Asha Moghe v. Economical Insurance Company, 2023 CanLII 101083

Moghe v. Economical Insurance Company

Citation: Moghe v. Economical Insurance Company, 2023 ONLAT 21-011647/AABS Licence Appeal Tribunal File Number: 21-011647/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:

Asha Moghe Applicant

and

Economical Insurance Company Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Keisha De Coteau-Nedd, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Asha Moghe (the “applicant”) was involved in a motor vehicle accident on December 11, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment, and denied two treatment plans/OCF-18s. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2In submissions, both parties note that the insurer had paid $3,285.88 in medical and rehabilitation benefits, leaving $214.12 remaining within the $3,500.00 limit of the MIG.

SUBSTANTIVE ISSUES IN DISPUTE

3The following substantive 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 of the MIG?
2. Is the applicant entitled to $2,396.70 for physiotherapy services in a treatment plan/OCF-18 recommended by Urgent Care Rehab Centre and dated September 27, 2019?
3. Is the applicant entitled to $2,340.00 for chiropractic services in a treatment plan/OCF-18 recommended by Urgent Care Rehab Centre and dated May 16, 2019?
4. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

4I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

6An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Removal from the MIG can also be warranted if there is documentation of a pre-existing condition combined with compelling medical evidence stating that this condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has also determined that a psychological condition or chronic pain with a functional impairment may warrant removal from the MIG.

7The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. Here, the applicant submits that she suffers from chronic pain, and relies on Tribunal decisions 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT), 17-002907 v Aviva Insurance Canada, 2019 CanLII 22223 (ONLAT), and C.G. v The Guarantee Company of North America, 2020 CanLII 40333 to support her position that this warrants her removal from the MIG. The applicant also makes reference to a pre-existing partial thickness tear in her right shoulder that was aggravated by the accident.

8The respondent argues that the applicant has not adduced sufficient evidence that she suffers from chronic pain, nor has she supported a claim that her previous shoulder injury was aggravated by the subject accident and precluded her recovery within the MIG.

The applicant has not demonstrated that she should be removed from the MIG

9I find that the applicant has failed to demonstrate, on a balance of probabilities, that she suffers from an injury or condition that warrants removal from the MIG.

10I am not persuaded by the applicant’s primary argument that she suffers from a condition of chronic pain as a result of the accident, and warrants removal from the MIG on that basis. Most notably, the applicant has not been diagnosed with chronic pain by a medical professional. While I accept the applicant’s argument that chronic pain does not require a formal diagnosis—as she supported with reference to the past Tribunal decisions noted above, which I find persuasive in this regard only, even while I am not bound by them—the applicant presents no evidence that she suffered anything other than minor injuries in the accident, that she experienced chronic pain of any extended duration, or even that this pain was related to accident-related injuries.

11Medical evidence indicates that the applicant sustained soft-tissue injuries in the subject accident. Records from Humber River Regional Hospital on the day of the accident indicate that the applicant was treated for neck, back, and chest pain, headaches, and musculoskeletal problems. A CAT scan revealed mild degenerative changes unrelated to the accident. The applicant was prescribed acetaminophen and Tylenol. All of this is in line with the care afforded to soft-tissue injuries that fall within the minor injury definition in the Schedule.

12Treatment provided to the applicant by Dr. James Chiang, family physician, at an appointment on December 21, 2018, further indicates that she suffered soft-tissue injuries. Dr. Chiang’s clinical notes and records (“CNRs”) have been provided in their original, handwritten state and are very difficult to read. However, he seems to record the same complaints and symptoms that the applicant presented when she visited Humber River Regional Hospital.

13There is also a significant break in the applicant’s treatment that weakens her claim of chronic pain. The applicant did not attend a physician for treatment of accident-related injuries for nearly three years after this single appointment with Dr. Chiang.

14In reply submissions, the applicant claims that this gap was the result of the Covid-19 pandemic, and also that she received medical and rehabilitation treatment during this time from Urgent Care Rehab Centre. Still, the applicant does not support this claim. While I accept that the pandemic caused significant difficulties with prompt access to the health care system, the applicant cites nothing specific that caused her to have challenges making an appointment with her family doctor or another physician, in person or over the phone or by videoconference.

15In any event, even if I accepted Covid-19 as the reason for this interruption, it is unclear that the applicant’s later treatment involved an accident-related injury. When the applicant visited Dr. Sohaileh Hussein, her new family physician, on October 31, 2021, the doctor referred her to Dr. Tommy Chan, orthopaedic surgeon, for assessment of her left shoulder—not the right shoulder noted as was injured (see paragraph #16, below) in the subject accident. No evidence of a connection between this left-shoulder injury and the accident has been provided by the applicant. This leaves me unable to find a causal relationship that would link this injury to the applicant’s alleged accident-related chronic pain.

16I further find that the applicant has not demonstrated that a pre-existing injury would preclude her recovery if kept within the MIG.

17Although the applicant focuses on claims of chronic pain in her submissions regarding the MIG, she also refers to a pre-existing partial ligament tear in her right shoulder. She claims that Dr. Chiang found that this injury, which was first diagnosed as the result of an ultrasound on May 9, 2018, had been “aggravated” by the subject accident. However, as noted above, the CNRs of Dr. Chiang were submitted in their original handwritten form and are nearly impossible to read.

18Regardless, this is just a passing observation without objective medical support. The applicant has not directed me to evidence indicating that the aggravation of any pre-existing injury precluded her recovery in the MIG.

19Lastly, I prefer the medical evidence of the respondent with regard to the MIG determination. The insurer’s examination (“IE”) report of Dr. Eric Silver, general practitioner, dated August 13, 2019 is the most extensive assessment of the applicant before me. Dr. Silver diagnosed the applicant with “uncomplicated soft tissue injuries to her neck, back, anterior chest, and left knee as a result of the subject accident.” He further found no objective evidence of impairment, or of any pre-existing musculoskeletal condition that would restrict the applicant from being treated within the MIG. In addition to preferring this IE report for its thoroughness, I also assign it weight because Dr. Silver’s observations and conclusions align with the Humber River Regional Hospital reports and the CNRs of Dr. Chiang.

20For the above reasons, I find that the applicant has not demonstrated that she suffers from chronic pain or a pre-existing condition that precludes her recovery within the MIG. She remains within the MIG.

The Treatment Plans

21Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

22Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and the benefits in dispute are deemed reasonable and necessary. Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ORDER

23I find that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

iii. The application is dismissed.