Andrew v. Intact Insurance Company, 2022 CanLII 65656

Citation: Andrew v. Intact Insurance Company, 2022 ONLAT 20-010182/AABS

Licence Appeal Tribunal File Number: 20-010182/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:

Macilla Andrew

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Jessica Cavdar

APPEARANCES:

For the Applicant: Davide Cortinovis, Counsel

For the Respondent: Sivan Bune, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on April 21, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The respondent denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

3A case conference was conducted on March 15, 2021 and a written hearing was scheduled.

ISSUES

4The following issues are in dispute:

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 MIG?
2. 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 $3,203.40 for chiropractic services, proposed by Gibson Wellness Centre in a treatment plan/OCF-18 dated September 18, 2018?
3. 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?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5The applicant has not demonstrated that she sustained impairments as a result of the accident that justify removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, it follows that no interest or s. 10 award is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

6Section 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 Minor Injury Guideline (“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.”

7An 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.

8In all cases, the burden of proof lies with the applicant.

9The applicant submits that she should be removed from the MIG because of pre-existing chronic shoulder pain. The applicant submits that there is compelling medical evidence that states that her condition precludes recovery if she is kept within the confines of the MIG.

10Specifically, the applicant submits that she suffers from “the pre-existing medical issue of left-shoulder chronic pain, which a health practitioner documented prior to the subject accident that was exacerbated due to the accident.”¹

11To support her removal from the MIG, the applicant submits that her family physician recommended that she receive physiotherapy treatments. She further submits that Dr. Mohamed Abounaja, who conducted a medical assessment of the applicant on May 26, 2021, “confirmed that the ongoing body pains that are present in multiple areas of Ms. Andrew’s body require a multidisciplinary chronic train treatment program.”²

12The respondent submits that there is no evidence to suggest that the applicant had a pre-existing condition that would warrant removal from the MIG, noting that the applicant made three visits to her treating physician relating to her left shoulder in the three-year period leading to the accident; the applicant was not prescribed any medication pre-accident; and, as noted in the her submissions, the applicant’s left shoulder issue likely derived from lipoma located in her left-sided upper arm. The respondent submits that, consistent with the applicant’s own reporting to the respondent’s examiner Dr. Albridge, the applicant was generally healthy prior to the accident.

13The respondent submits that there is no evidence of pre-existing chronic pain in her left shoulder to support her removal from the MIG. The respondent submits that “a thorough review of the CNRs of Dr. Thamotharam do not mention a chronic pain condition pre-accident,” and that “the applicant’s submissions to this effect clearly suggests that she self-diagnosed herself as having chronic pain.”³ The respondent accordingly submits that the Tribunal should place no weight to the applicant’s submissions in this regard.

14The respondent further submits that the applicant’s CNRs and Dr. Aldridge’s report support the finding that the applicant’s injuries are predominantly minor and do not warrant removal from MIG.

15The respondent submits that the position of Dr. Abounaja (the medical examiner who examined the applicant on May 26, 2021 and opined that the applicant sustained depression, anxiety, and post-traumatic stress disorder) is unsupported by the applicant’s post-accident clinical notes and records.

16I agree with the respondent and find that the applicant has not demonstrated that their accident-related impairments warrant removal from the MIG.

17Firstly, the physical injuries listed in the applicant’s OCF-3, dated May 3, 2018, are muscle strain; dislocation, sprain and strain of joints and ligaments at neck level; sprain and strain of thoracic spine; sprain and strain of lumbar spine; other bursitis of knee; bursitis of shoulder; headache; dizziness and giddiness; sprain and strain of other and unspecified parts of foot; and nonorganic sleep disorders.

18I find there is limited indication in the file that the applicant’s physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1) because the injuries described in her OCF-3 fall within the definition of “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.”

19Under s. 18(2), an applicant may be removed from the MIG if they provide evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if the applicant were to be kept within the confines of the MIG.

20The applicant has not led sufficient evidence of a pre-existing condition to otherwise demonstrate that her shoulder injury is an impairment that would prevent maximal medical recovery if kept within the MIG. The applicant made three visits to her treating physician relating to her left shoulder in the three-year period leading to the accident and was not prescribed any medication pre-accident. The applicant’s own submissions state that her left shoulder injury likely derived from lipoma located in her left-sided upper arm. The applicant has not proven that her shoulder injury constitutes a pre-existing condition that precludes maximal medical recovery if the applicant were to be 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. Here, the applicant’s submissions alluded removal from the MIG based on chronic pain. I find no indication in the medical documentation that any lingering accident-related pain has become chronic in nature nor is causing functional impairment. The clinical notes and records of Dr. Thamotharam from prior to the accident do not mention chronic pain.

22The applicant relies on the medical assessment conducted by Dr. Mohamed Abounaja on May 26, 2021 to establish she suffers from chronic pain causing a functional impairment. This assessment was conducted more than three years after the accident and she was diagnosed with chronic pain syndrome; post-traumatic chronic headaches; chronic whiplash associated disorder (WAD) 2; mechanical lower back pain pattern 4 PEN; cervical radiculopathy; bilateral rotator cuff syndrome; myofascial pain syndrome; bilateral sacroiliac joint disfunction; depression; anxiety; and PTSD.⁴

23The applicant also attended an in-person insurer’s examination by Dr. Albridge on November 27, 2018 in response to the treatment plan presently in dispute. Dr. Albridge concluded that the applicant sustained uncomplicated soft-tissue sprain/strain type injuries of the cervical spine, bilateral shoulder girdle, lumbosacral spine and contusion injuries, with an excellent prognosis. He further concluded that the applicant’s injuries are minor as defined by the Schedule.⁵

24Dr. Albridge examined the applicant seven months post-accident, while Dr. Abounaja’s examination of the applicant took place 37 months post-accident. I place greater weight on Dr. Albridge’s report because it occurred more contemporaneously to the subject accident and is therefore a more reliable source of information about the applicant’s injuries which stemmed from the subject accident. I find that Dr. Albridge’s report did not suffer from any substantive deficiencies that might otherwise undermine its reliability. Further, the clinical notes and records of the applicant’s family physician make no mention of chronic pain diagnosis, either pre- or post-accident. I do not find that the applicant has proven that she suffers from chronic pain that causes functional impairment that would entitle her to treatment outside the MIG.

25Based on the totality of evidence, I find the applicant has not demonstrated on a balance of probabilities that their accident-related impairments warrant removal from the MIG.

Reasonable and Necessary

26Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plan in dispute is reasonable and necessary under s. 16 is not required.

CONCLUSION

27The applicant has not demonstrated that she sustained impairments as a result of the accident that justify removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, it follows that no interest or s. 10 award is payable.

Footnotes

1. 1Applicant’s written submissions, p. 14.
2. 2Ibid.
3. 3Respondent’s written submissions, pp. 6-7.
4. 4Independent Pain Medicine Assessment Report of the applicant prepared by Dr. Mohamed Abounaja dated June 8, 2021, p. 15, at Tab 8 of the Respondent’s document brief.
5. 5Insurer Examination -- Musculoskeletal Assessment of the applicant prepared by Dr. Christopher Aldridge, dated December 7, 2018, pp. 12 and 16, at Tab 6 of the Respondent’s document brief.