Cabungcal v. Economical Mutual Insurance Company, 2023 CanLII 103813

Citation: Cabungcal v. Economical Mutual Insurance Company, 2023 ONLAT 21-012717/AABS

Licence Appeal Tribunal File Number: 21-012717/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:

Maria Cabungcal

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Mike Pryce, Paralegal

For the Respondent: Evan Argentino, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Maria Cabungcal (“the applicant”) was involved in an automobile accident on February 5, 2021, 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 Economical Mutual Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
2. Is the applicant entitled to income replacement benefits (“IRB”) at the rate of $400.00 per week from September 9, 2021 to January 22, 2022?
3. Is the applicant entitled to a medical benefit in the amount of $4,687.41 for physiotherapy services proposed by Heartland Wellness Clinic in a treatment plan dated February 12, 2021?
4. Is the applicant entitled to a medical benefit in the amount of $198.88 ($1,298.88 less $1,100.00 approved) for physiotherapy services proposed by Heartland Wellness Clinic in a treatment plan dated April 27, 2021?
5. Is the applicant entitled to a medical benefit in the amount of $2,928.67 for physiotherapy services proposed by Heartland Wellness Clinic in a treatment plan dated May 17, 2021?
6. Is the applicant entitled to a medical benefit in the amount of $2,555.78 for physiotherapy services proposed by Heartland Wellness Clinic in a treatment plan dated October 21, 2021?
7. Is the applicant entitled to medical benefit in the amount of $2,460.00 for a chronic pain assessment proposed by Tier 1 Assessments in a treatment plan dated August 9, 2021?
8. Is the applicant entitled to interest on overdue payment of benefits?

RESULT

3The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. She is therefore subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to income replacement benefits.

5The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.

6There are no benefits owed, therefore no interest is payable.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7Section 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. 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.”

8An 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 may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits that she has pre-existing back issues and chronic pain from the accident, and therefore her injuries fall outside of the MIG.

Pre-Existing Condition

10The applicant submits that she had pre-existing back issues. However, the presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents her from achieving maximal recovery within the MIG. The applicant did not point me to any evidence that demonstrates this.

11No pre-existing conditions are identified on the disability certificate dated February 12, 2021. The clinical notes and records from Heartland Wellness Clinic also indicate that she had no pre-existing conditions, and specifically queried prior back pain. During the insurer’s examination assessment with Dr. Hanna (report dated July 12, 2021) the applicant denied any pre-existing conditions other than hypertension.

12The clinical notes and records of the family doctor note one visit for episodic back pain in September 2019. Without a medical opinion that this pre-existing problem would prevent maximal medical recovery within the MIG, the applicant’s submission falls short of meeting the requirements for removal from the MIG under s. 18(2).

13The applicant has not established that she had a pre-existing condition that warrants removal from the MIG.

Chronic Pain

14I find that the applicant has not met her burden to prove that she suffers from a chronic pain condition.

15The applicant submits that she was diagnosed with chronic pain but fails to direct me to where in the evidence the diagnosis is provided. I was unable to locate a diagnosis of chronic pain in the records. Further the applicant has not demonstrated a functional impairment as a result of ongoing pain, which is what she must demonstrate in order to be removed from the MIG for chronic pain.

16The applicant was taken to hospital on the day of the accident. X-rays were unremarkable and she was diagnosed with cervical and lumbar strain and contusions. The disability certificate, completed by Bupinder Johal (chiropractor), identified sprain and strain type injuries to the ribs, knee, neck and back, all of which fall squarely within the definition of a minor injury.

17The applicant saw her family doctor, Dr. S. Nessim, a few days after the accident and reported soreness in her neck, back, and left knee. X-rays revealed early degenerative changes of the cervical spine. She was diagnosed with myofascial strain of the cervical and thoracic spine, and contusions to her ribs and knee.

18The applicant continued to see her family doctor after the accident, but mostly for an unrelated condition. She reported ongoing pain in April, June, and August 2021, was again diagnosed with myofascial strain of the cervical and lumbar spine, and told to exercise and stretch. There were no visits between August 2021 until May 2022 when she reported having returned to work in January 2022.

19The applicant has not been diagnosed with chronic pain by the family doctor or any other health practitioner, nor has she established that she suffers from continuous pain of such severity that it causes distress accompanied by a functional impairment or disability.

20I am persuaded by the insurer’s examination (“IE”) report by Dr. M. Hanna, physician, dated July 12, 2021. The applicant reported a 70% improvement since the accident. The applicant reported that she continued to be independent with her personal care since the accident, and completed grocery shopping, and meal preparation, albeit with pain. She needed some assistance with housekeeping and laundry. The applicant denied participating in any recreational activities before or after the accident. The examination was largely normal with ranges of motion within functional limits. Dr. Hanna also reviewed the available medical evidence including imaging, and diagnosed post-traumatic headaches, and myofascial sprain/strain injuries to the spine.

21I find that the applicant has not established on a balance of probabilities that she sustained anything more than a minor injury as a result of the accident.

Income Replacement Benefits (“IRB”)

22The applicant claims IRBs from September 9, 2021, when the benefits were terminated by the respondent, until January 22, 2022, when she returned to work.

23To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

24I find that the applicant has not met her burden to prove entitlement to the IRBs in dispute. The applicant’s submissions do not refer to the test for IRBs, or why she is entitled to the benefits. The employment file indicates she worked full time as a production packer, and that her job required packing boxes, affixing labels, etc. The employment file does not identify the physical requirements of the job, such as walking/lifting requirements etc. The Employer’s Confirmation Form (OCF-2) indicates that her job involved standing and packing lids and cups of various sizes on a production line.

25The applicant has not identified what employment tasks she was unable to perform or why. The applicant has not provided any medical opinion that she satisfied the test for IRBs for the disputed period. Further, the August 19, 2021 report of Dr. Hanna indicates that she demonstrated a functional range of motion, and her neurological examination was unremarkable, and that based on all of the information and his examination, he opined that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. I see no reason to doubt this determination.

26I find that the applicant has not met her burden to prove entitlement to IRBs.

27Having determined that the applicant is within the MIG, the applicant is not entitled to the treatment and assessment plans or expenses because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

29The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. She is therefore subject to the MIG and the $3,500.00 funding limit on treatment.

30The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit.

31There are no benefits owed, therefore no interest is payable.

32The application is dismissed.