Licence Appeal Tribunal

Citation: Stone v. BelairDirect Insurance Company, 2022 ONLAT 20-008352/AABS

Licence Appeal Tribunal File Number: 20-008352/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:

Mellissa Stone Applicant

and

BelairDirect Insurance Company Respondent

DECISION AND ORDER

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Gleb Grigorjev, Paralegal

For the Respondent: Nickola Haddad, Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION AND ORDER

BACKGROUND

1Mellissa Stone (the “applicant”) was injured in an automobile accident on July 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from BelairDirect Insurance Company (the “respondent”). The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The applicant alleges that she sustained a concussion in the accident and suffers from post-concussion syndrome, that she suffers from chronic back and neck pain, and that the accident re-aggravated previous injuries to her sternum and neck.

3The applicant submitted two treatment plans (“OCF-18s”) to fund physiotherapy. The respondent denied the benefits on the grounds that she had sustained predominantly minor injuries as defined in s. 3 of the Schedule, and that she was therefore limited to $3,500.00 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”). It also took the position that the benefits were not reasonable and necessary.

4The applicant submits that the MIG does not apply, and that she is entitled to benefits in dispute and interest.

ISSUES

5The following issues are to be decided:

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 predominantly minor, a. Is the applicant entitled to a medical benefit in the amount of $1,196.97 for physiotherapy services, proposed by Fundamentals Physiotherapy and Wellness Clinic in an OCF-18 submitted on May 29, 2020? b. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for physiotherapy services, proposed by Wellness Connection in an OCF-18 submitted on December 5, 2018?²
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The applicant’s injuries are subject to treatment under the MIG.

7The applicant is not entitled to the benefits at issue or interest.

ANALYSIS

Is the Applicant Subject to the MIG?

8Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.

9Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500.00 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

10The onus is on the applicant to prove that she is not subject to the $3,500.00 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

11The applicant alleges:

1. She sustained a concussion in the accident and suffers from post-concussion syndrome;
2. She suffers from chronic pain in her back and neck; and
3. Previous injuries to her sternum and neck are documented pre-existing conditions that prevent her from achieving maximal recovery under the MIG.

12The respondent argues:

1. The applicant did not sustain a concussion in the accident and does not suffer from post-concussion syndrome;
2. The applicant recovered from her back and neck injuries caused by the accident, and does not suffer from chronic pain due to those injuries; and
3. The applicant’s pre-existing injuries do not prevent her from achieving maximal recovery from her accident-related injuries.

13For the reasons that follow, I find that the applicant has not established that she sustained a non-minor injury, or that her previous injuries are pre-existing medical conditions that prevent her from achieving maximal recovery under the MIG.

Concussion and Post-Concussion Syndrome

14Concussions and post-concussion syndrome are non-minor injuries that would, if established, remove the applicant from the MIG: Liu v Aviva General Insurance Company, 2022 CanLII 53684 (ON LAT) at para 14.

15The applicant argues:

1. Dr. Warren Mar, her family doctor, diagnosed her with a concussion on July 31, 2018.³
2. Two medical practitioners subsequently confirmed that she sustained a concussion in the accident: Dr. Brent Souter, a chiropractor, in a report dated April 24, 2019,⁴ and Dr. Sameer Patel, an optometrist, in a report dated March 30, 2021.⁵
3. It can be inferred that she sustained a concussion because she lost consciousness in the accident, and over the following weeks she experienced concussion symptoms including nausea, vomiting, headaches, difficulty keeping her balance, and fatigue.

16The respondent argues:

1. Dr. Mar’s diagnosis is unsound because it was made more than two weeks after the accident, and it is based only on reported symptoms of headaches and fatigue.
2. It is clear from Dr. Patel’s and Dr. Souter’s reports that they did not diagnose the applicant as having sustained a concussion in the accident.
3. The totality of the evidence demonstrates that the applicant did not sustain a concussion and does not suffer from post-concussion syndrome.

Dr. Mar’s Diagnosis

17Dr. Mar’s diagnosis is stated in his clinical note of July 31, 2018, which reads in full:

lbp going to physio getting some tension headache balance n some fatigue working 8 am – 10 pm do admin, 5 – 7 hours a day went back to work after 6 weeks insurance – not calling her back a – lbp from mva, concussion p – physio – 2 times a week – whitby – dundas and cochrane⁶

18The parties disagree on the reasoning behind the diagnosis. The applicant argues that the diagnosis was based on her reported headaches and difficulty keeping balance. The respondent argues that it was based on her reported headaches and fatigue, and that Dr. Mar made no mention of balance issues. It argues that the applicant’s fatigue is attributable to her working 14-hour days.

19I give Dr. Mar’s diagnosis little weight. The rationale for the diagnosis is unclear, as illustrated by the parties’ differing interpretations of the clinical note. It is also unclear whether the statement “balance n” means that the applicant reported having difficulty keeping her balance.

20Either way, the diagnosis is based only on the applicant’s reported symptoms. The clinical note does not indicate that Dr. Mar conducted a physical assessment or tested for any other symptoms of a concussion. Headaches and fatigue are generic symptoms with many possible causes. There is no indication that Dr. Mar considered other potential diagnoses and determined that a concussion was the most likely cause of these symptoms.

21The applicant’s next appointment with Dr. Mar was on August 21, 2018. Although his clinical note of that date refers to a concussion, its meaning is unclear. The note states “mva – headaches, concussion -n” and “a – mva, veins.” It also records that the applicant was not experiencing dizziness.⁷ It is unclear what the abbreviation “-n” stands for and whether “a – mva” refers to a concussion. Even if the clinical note confirms the diagnosis of a concussion, it is entitled to little weight because it does not state on what basis Dr. Mar came to that conclusion.

22After the August 21, 2018 appointment, the applicant did not report any concussion symptoms to Dr. Mar until April 27, 2020, approximately 20 months later. During that time, she saw Dr. Mar for medical issues unrelated to the accident.⁸

The Alleged Diagnoses by Dr. Souter and Dr. Patel

23It is incorrect that Dr. Souter and Dr. Patel diagnosed the applicant as having sustained a concussion in the accident. Both doctors only noted that the applicant reported having sustained this injury. Neither purported to verify this claim, as that was not the purpose of their examinations. Dr. Souter conducted a functional abilities evaluation to assess whether the applicant had the physical capacity to return to her pre-accident occupation as a massage therapist. Dr. Patel conducted a vision test.

Loss of Consciousness and Concussion Symptoms

24The applicant argues that she sustained a concussion because she lost consciousness in the accident and experienced potential symptoms of a concussion over the following weeks. The respondent argues that other than Dr. Mar’s diagnosis of July 31, 2018, the applicant was not diagnosed with a concussion based on her reported symptoms.

25I find that the applicant’s reported loss of consciousness and other symptoms do not support the inference that she sustained a concussion. As noted above, I give little weight to Dr. Mar’s diagnosis, which was based on certain of these symptoms. When the applicant reported the other symptoms to medical professionals, they did not diagnose her with a concussion:

1. She reported having lost consciousness in the accident to the emergency room doctor, but was not diagnosed with a concussion;⁹
2. She reported having nausea and vomiting to Dr. Mar at the July 17, 2018 appointment, but was not diagnosed with a concussion;¹⁰ and
3. She was not diagnosed with a concussion in a Disability Certificate (“OCF-3”) dated July 17, 2018.¹¹

Chronic Pain

26The applicant may be removed from the MIG if she suffers from chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.¹² The pain must be distinct from ongoing or recurring pain, which on their own are classified as sequelae of a minor injury.

27The applicant argues that she continues to experience pain more than two years after the accident. She notes that she reported back and neck pain to Dr. Mar at her appointment on April 27, 2020 and at subsequent appointments,¹³ and to her physiotherapist at several appointments in late May and early June 2020.¹⁴ However, she did not identify any evidence from before April 27, 2020 that indicates she was experiencing ongoing back and neck pain after the accident.

28The respondent argues that the applicant recovered from her back and neck injuries shortly after the accident. It notes that she did not report any accident-related complaints to Dr. Mar after October 10, 2018 until April 27, 2020, approximately 18 months later. It also notes that the applicant had only used $990.00 of her benefits by November 3, 2018, and a further $410.00 by May 23, 2020.¹⁵ The respondent relies on two independent examination reports by Dr. Riaz Moolla, a general practitioner, dated April 24, 2019¹⁶ and April 1, 2021.¹⁷ Dr. Moolla concluded that the applicant had sustained soft tissue injuries with no orthopaedic or neurological complications.

29I find that the applicant has not established that she experienced continuous back or neck pain over the roughly 21-month period between July 13, 2018 (the date of the accident) and April 27, 2020:

1. Dr. Mar’s clinical notes of July 17 and 31, 2018 state that the applicant reported low back pain. However, the clinical note of August 21, 2018 states “back – good”, and the applicant did not report back pain again until her appointment on April 27, 2020. In the interim, she saw Dr. Mar for medical issues unrelated to the accident.¹⁸
2. There is no mention of neck pain in Dr. Mar’s clinical notes before April 27, 2020.¹⁹
3. The applicant did not exhaust the medical and rehabilitation benefits available to her under the MIG, and incurred only $410.00 of goods and services between November 3, 2018 and May 23, 2020.²⁰
4. The applicant reported to Dr. Moolla on April 3, 2019 that overall, her pain had improved significantly since the accident, and that her neck pain had fully resolved.²¹ Her only complaint was lower back pain when she extended her back and twisted to the right. She reported that the pain was intermittent, not daily, and lasted for a few minutes before resolving spontaneously.²²

30Because the applicant has not proved that she experienced continuous back and neck pain between the date of the accident and April 27, 2020, I cannot conclude that she suffers from chronic pain due to the accident.

Pre-Existing Medical Condition

31The applicant argues that a sternum injury and a fracture of a vertebra in her neck are documented pre-existing medical conditions that prevent her from reaching maximal medical recovery under the MIG.²³

32The respondent argues that the applicant has not provided any evidence explaining how her pre-existing conditions have prevented her from achieving maximal recovery under the MIG. It argues that Dr. Moolla noted these injuries in his April 1, 2021 report, and concluded that they did not contribute to “her current clinical presentation.”²⁴

33I find that the applicant has not proven that her pre-existing medical conditions remove her from the MIG. The applicant provided no evidence that these conditions were re-aggravated by the accident or that they affected her recovery from her accident-related injuries.

Is the Applicant Entitled to the Benefits in Dispute?

34It is unclear from the record and the parties’ written submissions whether the applicant has exhausted the $3,500.00 in benefits available to her under the MIG. An Explanation of Benefits dated February 18, 2021 indicates that the respondent had paid less than $2,200.00 in benefits as of that date.²⁵

35The applicant’s submissions focus exclusively on whether the MIG applied, and do not speak to whether the benefits in dispute are reasonable and necessary. However, the applicant’s entitlement to these benefits is stated as an issue in the Case Conference Report and Order of April 2, 2021 and the parties’ written submissions. I have therefore considered this issue.

36The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15. The onus is on the applicant to prove that the benefits in dispute are reasonable and necessary.

37The respondent states that the applicant submitted only one OCF-18, which is dated May 26, 2020 and requests benefits in the amount of $1,196.97 for physiotherapy services. The applicant did not file the other OCF-18 at issue, which is stated in Issue 2(b) as having being submitted on December 5, 2018 and as requesting benefits in the amount of $2,200.00 for physiotherapy services. Neither party referred to this OCF-18 in its submissions.

38The respondent argues that because the applicant made no submissions regarding whether the benefits in dispute are reasonable and necessary, she has not met her burden of proof.

39I find that the applicant has not established that the proposed benefits are reasonable and necessary. The May 26, 2020 OCF-18 states that the proposed treatment is for the applicant’s back and neck.²⁶ Given that I find the applicant has not proved that she suffers from chronic back and neck pain due to the accident, and that the applicant made no submissions on this issue, I cannot conclude that the benefits are reasonable and necessary. Because the other OCF-18 is not in evidence and the applicant did not address it in her submissions, she has not established that it is reasonable and necessary.

Is the Applicant Entitled to Interest?

40As there are no overdue payments of benefits, the applicant is not entitled to interest.

CONCLUSION AND ORDER

41The applicant continues to be subject to the $3,500.00 limit on medical and rehabilitation benefits and the MIG.

42The applicant is not entitled to the disputed benefits.

43The applicant is not entitled to interest.

44The application is dismissed.

Footnotes

1. 1O Reg 34/10.
2. 2Note: the respondent states that the applicant did not submit this OCF-18, and the applicant did not file it. Neither party referred to it in their submissions.
3. 3Clinical Notes and Records (“CNRs”) of Dr. Warren Mar, dated July 31, 2018. Applicant’s Written Submissions, Tab 5 at PDF pages 61-62.
4. 4Dr. Brent Souter, Functional Abilities Evaluation, dated April 24, 2019. Applicant’s Written Submissions, Tab 7.
5. 5Dr. Sameer Patel, Exam Report, dated March 30, 2021. Applicant’s Written Submissions, Tab 5 at PDF page 89.
6. 6Supra note 3.
7. 7CNRs of Dr. Mar, dated August 21, 2018. Applicant’s Written Submissions, Tab 4 at PDF page 62.
8. 8CNRs of Dr. Mar, dated July 17, 2018 to April 27, 2020. Applicant’s Written Submissions, Tab 4 at PDF pages 60-69.
9. 9Scarborough Hospital Emergency Department Record, dated July 13, 2018. Respondent’s Written Submissions, Tab 5 at 104.
10. 10CNRs of Dr. Mar, dated July 17 2018. Applicant’s Written Submissions, Tab 4 at PDF pages 60-61.
11. 11Disability Certificate (“OCF-3”) dated July 17, 2018. Applicant’s Written Submissions, Tab 2 at PDF page 25.
12. 1216-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28.
13. 13CNRs of Dr. Mar, dated April 27, May 25, June 24, July 13, November 11, December 19, 2020. Applicant’s Written Submissions, Tab 4 at PDF page 69-72.
14. 14CNRs of Fundamentals Physiotherapy. Applicant’s Written Submissions, Tab 8 at PDF pages 139-145.
15. 15Standard Benefits Statements dated November 3, 2018, May 23, 2020. Respondent’s Written Submissions, Tab 1 at 13, 17.
16. 16Dr. Riaz Moolla, Independent Medical Physician Evaluation, dated April 24, 2019. Respondent’s Written Submissions, Tab 8.
17. 17Dr. Riaz Moolla, Insurer’s Examination Medical Assessment, dated April 1, 2021. Respondent’s Written Submissions, Tab 3.
18. 18Supra note 8.
19. 19Ibid.
20. 20Supra note 15.
21. 21Supra note 16 at 155, 157.
22. 22Ibid at 157.
23. 23CNRs of Dr. Mar, 2014-2018. Applicant’s Written Submissions, Tab 3 at PDF pages 30-56.
24. 24Supra note 17 at 89.
25. 25BelairDirect Insurance Company letter to Mellissa Stone, dated February 18, 2021. Respondent’s Written Submissions, Tab 3 at 48.
26. 26OCF-18 dated May 26, 2020. Respondent’s Written Submissions, Tab 2 at 29.