Citation: Hinds v. Economical Insurance, 2023 ONLAT 21-000018/AABS

Licence Appeal Tribunal File Number: 21-000018/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:

Jodi Hinds

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Meghan Walker, Counsel

For the Respondent: Hermina Nuric, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Jodi Hinds (“the applicant”) was involved in an automobile accident on October 17, 2019, and sought benefits from Sonnet Insurance Company (“the respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The respondent characterized the applicant’s injuries as predominantly minor injuries, subject to the Minor Injury Guideline (“MIG”) and denied certain treatment plans. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit for minor injuries?
2. Is the applicant entitled to a medical benefit of $1,299.93 for chiropractic services, recommended by Durham Spine Care and Rehabilitation Centre in a treatment plan dated August 17, 2020?
3. Is the applicant entitled to a medical benefit of $2,413.30 for physiotherapy services, recommended by Active Rehabilitation and Chiropractic in a treatment plan dated February 5, 2020?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any 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 the treatment plans in dispute because they proposed goods and services outside of the MIG and the $3,500.00 funding limit.

5No interest or award is payable.

6The application is dismissed.

Background

7The applicant was the driver of a vehicle which was rear-ended while approaching an intersection to make a left turn into a plaza. The applicant sought no medical attention that day, but attended the office of her family physician, Dr. Awad, two days later with complaints of pain in her upper back, neck, and chest. She returned a few days later and reported feeling anxious. Dr. Awad suggested Ativan for anxiety, but the applicant refused and advised she wanted to “get over it” without medication. She saw her doctor on two occasions for unrelated visits, and two visits between in December 2019 and January 2020 for neck and upper back pain.

8The applicant missed 3 or 4 days from work, and then returned as a program coordinator at a hospital on modified hours until she resumed her full-time position in November 2019.

9The applicant denied any pre-existing conditions and submits that her pre-accident medical history is unremarkable.

10The applicant claims that she suffers from a chronic pain condition following the accident, which falls outside of the minor injury definition in section 3 of the Schedule. She relies on clinical notes and records of her family doctor and the treatment providers. The respondent submits that the applicant sustained a minor injury and that the insurer’s examinations (“IE”) concluded the same.

ANALYSIS

Minor Injury Guideline

11Section 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 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.”

12The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

13For the reasons that follow, I find that the applicant sustained a minor injury as a result of the accident.

The applicant does not suffer from an accident-related chronic pain condition

14I find that the applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident.

15The applicant submits that she was diagnosed with chronic pain syndrome, that her back pain is chronic as it has persisted for over six months, and that her injuries prevent her from engaging in substantially all of her pre-accident activities without pain or restriction. She submits that she continues to experience daily severe headaches and chronic pain in her neck and upper/mid back.

16It is well established by this Tribunal that chronic pain cannot be inferred solely based on the length of time elapsed since the injury. The applicant must show a diagnosis of chronic pain syndrome or demonstrate that her chronic pain has resulted in functional impairment.

17In support of her claim, the applicant relies on the notes from her initial assessment with Ranjith Mahendranathan, a chiropractor, which indicate that he assessed her as having chronic cervical spine, thoracic spine myofascial pain syndrome, facet dysfunction, and tension headaches. This Tribunal has consistently found that a chiropractor may treat chronic pain, but that it is beyond the scope of a chiropractor’s practice to provide a diagnosis of chronic pain (see for example: S.A. and Intact Insurance Company, 2020 CanLII 57372 (ON LAT); M.J. and The Dominion of Canada General Insurance Company, 2020 CanLII 45482 (ON LAT); Ambigapathy and Allstate Canada, 2021 CanLII 114042 (ON LAT)). Therefore, no weight is given to the diagnosis of chronic pain syndrome by Dr. Mahendranathan, as it is outside the scope of his practice.

18The clinical notes and records of Dr. Awad do not substantiate a chronic pain diagnosis, nor pain with functional impairment. Nor has Dr. Awad referred the applicant to a chronic pain clinic.

19The medical evidence indicates that the applicant suffered from predominantly soft-tissue injuries as a result of the accident. The applicant has not demonstrated functional impairment as a result of her accident-related pain that would warrant removal from the MIG. The clinical notes and records make reference to her pain being aggravated by extended sitting or cleaning her home and had headaches every other week. Dr. Mahendran’s notes explain that she had difficulty with meal prepping because of her back pain and headaches. The applicant had returned to work within days of the accident and resumed full time hours within a month.

20According to the IE report dated March 1, 2021 of Dr. Ahmad Belfon, a general practitioner, the applicant reported that she also started a candle-making business in November 2020, cooked and did most of the cleaning tasks around the house, continued to care for her autistic son, and attended an immigration consultant course since the accident. Dr. Belfon acknowledged that her myofascial pain persisted, however her sprain/strain injuries and tension headaches were classified as minor injuries.

21I find that the applicant has not met her burden to demonstrate that she sustained an injury that is not included in the minor injury definition in section 3 of the Schedule. As a result, she is subject to the MIG.

22The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The applicant is not entitled to these benefits because she sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

24The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Having found no benefits payable, the applicant is not entitled to an award.

ORDER

25The 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.

26The applicant is not entitled to the treatment plans in dispute because they proposed goods and services outside of the MIG and the $3,500.00 funding limit.

27No interest or award is payable.

28The application is dismissed.