Licence Appeal Tribunal File Number: 21-014661/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:
Michelle Bent
Applicant
and
Unifund
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Marcello Novello, Paralegal
For the Respondent: Symone Marlowe, Counsel
HEARD: By written submissions
OVERVIEW
1Michelle Bent, the applicant, was involved in an automobile accident on March 27, 2017, 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, Unifund Assurance 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?
ii. Is the applicant entitled to the medical services proposed by Derry Road Physiotherapy and Rehabilitation, as follows:
a) $1,842.15 for physiotherapy services, in a treatment plan dated December 3, 2020, and denied December 18, 2020; and
b) $1,842.01 for chiropractic services, in a treatment plan dated October 17, 2019, and denied February 5, 2020?
iii. Is the applicant entitled to the benefits proposed by Shoreham Chronic Pain and Assessment, as follows:
a) $2,400.00 for goods and services, as outlined in a report dated December 16, 2020, and denied January 12, 2021; and
b) $4,075.75 for goods and services, as outlined in a report dated February 2, 2021, and denied February 18, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
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 and subject to treatment within the MIG limit.
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 sustained chronic pain and psychological injuries from the motor vehicle accident (“MVA”). These are not minor injuries that can be treated within the funding limits of the MIG. As such, she should be removed from the MIG.
8The respondent submits that the applicant’s injuries are minor and that she has not established, on a balance of probabilities, the justification needed to warrant removal from the MIG.
Chronic Pain
9The applicant relies on the clinical notes and records of Dr. Tran, her family doctor, to establish that there have been continuous and ongoing pain complaints since the MVA.
10There is no indication in the notes that the applicant has been pain free since the accident. However, the notes do show that a gradual improvement during the year after the accident, as shown in these two excerpts:
September 19, 2017 “No specific concerns other than slowly increasing weight since her MVA last March due to physical limitations, decreased activity. Otherwise well”
June 8, 2018 the applicant “is presently off work (teacher) one day/week so that she can attend physio for injuries due to a MVA. Employer requesting a note for an end date to this. Pt notes much improvement since she started going regularly to physio for her back, though not yet completely resolved”
11The applicant was assessed by Dr. Eric Silver, general practitioner, for an insurer’s examination (“IE”) that took place on November 19, 2019. There were no range of motion restrictions in the cervical spine or shoulders. He palpitated her cervical spine and noted a mild tenderness no muscle spasm. He also notes mild lower back pain being reported during the examination. Dr. Silver concludes that the applicant sustained sprain and strain injuries in the MVA that have resolved and that the ongoing pain complaints are not accident related.
12About a year later on January 8, 2021, the applicant was examined by Dr. Donald Wong, chiropractor, Dr. Philip Stuart, physician, Peter Li Preti, psychometrist, and Raymond Wong, occupational therapist for a Multidisciplinary Chronic Pain Assessment (“MCPA”). The applicant reported pain in her cervical and lumbar spine. Testing showed below normal range of motion in her neck and lumbar spine. The MCPA report diagnoses the applicant with chronic pain syndrome.
13Dr. Joseph Wong, physiatry consultant, examined the applicant on January 29, 2021. The applicant reported increased levels of pain in her cervical and lumbar spine. The cervical spine had a full range of motion, but the applicant reported pain when attempting to rotate her head. Her lumbar spine was moderately stiff and tender. Dr. Joseph Wong concludes that the applicant has not healed from her injuries and diagnoses her with chronic pain.
14Two and a half years after the accident, when she was examined by Dr. Sliver, the applicant was only experiencing mild pain in her neck and lower back. The MCPA report and Dr. Joseph Wong report a subsequent increased pain levels and diagnose her with chronic pain, but neither provide an explanation on how the increase in pain can be attributed to the MVA.
15Dr. Joseph Wong had the clinical notes and records of the applicant’s family doctor and Dr. Sliver’s assessment. He knew the applicant’s pain had improved after the accident. Despite this, he diagnoses her with chronic pain without addressing how the MVA-related pain could improve over the course of time and, years later, get worse.
16The MCPA and Dr. Joseph Wong’s report are flawed by an unexplained increase in pain. For this reason, I give more weight to the report of Dr. Silver and find, on a balance of probabilities, that the applicant does not have chronic pain that can be attributed to the MVA.
Psychological injuries
17The applicant submits that the psychometric testing described in the MCPA establishes that the applicant has psychological injuries from the accident, and this removes her from the MIG.
18I disagree. Dr. Kelly McCutcheon, psychologist, examined the applicant for an IE on November 26, 2019. She interviewed the applicant and conducted psychometric testing. She determined that the applicant has mild depressive and anxious symptomology. The symptomology is so mild, in fact, that no diagnosis is possible.
19In the MCPA, the applicant is diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Post-traumatic Stress Disorder, apparently, based on the results of psychometric testing. The panel which wrote the MCPA contains a psychometrist, but no psychologist or psychiatrist. In my view, little weight can be given to this assessment as the panel lacks the professional qualifications to make such a diagnosis.
20I further note that the applicant had no diagnosable mental health condition at the time of her assessment with Dr. McCutcheon. If this changed afterwards, then those changes would need to be explained in order to account for how the accident caused the applicant subsequently developed significant mental health disorders. Again, the MCPA is flawed because of this unexplained worsening of the applicant’s mental health condition.
21For these reasons, I give more weight to the report of Dr. McCutcheon and find that the applicant did not sustain a psychological injury from the MVA.
22Having found that the applicant does not suffer from chronic pain, nor a psychological injury, I further find that she has not established, on a balance of probabilities, that she should be removed from the MIG.
23The applicant has exhausted her MIG limit of $3,500.00. Under these circumstances, an analysis of the treatment plans is not required as she is not entitled to further treatment.
Interest
24As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
Award
25As no benefits are payable, the respondent cannot be found to be liable for an award under s. 10 of Reg. 664. Under s. 10.
ORDER
26This application is dismissed.
Released: November 23, 2023
Harry Adamidis
Adjudicator