Licence Appeal Tribunal File Number: 22-001259/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:
Ada lliabaev
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Kateryna Vlada, Paralegal
For the Respondent:
Ruebe James, Counsel
HEARD:
By written submissions
OVERVIEW
1Ada lliabaev, the applicant, was involved in an automobile accident on August 15, 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, The Dominion of Canada General 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 limit? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 15, 2019 to date and on-going?
iii. Is the applicant entitled to $2,575.12 for physiotherapy services, proposed by Downsview Healthcare in a treatment plan dated September 16, 2019?
iv. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Downsview Healthcare, in a treatment plan dated May 29, 2020?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3This application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
4I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
5Section 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.”
6An 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. In all cases, the burden of proof lies with the applicant.
7The applicant submits that she has been diagnosed with chronic pain in her lower back and right elbow, radicular pain in her right hand, and chronic headaches. She has also been provisionally diagnosed with depression and anxiety. She submits that her injuries are not minor and, in particular, that her psychological injuries cannot be treated within MIG limits.
8The respondent submits that the applicant sustained sprain and strain injuries in the accident that are not chronic in nature. As well, she does not meet any of the six criteria for chronic pain set out in the American Medical Association Guides, 6th Edition (Guides). Additionally, there is no evidence showing that the applicant has a psychological injury. The respondent submits that her injuries are minor and treatable within the MIG.
9The clinical notes and records of Dr. Sameh Basta, the applicant’s family doctor, show that she reported pain in her back and elbow in the year following the accident. Dr. Basta refers to these injuries as being “chronic.” However, there is insufficient evidence showing that this pain is causing functional impairments which the applicant must demonstrate for removal from the MIG.
10The applicant relies on the clinical notes and records of York Medical Walk-in Clinic dated April 6, 2020, found on page 5 of Tab 3 in her brief. I note that Tab 3 contains records from August 23, 2016 to January 15, 2020. There are no records from April 6, 2020. The page referenced by the applicant states:
Pain has become worse
very hard to use rt arm due to severe pain in rt lebow (sic)
pain is everyday and worse when using rt arm
works as a home support worker and it has affected her work performance too
11This record confirms that the applicant reported pain two weeks after the accident. It also shows that this pain affected her job performance. However, this report of pain occurs soon after the accident and it is not evidence of long standing pain complaints.
12In regard to completing her activities of daily living (ADLs), the only evidence referenced by the applicant is the treatment plan dated May 12, 2020 for a psychological assessment. The treatment plan says that pain limits her ability to perform ADLs. However, a treatment plan alone is not compelling evidence that meets the applicant’s evidentiary burden. Corroborating evidence is still needed to support a finding that the applicant is functionally impaired and should be removed from the MIG. As there is no corroborating evidence, I find that the applicant has not established, on a balance of probabilities, that she has chronic pain with functional limitations.
13The applicant cites the same treatment plan as proof of having the psychological injuries of depression and anxiety. Again, a treatment plan alone cannot meet the applicant’s evidentiary burden without corroborating evidence. For this reason, I find that the applicant has not established that she has a psychological injury caused by the accident.
14The applicant has not satisfied me that she has chronic pain with a functional impairment, nor a psychological injury. Thus, I find that she has not established, on a balance of probabilities, that her injuries cannot be treated within MIG limits.
Non-earner benefit (NEB)
15I find that the applicant is barred from proceeding with an NEB under s. 33(6) of the Schedule.
16Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
17The applicant makes submissions on her entitlement to the NEB. She makes no submissions on the issue of not having selected a benefit under s. 35, nor the suspension of her claim for benefits under s. 33(6) of the Schedule.
18The respondent submits that the applicant is precluded from proceeding with a claim for a NEB as she has not elected a benefit under section 35 of the Schedule.
19Section 35(1) of the Schedule states:
If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive. (emphasis added)
20The respondent submits that the applicant’s disability certificate, dated September 20, 2019, indicates that the applicant worked at the time of the accident and was substantially unable to perform the tasks of her employment. The disability certificate also notes that the applicant suffers a complete inability to carry on a normal life. Under these circumstances, the applicant may qualify for the income replacement benefit (IRB) or the NEB. In a letter dated February 4, 2020, the respondent gives notice to the applicant to elect a benefit, either the IRB or the NEB, pursuant to section 35 of the Schedule.
21The Schedule requires an insurer to give a notice to the applicant to elect a benefit within “10 business days” after receiving the disability certificate. The language in the Schedule makes clear that the respondent must comply with this temporal requirement.
22Four months passed between the completion of the disability certificate and the issuance of notice to elect a benefit. There is no indication before me that the respondent satisfied the temporal requirement in 35(1) of the Schedule. Consequently, I find that section 35 is not engaged.
23There is ambiguity in the applicant’s claim for benefits under Part II of the Schedule. Section 12(1)(1) of the Schedule says that NEB only applies if an insured person is not entitled to an IRB. There does not appear to be a dispute that the applicant was working at the time of the accident. The respondent wrote to the applicant on March 6, 2020 indicating that her claim for the IRB and NEB was suspended under 33(6) for failing to provide additional information needed to assess her entitlement to these benefits.
24Again, the applicant makes no submissions on the suspension of her claim for benefits under s. 33(6).
25In my view, the respondent’s request for additional information and suspension of benefits under s. 33(6) is valid. Consequently, I find that the applicant is barred from proceeding with an NEB pursuant to s. 33(6) of the Schedule.
26According to a benefit statement dated March 17, 2020, the applicant has $1,090.56 remaining in the MIG. As such, neither of the treatment plans in dispute are payable because they exceed the limit of available benefits.
Interest
27As there are no overdue benefits, no interest is payable pursuant to s. 51 of the Schedule.
ORDER
28The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
29The applicant is barred from proceeding with an NEB pursuant to s. 33(6) of the Schedule.
30The applicant is not entitled to the treatment plans, nor interest.
Released: November 23, 2023
Harry Adamidis
Adjudicator