Release date: 06/11/2021
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:
Onika Ndukwe
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Robert Plate, Counsel
For the Respondent:
Sarah Qin, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on May 11, 2019, and sought various benefits from the respondent, Security National, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule''). Security National paid medical and rehabilitation benefits up to the limit under the Minor Injury Guideline (“MIG”) and denied the benefit in dispute on the basis of the MIG and because further treatment was not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute. Notably, the applicant was involved in a second accident on November 19, 2019 that Security National is currently adjusting.
ISSUES IN DISPUTE
2The following issues are 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 MIG?
b. Is the applicant entitled to $2,192.04 for physiotherapy services recommended by East Oshawa Physiotherapy in a treatment plan dated September 12, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met her burden of demonstrating that removal from the MIG is warranted or that the treatment plan is dispute is reasonable and necessary.
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 did not offer specific submissions on her standing within the MIG but relies on two Disability Certificate’s (“OCF-3”): the first from her physiotherapist dated June 10, 2019 stating she suffered a concussion and shoulder and neck strain. The second OCF-3 is from her family physician, Dr. Chung, dated February 7, 2020, which confirms similar injuries. She also relies on relevant excerpts from the clinical notes and records of Dr. Chung, the OCF-18 in dispute, the s. 44 reports procured by Security National and November 2019 x-ray reports. She submits that as a result of the accident she sustained a concussion and serious strains to her shoulder and neck that warrant removal from the MIG, which prevented her from performing the essential tasks of her employment and make the physiotherapy treatment in dispute reasonable and necessary.
6In response, Security National submits that the applicant has failed to prove that she suffers from physical, psychological or neurological impairments that would remove her from the MIG and justify further treatment. It points to the records of Dr. Chung that are silent on chronic pain and psychological injuries and the s. 44 reports of Dr. Moddel, who found no evidence of a neurological impairment, and Dr. Seon and Dr. Ko, who found that the applicant sustained predominantly minor injuries as a result of the May 11, 2019 accident.
7I agree with Security National and find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The physical injuries identified in the OCF-3s are all sprain and pain injuries. Dr. Chung’s notes confirm physical findings of cervical strain, right shoulder strain, neck pain and headaches, which all fall within the definition under s. 3(1). As Security National notes, the diagnostic imaging of the right shoulder and cervical spine on which the applicant relies were taken on the day of her subsequent accident of November 19, 2019, which is currently being adjusted. These results raise causation concerns that the applicant did not address.
8In any event, the x-rays revealed no fracture or dislocation, and only mild subluxation, which is captured by the MIG. Meanwhile, physiatrist Dr. Marchie’s October 2019 report indicates that the radiographs of her cervical spine and shoulders were unremarkable and the ultrasound of the right shoulder was unremarkable. The s. 44 physiatry examination by Dr. Ko found sprain and strain injuries to the cervical and lumbar spine and shoulder with no objective evidence of ongoing pathology, treatable within the MIG. Accordingly, I find there is limited evidence of an objective physical impairment falling outside of s. 3(1).
9I do note both OCF-3’s indicate that the applicant sustained a concussion and is suffering from headaches, which may warrant removal from the MIG. The medical evidence reveals self-reporting of headaches and trouble with memory and concentration. However, according to the letter from Dr. Gawel, her consulting neurologist, the MRI came back normal and she was prescribed Cambia and instructed to keep a diary. Dr. Marchie’s October 15, 2019 report diagnosed occipital neuralgia but offered no treatment recommendations beyond ice/heat packs, stretching, topical creams and a gradual return to exercise. Despite having the benefit of reply, the applicant’s submissions did not address these impairments and the limited notes of Dr. Chung provided no evidence that these symptoms persist or require further investigation.
10In contrast, Dr. Moddel, neurologist, conducted two s. 44 examinations in January 2020 addressing the MIG and the applicant’s since withdrawn income replacement benefit (“IRB”) claim. On both occasions, Dr. Moddel found no evidence of a neurological impairment related to the accident and diagnosed tension-type headaches and muscular pain in the neck, shoulder and arm, treatable within the MIG. I find this is generally consistent with the medical evidence and the opinions of Dr. Gawel and Dr. Marchie, so there is no basis for removal from the MIG.
11Under 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 will preclude maximal medical recovery if they are kept within the confines of the MIG. However, the applicant provided no compelling medical evidence that a pre-existing impairment or condition would prevent her recovery if she is kept within the MIG, as is required. The selected clinical notes of Dr. Chung reveal no pre-accident complaints and Dr. Marchie’s consultation note dated October 15, 2019 confirmed that the applicant had no prior medical history. In any event, the applicant did not direct the Tribunal to a medical opinion stating that a pre-existing impairment prevents recovery under the MIG, as required by s. 18(2).
12The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, while Dr. Chung recommended physiotherapy, the applicant’s submissions do not specifically argue for removal from the MIG based on chronic pain and I was not directed to a diagnosis of same. There is limited discussion of the severity of her pain or its effect on her function, and I note her claim for an IRB was withdrawn at the case conference. Accordingly, in the absence of a diagnosis and with no indication that her pain is causing functional impairment, there is no basis for removal from the MIG on this ground.
13Finally, 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 s. 44 report of Dr. Seon revealed no psychological diagnosis. The applicant provided no medical evidence or submissions to interfere with that determination or support removal from the MIG on this ground. Accordingly, 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.
Is the treatment plan reasonable and necessary?
14Having 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 plan in dispute is reasonable and necessary under s. 16 is not required. As no benefits are overdue, no interest is payable under s. 51.
CONCLUSION
15The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not payable and interest does not apply.
Released: June 11, 2021
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.