McDowell v. Security National Insurance Company
Licence Appeal Tribunal File Number: 21-014393/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:
Martina McDowell
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
Ken Yip, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Martina McDowell, the applicant, was involved in an automobile accident on November 10, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 Minor Injury Guideline (the “MIG”) limit?
ii. Is the applicant entitled to chiropractic and physiotherapy services in the amount of $201.22 ($3,696.50 less $3,495.28 approved), proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated November 18, 2019?
iii. Is the applicant entitled to chiropractic and physiotherapy services in the amount of $1,977.05, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated January 8, 2020?
iv. Is the applicant entitled to chiropractic and physiotherapy services in the amount of $1,384.70, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated February 21, 2020?
v. Is the applicant entitled to chiropractic and physiotherapy services in the amount of $2,569.40, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated September 1, 2020?
vi. Is the applicant entitled to a psychological assessment in the amount of $2,460.00, proposed by 101 Assessments in a plan dated August 15, 2020?
vii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3The applicant sustained predominantly minor injuries and remains in the MIG.
4The applicant is not entitled to any of the medical benefits in dispute.
5Since there are no benefits payable, there is no award or interest that is payable.
ANALYSIS
Applicability of the MIG
6I find the applicant’s injuries are predominantly minor as defined by the Schedule and therefore subject to the MIG.
7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, strain, sprain, subluxation, and whiplash associated disorder are defined in the Schedule.
8Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. The applicant may receive payment for treatment beyond the $3,500.00 cap if she can demonstrate a pre-existing condition, documented by a medical practitioner, that prevents maximal medical recovery under the MIG or if she provides evidence demonstrating her injuries are not included in the minor injury definition. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG.
9The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
10The applicant submits she should be removed from the MIG because the amount of physiotherapy treatment recommended by Dr. Narayanan (family physician) exceeds the monetary limit cap established in Superintendent’s Guideline No. 01/14 (the “Guideline”). More specifically, the applicant says the Guideline limits her benefit costs to $500.00 total over four weeks, which works out to $125.00 per week. The applicant argues that since the hourly rate for physiotherapy is $99.75, she is prevented from obtaining more than one physiotherapy session per week because this would exceed the weekly limit of $125.00. The applicant therefore reasons that the MIG is insufficient for the applicant to recover from her accident.
11I note too, that the applicant’s submission speaks to psychological impairments that include anxiety disorders and depressive episodes. Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments. However, the applicant, in her submissions, does not argue these conditions warrant removal from the MIG. Her psychological condition is raised only in the context of whether the treatment plan for a psychological assessment (dated August 15, 2020) is reasonable and necessary. Therefore, I did not analyze psychological factors as they relate to the MIG.
12The applicant has failed to demonstrate she should be removed from the MIG. She submits that, on January 20, 2020, Dr. Narayanan reported spasms in the applicant’s neck, pain in her lower back, and discomfort when turning her neck. This is the only medical evidence relied upon by the applicant to support her claim. These injuries are consistent with those defined as minor by the Schedule and do not remove the applicant from the MIG.