Licence Appeal Tribunal File Number: 20-010675/AABS
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:
Melissa Samwaru
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
Safiyyah Ferouz, Paralegal
For the Respondent:
Yann Grand-Clement, Counsel
HEARD In Writing:
January 4, 2022
OVERVIEW
1The applicant was involved in an automobile accident on December 18, 2019, and sought benefits from the respondent, The Personal, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied the treatment plans in dispute because the respondent determined that her accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
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?
If the applicant’s injuries are not considered to be predominantly minor,
i. Is the applicant entitled to a medical benefit in the amount of $1,328.10 (less amounts approved of $1,100.00) for physiotherapy services recommended by Physiomotiv Inc. in a treatment plan submitted on July 2, 2020 and denied by the respondent on July 23, 2020?
ii. Is the applicant entitled to a medical benefit in the amount of $2,218.10 for chiropractic services recommended by Physiomotiv Inc. in a treatment plan submitted on August 6, 2020 and denied by the respondent on August 12, 2020?
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?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant submits there is another issue in dispute, being $2,200.00 for the cost of a mental health assessment dated January 14, 2021, proposed by CeloCare Health & Wellness. The parties’ agreed upon issues are clearly outlined in the Case Conference Report and Order (CCR&O) of February 5, 2021. The mental health assessment was not an agreed upon issue nor did the applicant file a Notice of Motion requesting to add this issue to the hearing agenda. Therefore, I am unable to rule on this issue as it is not properly before the Tribunal.
RESULT
3The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG, that the treatment plans are reasonable and necessary, or that interest or an award are appropriate.
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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
5The applicant submits that due to the motor vehicle accident, her physical and psychological abilities have been severely impacted. The applicant submits that she has a pre-existing condition, that of a brain aneurysm with associated headaches. She has also been diagnosed post-accident with a psychological condition as well as she has been prescribed medication to treat pain and submitted clinical notes and records from Oakdale Medical Centre in support of her pain complaints along with a pre-screening psychological assessment from a psychologist.
6In response, the respondent submits that the applicant suffered uncomplicated minor soft tissue injuries as a result of the accident. The respondent submits that none of the clinical notes and records from Oakdale Medical Centre mention a psychological impairment. Also, none of the medical evidence points to a significant pre-accident impairment that would impede the applicant’s post-accident recovery.
7I agree with respondent and find that the applicant has not demonstrated that their accident-related impairments warrant removal from the MIG. The physical injuries identified on the OCF-3 are sprain/strain of the cervical spine, sprain/strain of the lumbar spine, sprain/strain of the sacroiliac joint, and right shoulder tendinopathy. The physical injuries sustained fall within the definition of a “minor injury” under s. 3(1).
8The Oakdale Medical Center Walk-in Clinic clinical notes and records indicate the applicant visited a doctor two days after the subject accident on December 20, 2019, reporting difficulties with her eyelid and with no complaints of pain regarding her back, neck, or any reports of headaches. She did not visit the walk-in clinic again until August 14, 2020, eight months after the accident. The reason for her August visit is recorded as “she has pain on right side of neck area for more than a year”.1 The accident occurred on December 18, 2019, so if she was experiencing neck pain for more than a year, the pain pre-dates the subject accident and the applicant’s submissions did not explain this discrepancy or tie it to the accident.
9The applicant attended the walk-in clinic again on November 28, 2020 with a complaint of back pain. Dr. Hwayue Liu arranged for the applicant to attend for x-rays. The x-ray taken of the applicant’s cervical spine documented that the applicant has Lordosis but the overall impression is of a “normal exam”.2 The x-ray of the applicant’s lumbar spine finds there is “no obvious cause for patient’s pain” as the sacrum and sacroiliac joints appear normal.3 The applicant is diagnosed with mechanical low back pain and counseled on the importance of home exercise, and told to do stretching and strengthening exercises for her back muscles.4 She was prescribed Naproxen and told to follow up in two weeks but it appears she did not do so.
10I find there is limited indication in the file that her physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1) because the applicant’s injuries were diagnosed as impairments that are within the MIG; her reports of neck pain pre-date the accident; and the x-rays did not indicate there are any physical issues with her neck or back.
11With 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 will preclude maximal medical recovery if they are kept within the confines of the MIG. It is not sufficient to simply have a pre-accident condition to escape the MIG on this ground. While the applicant provided information about her brain aneurysm and headaches, the applicant did not direct the Tribunal to a medical opinion that these conditions would preclude her maximal medical recovery if she is kept within the MIG, as is the requirement of s. 18(2). Therefore, I find the applicant’s pre-existing condition does not preclude maximal medical recovery if she is kept within the confines of the MIG.
12The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, even though the applicant reports she is experiencing neck and back pain, she has never been diagnosed with chronic pain or chronic pain syndrome. While a diagnosis is not strictly required, in the absence of same, the applicant must demonstrate the alleged pain is of a severity and consistency that causes functional impairment. On the evidence, where it is the applicant’s burden to prove that treatment beyond the MIG is required, I find the applicant has not demonstrated that her pain causes functional impairment necessitating removal from the MIG.
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 applicant asserts that her psychological impairments justify removal from the MIG based on her being diagnosed with an adjustment disorder with mixed anxiety and depressed mood and a specific phobia. To this end, the applicant relies on the psychological pre-screening report completed by Hidayatullah Sherzad, Psychotherapist, dated January 13, 2021.
14I do not afford much weight, if any, to the January 13, 2021 pre-screening report for the following reasons. The report does not provide the date the applicant was seen for the assessment as there is only the report date provided. While the report states that the pre-screening was arranged by Dr. Leon Steiner, there are no clinical notes and records from Dr. Steiner to help in understanding why and when the applicant was referred for the pre-screening psychological assessment or even whom or when she was referred to Dr. Steiner. The report appears to be completed based on the applicant’s self-reporting using a checklist. The checklist was not provided with the applicant’s submissions, so I am unable to review what questions the applicant was asked or review the applicant’s answers to the questions posed. In respect of her claim of a psychological injury, the applicant submitted only two reports dated July 2, 2020; however, these reports were completed at Physiomotiv. The applicant saw Dr. Lui in August, just one month after the completion of the Physiomotiv reports, and again in November. However, the applicant did not mention she was experiencing any psychological issues nor did the doctor complete a referral to a psychologist at either of these visits. I find the applicant has not provided compelling evidence that she sustained a psychological impairment as a result of the accident.
15Concussions and post-concussion issues, if established, may also fall outside the MIG. The applicant mentioned that she suffered a concussion but there is no medical documentation to support that finding.
16Accordingly, for all the reasons above, I find the applicant has not demonstrated on a balance of probabilities that their accident-related impairments warrant removal from the MIG.
17Having 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. As no benefits are overdue, no interest is payable under s. 51.
Section 10 Award
18The applicant also sought an award under s. 10 of O. Reg. 664 but did not provide any submission on this issue. 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. Without any understanding of the request for the award, and more importantly, as no benefits were unreasonably delayed or withheld by the insurer, there is no s. 10 award.
CONCLUSION
19The 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.
Released: January 12, 2022
Amanda Marshall, Adjudicator