Citation: Feller v. Economical Insurance Company, 2023 ONLAT 21-014434/AABS

Licence Appeal Tribunal File Number: 21-014434/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:

Regina Feller

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Kateryna Vlada, Paralegal

For the Respondent:

George Tsakalis, Counsel

HEARD:

By written submissions

OVERVIEW

1Regina Feller, the applicant, was involved in an automobile accident on December 15, 2018, 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 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 an income replacement benefit ("IRB”) in the amount of $400.00 per week from December 22, 2018 to December 22, 2020?

iii. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) submitted October 8, 2020 and denied October 26, 2020?

iv. Is the applicant entitled to $2,880.80 for physiotherapy services, proposed by Downsview Healthcare Inc. in a treatment plan submitted November 2, 2020 and denied November 18, 2020?

v. Is the applicant entitled to $3,784.82 for psychological services, proposed by Downsview Healthcare Inc. in a treatment plan submitted February 2, 2021 and denied February 26, 2021?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

4The applicant is not entitled to an IRB, the treatment plans, nor interest.

ANALYSIS

Minor Injury Guideline (MIG)

5I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

6Section 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.”

7An 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.

8The applicant submits that her pre-existing injury of lower back pain was significantly worsened by the accident. She further submits that her recurrent anxiety and depression are accident-related and also warrant removal from the MIG.

9The respondent submits that the accident did not effect her pre-existing injury. Moreover, an insurer examination (IE) report shows that the applicant did not sustain a psychological injury from the accident. Consequently, her accident related injuries are treatable within the MIG.

Pre-existing injury

10I agree that the applicant’s low back pain pre-dates the accident. This is noted in an August 15, 2016 MRI which documents a right paracentral disc protrusion at L4-5 that compresses a nerve root.

11According to the applicant, the consultation notes of Dr. Brian Sheffield, her family doctor, show that her low back pain symptoms increased after the accident. In particular, she cites the note from November 9, 2020 that states “chronic back pain from MVA.” The applicant references this note in support of her position that the accident exacerbated a pre-existing condition. She makes no submissions on removal from the MIG based on chronic pain with a functional impairment.

12The applicant also references the consultation note from June 23, 2021 that states, “ongoing back pain since MVA 2018.”

13There is no indication in the consultation notes that the applicant complained of low back pain caused by the accident in the year after the accident. She had 18 consultations in the year following the accident. She did not mention the accident to Dr. Sheffield until November 25, 2019. During this same period, she mentions low back pain twice. On January 21, 2019, relatively soon after the accident, she indicated her low back pain was caused by lifting a couch. On December 12, 2019, she told her doctor that she strained her low back three days earlier.

14The consultation notes show that it took almost a year before the applicant even mentioned the accident to her family doctor. In that same year she never reported any accident-related pain to him. This is inconsistent with the applicant’s submission that these notes establish how her low back pain symptoms increased after the accident.

15The consultation note of November 9, 2020 states “chronic back pain from MVA.” This note is brief. It provides no insight into how Dr. Sheffield concluded that the accident affected her low back pain despite the applicant previously attributing increased low back pain to other factors that post-date the accident. Likewise, the note June 23, 2021 is equally short and provides no insight. Given all of these circumstances, I give little weight to these particular consultation notes.

16The applicant also submits that an x-ray examination report dated June 17, 2021 shows that her pre-existing back condition was worsened by the accident.

17This is incorrect. The x-ray report states:

There are small osteophytes throughout the lumbar spine. There is mild to moderate disc space narrowing at L4-5 and L5-S1, and mild disc space narrowing at L3-4, mildly progressed. Mild degenerative facet changes as well at L4-5 and L5-S1…Multilevel degenerative disc disease and facet disease as described, mildly progressed from January 2019.

18The report documents a worsening of the lumbar spine since January, 2019. However, this is attributed to degenerative disc and facet disease. There is no indication that these changes are accident related.

19The evidence cited by the applicant is not persuasive. She has not established, on a balance of probabilities, that her pre-existing low back pain was exacerbated by the accident.

20Additionally, I find that she has not cited compelling medical evidence that shows her pre-existing condition will prevent maximal recovery from accident related injuries if kept within the MIG, which she must demonstrate for removal under 18(2) of the Schedule.

Psychological injury

21The applicant relies on the report of Dr. Jacqueline Brunshaw, psychologist, and Ms. Helen Ilios, psychotherapist, dated January 6, 2021. This report diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood, and also specific phobia – driving. The causal link between the accident and the applicant’s psychological disorders is described as follows:

It is our opinion that Ms. Feller’s current diagnoses are primarily a result of her MVA on December 15, 2018, as she was reportedly functioning well prior to the subject accident. Ms. Feller openly shared that she was involved in a previous MVA in 2007, from which she had recovered, except for some minor concentration issues.

22The above fact situation differs from the information provided by the applicant in the Accident Benefits Statement dated September 19, 2019. She signed this statement indicating that she had read it and believes it to be true and complete. According to the statement, she was let go from her job prior to the accident due to lack of concentration. The statement also says that the union tried to fight for her, but she was fired on December 31, 2018.

23The applicant provided the similar information to Dr. Lorne Tugg, psychiatrist, when he assessed the applicant for an IE on December 12, 2019. In particular, she told him that she was having trouble concentrating at work due to life stress and made an error that caused her to be fired on December 9, 2018.

24Based on the report, Dr. Brunshaw is unaware that the applicant had stopped working before the accident. Instead, she states in her report that the applicant was unable to “perform her pre-accident job” because of physical and psychological limitations caused by the accident. This cannot be correct as the applicant was let go before the accident.

25The applicant went through the very difficult experience of losing her spouse. According to Dr. Brunshaw, however, this loss was experienced 10 months before the accident and the applicant continued functioning well after her husband’s passing:

She also shared that her husband had passed away in February of 2018. She noted that though she was sad and her life took a quick turn after her husband died, she was not experiencing any mental health issues. She stated that she was able to live a full and successful life and was able to work.

26Dr. Brunshaw further notes that the applicant experienced issues with concentration and memory after the death of her husband, but that these difficulties increased after the accident.

27In her written statement, the applicant states that her husband passed away two months after the accident. She also states that she is unable to operate her company, Sharpshooters, due to depression from losing her husband.

28Dr. Brunshaw gives little weight to the passing of the applicant’s husband because she mistakenly believes that this event took place well before the accident and that this event did not impact the applicant’s ability to function. This is incorrect. The applicant’s husband died after the accident. Moreover, the applicant’s functional abilities were impacted by his death as she could not operate her business because of the depression she was experiencing.

29Dr. Tugg did not diagnose the applicant with any mental health disorders related to the accident. In his view, the applicant experienced a number of stressors that may effect her functioning. These include the loss of her job prior to the accident, and the death of her husband after the accident.

30I prefer the report of Dr. Tugg because his findings are consistent with the evidence. Prior to the accident, the applicant had serious concentration issues that led to her being let go from her pre-accident employment. Soon after the accident, the applicant’s spouse passed away and this caused her to experience depression to the extent that she was unable to operate her business. Dr. Tugg’s findings are consistent with these facts.

31Dr. Brunshaw’s report is flawed by misstatements. She mistakenly believes that the applicant could not function at her job after the accident and that the death of her husband had little impact on her ability to function. These mistaken beliefs are the reasons for her causation finding. Consequently, I give little weight to her report and find that the applicant has not established, on a balance of probabilities, that the accident caused her to sustain a psychological injury.

32The applicant’s pre-existing low back pain was not exacerbated by the accident and that she did not sustain a psychological injury in the accident. Consequently, I find that she has not sustained any injuries that are outside of the definition of a minor injury in s. 3 of the Schedule.

Income replacement benefit (IRB)

33The applicant is not entitled to an IRB.

34To 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.

35The applicant submits that she is entitled to an IRB. She cites two Disability Certificates as proof of her ongoing inability to perform the essential tasks of her employment.

36The respondent submits that the applicant has worked at various jobs since the accident. It also points out that the IEs of Dr. Marchuk and Dr. Tugg establish that there are no physical or psychological limitations to her working that can be attributed to the accident.

37The applicant cites two Disability Certificates (OCF-3). Both documents check off a box indicating that she is substantially unable to perform the essential tasks of her employment.

38The first OCF-3 is dated October 8, 2019 and states “patient has difficulty in concentration, housechores (sic) and some ADLs.” The second OCF-3 is dated November 9, 2020 and states “The applicant is too symptomatic to return to work at present. She was also laid off from her job.”

39The applicant has not identified the essential tasks of her employment and in turn has not established what tasks she is unable to do as a result of the accident. The OCF-3 forms merely indicates that she has difficulty with concentration and is “too symptomatic” to return to work. This evidence is too incomplete to justify entitlement to an IRB because it fails to provide the information needed to assess whether she suffers a substantial inability to perform the essential tasks of that employment.

40Consequently, I find that the applicant has not established, on a balance of probabilities, that she is entitled to an IRB.

41As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.

42Interest is not payable as there are no overdue amounts owing.

ORDER

43I order the following:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

ii. The applicant is not entitled to an IRB, the treatment plans, nor interest.