Licence Appeal Tribunal File Number: 21-015500/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:
Paula Da Silva
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bruce Stanton
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Kathleen F O'Hara, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Paula Da Silva, the applicant, was involved in an automobile accident on August 4, 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, Wawanesa Mutual 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:
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 (“MIG”)?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 6, 2020 to date and ongoing?
Is the applicant entitled to $2,374.40 for chiropractic services, proposed by Dan Shlepakov of the Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) dated January 17, 2020?
Is the applicant entitled to interest on any overdue payment of income?
RESULT
3I find the applicant’s injuries are subject to treatment within the MIG, she is not entitled to IRBs, nor the treatment plan in dispute. As no payments are overdue, the applicant is not entitled to interest.
ANALYSIS
Issue 1: Minor Injury Guideline
4For the reasons discussed below, I find the applicant has not demonstrated that removal from the MIG is warranted.
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.
The applicant’s pre-existing health condition does not warrant removal from the MIG.
7After the accident, the applicant reported complaints of low back pain, stiffness, painful flexion and extension to her family physician, Dr. Nestor Fernandez. He advised her to continue attending physical therapy treatments from the chiropractor she had been attending at Scarborough Medical Centre.
8The applicant submits she is unable to make a full recovery within the MIG because she suffered a knee injury in 2017 and she gave birth approximately two weeks before the accident. She relies on clinical notes and records from her physician, diagnostic imaging which documents the knee injury, and a functional abilities insurer’s examination conducted by Dr. Dennis Liu, chiropractor, who commented on the demanding responsibilities the applicant was shouldering in caring for her newborn while simultaneously recovering from her pregnancy and giving birth.
9The respondent submits the knee injury from 2017 had resolved long before the accident and has not aggravated or inhibited the applicant’s recovery, and that the demands of motherhood cannot be construed as a pre-existing medical condition. It relies on three Insurer Examinations (“IE”) which concluded the applicant’s accident-related injuries were predominantly minor and that she did not suffer a substantial inability to perform the essential tasks of her employment (housekeeping services).
10I find the applicant’s knee injury from 2017 does not constitute a pre-existing condition that would warrant removal from the MIG. The applicant submits evidence of the knee injury but no corresponding clinical notes or records that document ongoing complaints or complications arising from it. The respondent submits there is no evidence that the pre-existing knee injury would or did prevent her from achieving maximal recovery within the MIG, as is required for removal from the MIG under s. 18(2).
11The knee injury is documented by diagnostic imaging (MRI) on April 4, 2017. However, the applicant has not pointed me to corresponding clinical notes and records from her family physician or another medical professional that document ongoing complaints from this injury after April 2017, or that it aggravated her recovery from the accident-injuries when subjected to the limits of the MIG.
12The disputed OCF-18 proposed by chiropractor, Dan Shlepakov, notes that in relation to the 2017 knee injury, the applicant is under direct supervision of her family physician and taking medication, however there are no physician’s clinical notes to support the requirement that there be evidence under s. 18(2) that the knee injury would preclude recovery within the MIG. In the absence of any medical evidence to the contrary, I accept the findings of the three IE assessors, that the 2017 knee injury is not a barrier to recovery from the applicant’s accident injuries.
13As such, I find the applicant is not removed from the MIG due to her pre-existing knee injury.
The applicant has not proven that childbirth and caring for a newborn warrant removal from the MIG
14The applicant has not pointed me to evidence from a health practitioner that would suggest the demands of childbirth and caring for a newborn are preventing her from maximal recovery if confined to the MIG limits.
15The applicant submits that the physical and psychological demands of pregnancy, childbirth, and caring for a newborn, constitute a pre-existing health condition that prevent her from reaching maximal recovery under the MIG.
16The respondent submits that the applicant’s assertion that motherhood is a pre-existing condition has not been supported by medical evidence addressing how these demands impact her recovery from the accident.
17I accept the applicant’s submissions that caring for a newborn while simultaneously recovering from the effects of pregnancy and childbirth has impacted her physically and emotionally. However, beyond a brief mention in the disputed OCF-18 that childcare demands, among other factors, represent a barrier to recovery, the applicant has not directed me to evidence that supports her submission that recovery from childbirth is preventing her from achieving maximal recovery within the MIG. I find the applicant has not met her onus to demonstrate removal from the MIG is warranted on the basis of recovering from childbirth and pregnancy.
18In my view, the medical evidence demonstrates that the applicant’s injuries are resolving. Although the applicant submits she should be removed from the MIG on the basis that her body is still undergoing physiological changes and to ensure care of her newborn, she provides no medical documentation to support her claim. IE assessor Dr. Dennis Liu, chiropractor, who conducted the functional abilities assessment, acknowledged that the applicant’s recovery has been muted by her recent pregnancy and the demands of raising a young baby, but that her injuries were resolving normally. Neither of the other two IE assessments, by orthopaedic surgeon Dr. Fathi Abuzgaya, or psychologist, Dr. David Direnfeld, identified the demands of recovery from childbirth or caring for a newborn as a barrier to recovery from the applicant’s injuries. Dr. Abuzgaya concluded there was no residual musculoskeletal impairment attributable to her accident injuries, and Dr. Direnfeld identified no psychological injury, impairment or condition that would prevent the applicant from returning to work.
19The applicant refers me to Tribunal decision 16-002951 v. Primmum Insurance Company (“Primmum”) in support of its submission that the demands of childbirth constitute a pre-existing health condition. The respondent submits that Primmum has no application to this appeal since in that case the applicant was released from the MIG due to an accident-induced psychological impairment.
20I find no reference in Primmum regarding the effects of childbirth and infant care on the recovery from minor accident injuries. The applicant did not direct me to how Primmum relates to the current case or in what way it reinforces the argument that childbirth and newborn care are a pre-existing health condition. I therefore give little weight to this submission.
21I find the applicant has not met her burden to show, on a balance of probabilities, that her accident-related injuries merit removal from the MIG. Her submission that pre-existing health conditions warrant removal from the MIG is not supported by medical evidence. Based on the evidence before me, I conclude her injuries are predominantly minor and are subject to the MIG.
Issue 2 – Income Replacement Benefit
22I find the applicant is not entitled to an IRB beyond the termination date of March 8, 2020.
23To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-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 also identify the essential tasks of her 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 she meets the test.
24The applicant was not working at the time of the accident but she had been working for at least 26 of the preceding 52 weeks and was therefore eligible to receive IRBs pursuant to s. 5(1)(ii)A.
25The issue in dispute is whether the applicant is entitled to IRBs starting March 6, 2020 at $400.00 per week. The respondent submits the applicant was paid an IRB of $211.00 per week through to March 8, 2020. The respondent terminated the IRB on March 6, 2020, to take effect March 8, 2020, based on the IE assessments which concluded the applicant does not suffer a substantial inability to perform the essential tasks of her self-employment.
26The respondent’s evidence includes a notice of the IRB termination to the applicant dated March 6, 2020 but the notice does not include an effective date. The applicant does not refute that IRBs were paid through to March 8, 2020. In the absence of any submission or evidence to the contrary, I concur that the applicant received IRBs until March 8, 2020.
27The applicant submits that she should be entitled to IRBs because ongoing back pain is preventing her from taking on work duties. Her self-employment income is derived from private housekeeping services which require significant standing, walking, lifting and physical exertion. She submits that she only has sufficient strength to complete housekeeping in her own home and care for her newborn and pre-school aged son. She submits that she cannot complete both the essential duties of her household and the tasks of her self-employment, and that her family and household duties must take priority.
28The applicant submits that her recovery from pregnancy and childbirth, together with the demands of caring for a newborn and a pre-school aged son, and her recovery from her accident-related injuries, tax her physical strength, endurance, emotional well-being and quality of sleep. She submits that the IE assessments erred in their conclusions because they did not account for the applicant’s need to stay off work to care for her newborn and recover from childbirth and pregnancy.
29The respondent submits the applicant has not provided any expert reports or medical documentation supporting any ongoing accident-related disability beyond the IRB termination date.
30As discussed above, the three IE assessments found that the applicant does not have a substantial inability to perform the essential tasks of her self-employment. The applicant has not submitted any medical evidence that refutes the conclusions of the IE assessors.
31Although I understand and am sympathetic to the applicant’s circumstances, I am not persuaded that choosing to give priority to her housekeeping duties at home meets the eligibility test for an IRB, pursuant to the Schedule. The applicant has not demonstrated she has a substantial inability to perform the essential tasks of her self-employment, in this case, housekeeping. In fact, the applicant concedes she is able to perform the essential tasks of her self-employment at home and therefore fails to meet the threshold of eligibility for IRBs under s. 5(1) of the Schedule. She does not have a substantial inability to perform the essential tasks of her self-employment.
32I find the applicant is not entitled to IRBs because the applicant has not demonstrated that she meets the test for IRBs in the Schedule. The applicant’s evidence of performing housekeeping duties at home and reports of the IE assessors that there is no substantial inability to perform pre-accident self-employment tasks lead me conclude the applicant is not eligible for IRBs.
33I find the applicant is not entitled to further IRBs.
The OCF-18 will not be analyzed as MIG benefits are exhausted
34I find it unnecessary to consider whether the proposed treatment plan is reasonable and necessary because I have concluded the applicant is entitled only to medical and rehabilitation benefits up to the MIG limit of $3,500.00, and the respondent submitted unrefuted evidence that the applicant has already been approved for benefits to that limit. The disputed treatment plan is not payable.
The applicant is not entitled to interest
35As there are no benefits owing, no interest is payable.
ORDER
36I find that:
i. The applicant’s accident injuries fall within MIG funding limit of $3,500.00.
ii. The applicant is not entitled to IRBs beyond that which she has already been paid, to March 8, 2020.
iii. The applicant is not entitled to the disputed treatment plan, and no interest is owing.
iv. The application is dismissed.
Released: December 18, 2023
Bruce Stanton
Adjudicator