Citation: T. M-F. v. The Co-operators, 2022 ONLAT 20-005244/AABS

Licence Appeal Tribunal File Number: 20-005244/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:

[T.M.F]

(A minor by her litigation guardian, [R.F])

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sevda Guliyeva, Paralegal

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By written submissions

OVERVIEW

1[T.M.F], (“the Applicant”), was involved in an automobile accident on May 24, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by The Co-operators, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant’s impairment of a nature that it falls within the Minor Injury Guideline?
2. Is the applicant entitled to $2,374.40 for chiropractic services recommended by Dan Shlepakov submitted September 4, 2019?
3. Is the applicant entitled to $2,193.76 for chiropractic services recommended by Dan Shlepakov submitted October 7, 2019?
4. Is the applicant entitled to $1,923.04 for chiropractic services recommended by Dan Shlepakov submitted November 26, 2019?
5. Is the applicant entitled to $2,142.00 for chiropractic services recommended by Rudi Chan submitted February 6, 2020 and denied February 6, 2020?
6. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

3I find that the Applicant sustained a predominantly minor injury. She has exhausted the $3,500.00 funding limit provided for minor injuries and is not entitled to the disputed treatment and assessment plans as a result.

BACKGROUND

4The Applicant, a minor, was the front-seat passenger of an SUV which was struck on the front passenger side by a left-turning vehicle in an urban intersection. The impact of the collision caused the airbags to deploy in the Applicant’s vehicle and she was struck on the forehead, causing swelling. She was taken to the hospital, but no diagnostic imaging occurred. Despite her claims of a headache and delayed onset neck pain, the Applicant was discharged with pain medication and a recommendation to return if her symptoms worsened.

5The Applicant followed up with her family physician, Dr. V. Amarasekera, the following day and was referred for neck, chest, and back x-rays. She submits that Dr. Amarasekera advised her to attend rehab, but the clinical notes and records (“CNRs”) are completely illegible and I am unable to confirm same. However, this is not contested by the Respondent and is consistent with other accident cases.

6The Applicant took a week off school following the accident and returned to full time classes within three weeks. At the same time, she started treatment pursuant to the MIG, which consisted primarily of physiotherapy. She has exhausted the funding limit of $3,500.00 and seeks a finding that she is not subject to the MIG and the funding limit. The Applicant submits that her pre-existing knee condition, chronic low back, neck, and knee pain, and psychological symptoms are all reasons why she should not be subject to the MIG.

THE MINOR INJURY GUIDELINE

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

8If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

9The Applicant submits that the MIG should not apply for three distinct reasons: that she has pre-existing knee issues that precludes her maximal recovery within the MIG, that she has developed chronic neck, back and knee pain, and that she has developed psychological symptoms as a result of the accident.

Pre-Existing Knee ISSUES

10The Applicant submits that she had an abnormal right knee x-ray on February 22, 2016 and that this documented pre-existing medical condition prevents her from reaching maximal recovery within the MIG. She directs me to the insurer’s examination (“IE”) report of Dr. J. S. Kobayashi, pediatric neurologist, that acknowledges the knee imaging and says that the Applicant’s “recovery of symptoms after the motor vehicle accident may be prolonged because of her pre-existing inflammation of her knees.”

11The Respondent submits that the Applicant’s initial treatment forms indicate either no pre-existing condition, or pneumonia in 2014. It also submits that imaging alone is insufficient evidence of a pre-existing injury which prevents recovery within the MIG. Lastly, it submits that Dr. Kobayashi concluded that the Applicant’s pre-existing knee issues do not prevent her from reaching maximal recovery and that this opinion was supported by Dr. S. Dharamshi, physician, in an IE report dated November 27, 2019.

12I agree with the Respondent and find insufficient evidence to show that the Applicant has a pre-existing knee condition which would remove her from the MIG. The Applicant’s initial complaints were neck and back related. She presented in the emergency room at the hospital with a normal gait. Her claims forms document no compelling pre-existing injury. There is no evidence or other suggestion that a case of pneumonia, pre-dating the accident by about four years, would impact her recovery from predominantly soft-tissue injuries.

13The IE assessors were aware of the Applicant’s pre-existing knee complaints and maintained that her injuries fall within the MIG. Like Dr. Kobayashi, Dr. Dharamshi noted that the Applicant reported that she previously suffers from runner’s knee on the right side but no other pre-existing issues. Dr. Dharamshi considered her past medical history to be unremarkable and found no compelling evidence of any pre-existing medical condition that would impact her injuries.

14Dr. Kobayashi’s statement on the Applicant’s recovery does not remove her from the MIG. Indeed, Dr. Kobayashi said that the Applicant’s “recovery of symptoms after the motor vehicle accident may be prolonged because of her pre-existing inflammation of her knees.” However, this is clarified in the following statement where Dr. Kobayashi states that the Applicant “does have injuries of a minor nature and I do not believe that she has a pre-existing medical condition, despite the pre-accident knee pain, that would prevent her from achieving maximal recovery.” There is no other evidence from a treating physician which suggests that the Applicant’s prior knee pains would impair her recovery.

Psychological Symptoms

15The Applicant submits that she should be removed from the MIG due to psychological symptoms. To her, a psychological interview with her treatment facility on July 12, 2019 and a referral by her family physician dated August 2, 2019 are evidence that she sustained psychological injuries as a result of the accident.

16The Respondent submits that there is no evidence that the psychological symptoms reported by the Applicant are as a result of the accident and that any psychological symptoms are minor sequalae because she never followed through on the referral.

17To me, the evidence suggests that the few psychological symptoms referenced by the Applicant fail to meet the level to remove her from the MIG. The treatment facility CNRs include no record of the psychological interview, as the Applicant suggests. As noted above, Dr. Amarasekera’s CNRs are illegible and I am unable to determine the cause of the psychological referral, though I do acknowledge that the referral does document this accident. In any event, the Applicant never followed through with the referral and has not sought any psychological consultation or treatment as a result of this accident.

Chronic pain

18The Applicant claims that she suffers from chronic back, neck, knee and shoulder pain as a result of the accident. She submits that the pain was severe enough to require ongoing prescription pain medication and that her pain has lasted longer than the expected timeline for recovery. She highlights that she has endured over 220 treatment sessions, but her pain persists. She agrees that she has lived an active lifestyle following the accident but submits that her consistent treatment record, continuous complaints to assessors and practitioners, and the diagnosis’ provided by her various assessors is indicative that she sustained an impairment that falls outside the minor injury definition.

19The Respondent submits that the Applicant has not shown that her ongoing pain is anything more than sequelae of the soft-tissue injuries sustained in the accident. It submits that ongoing pain alone is not enough to remove the Applicant from the MIG and that the Applicant must also show more than simple recurrent pain; it must be pain of a severity that causes a functional impairment.

20I find insufficient evidence that the Applicant suffers from a chronic pain condition which would remove her from the MIG. No medical practitioner has diagnosed the Applicant with chronic pian, chronic pain syndrome, or any other chronic pain condition. Dr. Dharamshi’s November 27, 2019 IE report concluded that the Applicant was a healthy teenager with signs of residual myofascial pain in the neck, shoulders, and low back. Dr. Kobayashi’s November 16, 2019 IE report found no impairments and concluded that the Applicant’s general and neurological examinations were unremarkable apart from demonstrated restricted movements in her neck, shoulders, and back, due to subjective pain.

21The Applicant exhibits functionality which indicates that she is not suffering from pain which is more than simply recurrent pain or that the pain causes a functional impairment. Following the Accident, the Applicant returned to independence with self care, returned to full-time school, made the varsity basketball team as a starting point guard, and made the volleyball team. I agree that the Applicant was prescribed pain medication and endured ongoing physiotherapy as a result of the accident, but these facts do not remove her from the MIG without evidence of functional impairment.

THE DISPUTED TREATMENT PLANS

22The Applicant is not entitled to the disputed treatment plans. She is subject to the $3,500.00 funding limit on treatment and has exhausted this funding. It follows that no payments or interest are payable because the Applicant is not entitled to the disputed treatment plans.

CONCLUSION

23The Applicant sustained some forehead swelling from being struck by her airbag, as well as neck and back strains as a result of the accident. These injuries rightfully fall within the minor injury definition in the Schedule.

24The Applicant has not provided compelling evidence of a pre-existing medical condition which would preclude her recovery within the MIG. The Applicant’s knee pain complaints prior to the accident are not indicative of a condition which would negatively impact her recovery.

25There is no evidence that the Applicant sustained a psychological injury or developed a chronic pain condition as a result of the accident. The Applicant was referred for a psychological consultation but chose not to go through with it. There is no evidence of a psychological injury as a result. Likewise, there is no evidence that the Applicant suffers from a functional impairment as a result of ongoing pain.

26The Applicant is not entitled to the disputed treatment and assessment plans because she has exhausted her $3,500.00 funding limit on treatment.

27No interest is payable as no payments went overdue.