any duration. She testified that she uses a heating pad for back pain and puts peppermint oil on her forehead to treat her migraines because she doesn’t believe in taking pills. Although the applicant testified that her brother brings her laundry up from the basement, this does not establish excessive dependence on health care providers or family. There is no evidence of secondary physical deconditioning due to disuse. The applicant testified that she was unable to participate in the Caribana parade after the accident, wear heels, and party every weekend at clubs as she used to, but she still visits friends and family and has not shown withdrawal from her social milieu. The applicant testified that she quit a job at a craft store two years after the accident because heavy lifting was required, but her successful return to full-time study at community college within months of the accident does not demonstrate a failure to restore pre-injury function. The applicant testified that she had pre-existing episodic anxiety but did not tender objective evidence to show the development of psychosocial sequelae linked to the accident. A treatment and assessment plan (OCF-18) on its own is not evidence of psychological impairment. The intake report of Dr. J. Pilowsky, the psychologist who proposed the disputed Psychological Assessment, is not corroborated by objective medical evidence.
20Dr. Brooks refers to the applicant’s longstanding asthma and that her pain “may have been affected by this pre-existing problem.” But the applicant makes no submissions on the effect of s. 18(2) of the Schedule, which may permit a person to escape the Minor Injury Guideline on account of pre-existing medical conditions if certain evidentiary requirements are met. There are no pre-accident medical records upon which to base a s. 18(2) analysis.
21The applicant has not met her evidentiary onus. It is therefore unnecessary for me to engage with the evidence of the Insurer’s Examiners.
22I conclude that the Minor Injury Guideline applies to the treatment of the applicant’s accident-related injuries, which were predominantly minor, soft tissue injuries and their clinically associated sequelae. Because the $3,500.00 available to the applicant has been exhausted, it is unnecessary for me to consider whether the individual treatment and assessment plans in dispute are reasonable and necessary under s. 15(1) of the Schedule. No medical benefits are owing, and no interest is payable.
Is the applicant entitled to an income replacement benefit?
23The test for an income replacement benefit is set out in s. 5(1) of the Schedule. There is no dispute that at the time of the accident, the applicant was unemployed and receiving employment insurance benefits. The parties disagree about whether the applicant suffered a “substantial inability to perform the essential tasks of [her pre-accident] employment.”
24The applicant submits that she meets the second branch of the test [“the disability test”]. The respondent takes the opposite position.
When did the applicant satisfy the procedural requirements to apply for the benefit?
25To apply for an income replacement benefit, an applicant must submit a completed application for accident benefits (OCF-1) and disability certificate (OCF-3) [s. 36 of the Schedule].
26The applicant submitted an application for accident benefits dated September 6, 2018 and a disability certificate dated September 19, 2019. In a letter dated October 11, 2018, the respondent noted that the forms contained conflicting information about the applicant’s employment status at the time of the accident.5 In accordance with s. 36(4)(c) of the Schedule, the respondent requested more information so it could determine the applicant’s benefit entitlement.
27When an applicant provides information indicating she may be eligible for more than one type of weekly (or “specified”) benefit, it triggers s. 35 of the Schedule. Section 35 requires an insurer to notify the applicant within 10 days of receiving her application that she must elect, within 30 days of receiving the notice, which benefit she wishes to receive. Because the provisions of the Schedule must be given effect and be read harmoniously, an application for a specified benefit cannot be said to be ‘complete’ for the purposes of s. 36(4) of the Schedule until the required election is made.
28The applicant did not elect to receive an income replacement benefit until January 8, 2019.
29The applicant submits that her eligibility flows from September 19, 2019, the date she submitted a disability certificate. The respondent submits that if she satisfied the test, the applicant would only be eligible for the benefit as of January 8, 2019 when she complied with its s. 33 request.
30I agree with the respondent. Section 33(6) provides that an insurer is not required to pay a benefit during a period of non-compliance under that section. The applicant failed to clarify her employment status and elect a weekly benefit until January 8, 2019 and her eligibility flowed from that date.
31Therefore, the focus of the analysis is on whether, at the time the applicant had satisfied the procedural requirements to apply for an income replacement benefit and the s. 33 suspension ended, she met the relevant disability test.
Did the applicant satisfy the disability test for the benefit?
32I now turn to the applicant’s submissions and evidence on whether she met the disability test for an income replacement benefit.
33The applicant testified that in January 2019, she had begun attending community college on a full-time basis. She testified that she had decided to return to school before the accident because she was having difficulty finding employment in her area. She did not want to travel far from home or pay double fare to travel to work. She applied for funding; heard back about the funding in December 2018; applied to a culinary arts program at Humber College and began classes in January 2019. The applicant reiterated this point in her testimony: she planned to apply for college months before the accident.
34I must determine, as a matter of fact, whether the applicant was substantially unable to perform the tasks of her pre-accident employment from January 2019 until the end of the 104-week post-accident period in September 2020 as a result of the accident [Schedule s. 5(1)1.ii.C.]. If I find that at the relevant time, the applicant was not working for reasons unrelated to the accident, she will have failed to establish entitlement to an income replacement benefit.
35When cross-examined, the applicant stated that she was not looking for a job after she started school in January 2019 because she didn’t feel she could do both. She had made her decision to return to full-time study before the accident occurred. By her own account, she was not prevented from meeting the demands of her culinary arts program, which involved a mix of practical and classroom instruction, as a result of her accident-related pain.
36The applicant graduated from Humber College’s culinary arts diploma program after successfully completing the Winter 2020 term. She testified that she was unable to find work in the field after graduation because of the pandemic and began receiving the Canada Emergency Response Benefit (CERB) in June 2020. She received the CERB until September 2020, coinciding with the end of the 104-week post-accident period in which she claims entitlement to an income replacement benefit.
37The applicant has tendered no contemporaneous medical evidence of her functional abilities during the relevant period. She testified that Dr. Shuldiner never advised her against working; they never went into the details of the accident. She testified she just told Dr. Shuldiner that she was in pain and there were no follow-up questions. She testified that she told her treating chiropractor at Finch Health, Dr. Haluskay, that her back hurt with lifting or standing too long.
38In a self-administered “Neck Disability Index” provided by Dr. Haluskay in December 2018, a month before the relevant period, the applicant endorsed that her pain was fairly severe at the moment, but that functionally,
i. her pain prevented her from lifting heavy weights off the floor, but she could manage if they were conveniently positioned;
ii. she could do her usual work but no more;
iii. she could stand as long as she wanted but with extra pain, and that her pain did not prevent her from walking any distance.
39Again, I draw no adverse inference from the fact that the applicant went to a walk-in for primary care. But I do not accept the applicant’s submission that during the period she is claiming entitlement to an income replacement benefit she was suffering from pain severe enough to be functionally disabling. She only visited her usual walk-in clinic once to address her accident-related complaints.
40The applicant submits that the extent of care she received from Dr. Shuldiner for her accident-related injuries made sense because medical doctors do not do much for soft tissue injuries and chronic pain. The medical records before me show that the applicant received in-depth care, including diagnostic tests and appropriate referrals, for medical conditions unrelated to the accident. Dr. Shuldiner did, in fact, order an x-ray at the time of the applicant’s accident-related visit in June 2019 but it was unremarkable. I conclude that the lack of further follow-up by Dr. Shuldiner was because it was unnecessary: the applicant’s accident-related injuries were relatively minor. The applicant did not complain of symptoms or difficulties related to those injuries to Dr. Shuldiner again.
41The applicant gave evidence that when she was asked to lift heavy boxes at a job she held in a craft store in October 2020, (after the 104-week post-accident mark), it worsened her back pain. She stated she quit because she did not want a job that required heavy lifting. Even if the applicant’s functioning in December 2020 was within the scope of the analysis, the Tribunal has consistently held that performing essential tasks of employment, albeit with pain, does not establish a substantial inability to perform those tasks. Fundamentally, the applicant has not tendered evidence to show that, at the material time, she met the disability test.
42The applicant has failed to discharge her evidentiary onus regarding the claimed income replacement benefit. Although the applicant was not working in the 104 weeks post-accident, I find that it was not as a result of her accident related impairments. The applicant made the decision to return to full time studies and not work prior to the accident. She attended school full time as she intended and graduated from the program. After graduation, her inability to work in the culinary industry was due to the pandemic, not any accident-related impairment. The medical evidence tendered does not support that the applicant was unable to complete the essential tasks of her employment.
43It is not necessary to engage with the evidence of the Insurer’s Examiners. No weekly benefit is owing, and no interest is due. The application is dismissed.
CONCLUSION
44The applicant has not established entitlement to the benefits in dispute. No interest is owing. The application is dismissed.
Released: May 18, 2021
_____________________________
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair Insurance, 2015 ONSC 3635.
- 2018 CanLII 83520 (ON LAT).
- Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; excessive dependence on health care providers, spouse, or family; secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
- The application for accident benefits stated the applicant was unemployed and collecting employment insurance at the time of the accident, but the disability certificate noted that on September 1, 2018, her injuries prevented her from returning to work.