Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-010848/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:
Princess Miller
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Mary Henein Thorn
APPEARANCES:
For the Applicant: Princess Miller, Applicant Denise Junkin, Counsel
For the Respondent: Ryland MacDonald, Counsel
Court Reporter: Carly Kocins
Heard by Videoconference: May 23 & 24, 2023, and By way of written submissions
OVERVIEW
1Princess Miller, the applicant, was involved in an automobile accident on July 2, 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, Economical Insurance, 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 (“MIG”) limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 30, 2019 to July 2, 2021?
iii. Is the applicant entitled to $145.52 ($1,245.52 less $1,100.00 approved) for chiropractic treatment, proposed by Vaughan Wellness Clinic in a treatment plan/OCF-18 (“plan”) submitted on October 12, 2019, and denied on October 15, 2019?
iv. Is the applicant entitled to $1,425.00 for physiotherapy treatment, proposed by Vaughan Wellness Clinic in a plan submitted on July 6, 2021, and denied on July 15, 2021?
v. 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?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. Correspondingly, she remains within the MIG and its $3,500.00 limit on treatment.
ii. The applicant is not entitled to a non-earner benefit.
iii. As the applicant remains within the MIG, and the MIG limits have been exhausted she is not entitled to the treatment plans in dispute, nor interest or an award.
ANALYSIS
Should the applicant be removed from the MIG?
4I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
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.” An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
6The applicant reported and sought treatment for injuries to her upper back, neck, and left shoulder and headaches two days after the accident. The applicant submits that due to ongoing pain and functional limitations, she disengaged from pre-accident activities and has gained a significant amount of weight, over 76 lbs. Due to the weight gain, which she attributes to her inability to function due to her injuries from the accident, she reports that she now has ongoing chronic back pain and therefore she should be found outside of the MIG.
7She is relying on the opinion of the following; Dr. Luu, General Practitioner, Dr. Olanrewaju, Family Doctor, Dr. Bertolo, Chiropractor, and Dr. Poon Dietitian in support of her position that her injuries fall outside of the MIG.
8The respondent disagrees with the applicant’s position that the accident caused he weight gain and as a result she has chronic pain in her back. At the time of the accident and for months later, the applicant did not report any issues with her lower back. She attended physiotherapy/massage treatment for her upper back, neck, and left shoulder for approximately three months. It states that the three month timeline that she attended is in line with the expected duration for someone to heal from a MIG injury. The applicant was approved for eight sessions of chiropractic treatment and seven sessions of massage therapy for a total of $1,100.00 as of October 15, 2019. The respondent submits that the applicant stopped attending treatment for massage and chiropractic services on or around October 2019 even though she testified that it was helpful in her recovery. It was not until December of 2019 that she started complaining about lower back pain to any treating practitioners. The respondent points to the fact that she did not exhaust the balance of the approved treatment plan which only means that she had recovered from the accident.
9Nearly 9 months later, the applicant started attending treatment using the unused balance of the pre-approved treatment by the respondent. The respondent raised the issue of credibility and argues that the applicant had healed from her injuries and that she used the approved funding to remedy a newly aggravated lower back injury. The applicant had a significant shift in roles, pre-accident she worked as a Personal Support Worker which required a lot of movement to then changing positions to being at home fostering children and having to sit for long periods of time at her computer writing reports. The respondent argues the change from regularly moving (exercising) to a sedimentary role is the direct cause of her weight gain and her weight gain is the reason for the chronic pain in her lower back. The accident is unrelated to her lower back chronic pain. The respondent also submits that the applicant has back issues which predate the accident and a long history of fluctuating weight and obesity. It relies on the fact that the accident was minor.
10The respondent relies on the opinions of Dr. Lee, Physiatrist and Mr. Kassam, Occupational therapist.
11The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
12The applicant submitted her medical reports from Main Street Medical Clinic dated July 4, 2019, the report shows that due to the motor vehicle accident, she complained of pain to her upper back, left shoulder and neck. There was no indication of lower back pain. X-rays were taken, an assessment was conducted, and she was diagnosed with musculoskeletal strain. She was referred to physiotherapy/massage treatment from Vaughn Wellness Centre, she attended for approximately three months, from July 10, 2019 to as far as the applicant can recall October 3, 2019. During testimony, the applicant stated that she felt relief from her pain following treatment and reported her pain intensified once she stopped. She also testified that she thought there wasn’t any further funding to continue treatment but was not able to provide the Tribunal with a reasonable explanation as to why she stopped receiving treatment and then resumed from July 14, 2020 to August 12, 2020 and from June 25, 2021 to August 23, 2021.
13The applicant argues that due to her injuries from the accident, she had limited functional ability which caused a significant amount of weight gain. The excess weight caused lower back issues which has resulted in ongoing, chronic lower back pain. It is her position that the prolonged chronic pain warrants the removal from the MIG.
14At the beginning of the hearing, she testified that her life had changed significantly. She went from being active to being unable to continue with her daily activities. She was struggling to shower and get dressed by herself. Her family supported her by doing the household chores and taking care of the day to day necessities.
15The applicant submitted a report from the family doctor she saw at the walk in clinic, Dr. Luu. In her notes it states, “prolonged sitting on the computer” and that she was doing “projects at home”. The applicant testified that “doing projects at home” meant her “day-to-day life” living in her foster care home with foster children. She explained under oath that home projects included “household duties, heavy laundry, and long cooking”. She also testified that she was required to submit a large number of reports to the agency she works for which required long periods of sitting at her computer that was a change from what she was doing before as a PSW. She also testified “I have to teach them how to clean, I have to teach them how to do their own laundry, how to make meals, stuff like that.” and “Now, here at this house there would have still been a lot of cleaning, because I have foster Children……I engage them in landscaping, putting in flowers,…..we’re always pretty busy…….” . During cross-examination the applicant changed her testimony. She withdrew her explanation of what “household projects” meant and stated she had no idea what Dr. Luu meant in the report.
16I find her testimony contradictory to her claim that she is having function ability issues and that it is her injuries that are not allowing her to move and exercise more.
17I am further persuaded by the evidence provided by the applicant regarding her weight gain. She submitted three reports authored by Dr. Olanrewaju dated September 22, 2020 and October 7, 2020 and Dr. Poon dated November 2, 2020. Both acknowledge in their reports that the applicant has had a history of fluctuating weight gain and both reports encourage exercise and healthy eating. Neither report indicates there is a functional limitation hindering the applicant from engaging in the activities of her daily living.
18The applicant has not provided me with any evidence throughout her testimony or by way of expert reports that there are function ability issues which caused the applicant to gain excessive weight and as a result, now is experiencing chronic pain in her lower back. Even if I were to find her excessive weight gain was attributed to the accident, the applicant has not pointed me to case law, or sections of the Schedule whereby weight gain caused by an accident related injury is sufficient enough to warrant the removal from the MIG. Given the totality of the evidence before me, I find the applicant has not substantiated her claim that she should be removed from the MIG.
19I find the applicant’s injuries are within the MIG.
The applicant is not entitled to a non-earner benefit
20I find that the applicant has not established that she is entitled to a non-earner benefit.
21Section 12(1) of the Schedule provides that an insurer shall pay a Non-earner Benefit 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) of the Schedule provides that “a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
22The applicant says that leading up to the accident she was not working due to complications with her work visa. However, just prior to those complications she was working a Personal Support Worker and as a parental relief worker. She had intentions of retuning to being a PSW as soon as her visa was sorted out. She also earned money as a seamstress and did hair (braids) prior to the accident.
23Since the accident the applicant says that she is unable to return to return to work as a PSW since she cannot lift, stand, and endure the demands of that job. She also cannot earn money as a seamstress or braiding hair.
24It is the respondent’s position that the applicant does not meet the test for non-earner benefits, she has not shown that she has suffered an impairment that continuously prevents her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
25She acknowledges she is working and receiving a per diem as a foster parent managing a household with children in her direct care. The duties as a foster parent is not unlike the duties the applicant described in her last position as a PSW or parental relief worker. The applicant testified that, in her previous roles she assisted with personal care, administered medication, would cook light meals and take her client to appointments. She also testified that she does many of those things currently.
26On September 25, 2020, Dr. Olanrewaju prepared a Medical Report for Johnson Children’s Services. The report indicated that the applicant did not have any specific concerns. The Medical Report certified that the applicant was “medically fit” to perform tasks related to working with vulnerable children and youth.
27I find that the evidence with respect to the applicant’s activities as a foster parent is inconsistent with her allegation that she is continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
28Also, in support of the respondent’s position, an occupational therapy assessment by Mr. Rasul Kassam, on September 12, 2019, notes “Ms. Miller continues to be independent in her self-care tasks, continues to access the community via driving, continues to provide PSW services albeit reduced hours, and is able to perform her light housekeeping tasks utilizing activity modification techniques, Ms. Miller does not suffer a complete inability to carry on a normal life.”
29She also testified that she was training a new “parent relief worker” who has taken over her last position. This required her to either train her replacement in person at her former residence or advise her over the phone. “It was an understanding that I was still going to helped out and a part of helping out would have been to train the new person…” In Mr. Kassam’s report, the applicant reported to him that she assisted with light meal preparation, helping her to the washroom, caregiving services to Melissa who had down syndrome, and continual training of the PSW.
30The applicant testified that she has not notified her employer that she has a complete inability to carry on the duties expected of her as a foster parent. She has been fostering since before 2020, meeting the requirements to be a foster parent including cooking, cleaning, day to day errands, laundry, taking care of others, and managing a household.
31I do not see a substantial change in the applicant’s day to day life based on her testimony and the medical reports provided.
32Based on the evidence before me, I am not persuaded the applicant has met the non-earner benefits test.
The Treatment Plans
33As the applicant has been found to remain within the MIG, and as the MIG has been exhausted and all of the treatment plans in dispute propose treatment outside of the MIG, it follows that she is not entitled to these plans, or interest.
ORDER
34I find that:
i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and subject to the $3,500.00 limit on treatment.
ii. The applicant is not entitled to non-earner benefits.
iii. No interest is payable.
iv. No award is payable.
Released: December 8, 2023
Mary Henein Thorn Adjudicator