Citation: Treen v. The Commonwell Mutual Insurance Group, 2023 ONLAT 21-014462/AABS

Licence Appeal Tribunal File Number: 21-014462/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:

Amanda Treen

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Agal Lankeswaran, Paralegal

For the Respondent:

Cecil Jaipaul, Paralegal

HEARD: In Writing

OVERVIEW

1Amanda Treen, the applicant, was involved in an automobile accident on August 20, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, The Commonwell Mutual Insurance Group, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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 limit of the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from September 20, 2020 to the date of the case conference?

iii. Is the applicant entitled to $3,050.72 for chiropractic services in a treatment plan recommended by Whitby Wellness Centre (dated January 5, 2021)?

iv. Is the applicant entitled to $1,575.11 for chiropractic services in a treatment plan recommended by Whitby Wellness Centre (dated June 12, 2021)?

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

4The case conference report and order (released October 25, 2022) stated that the two treatment plans were for physiotherapy assessments. However, the applicant’s submissions defined the disputed services as chiropractic services.

5The case conference report and order also noted that the $3,500.00 available to the applicant under the MIG had not been exhausted. The parties were directed to “identify the amounts remaining.” I was not directed in the parties’ submissions to what the remaining amount is.

RESULT

6The applicant remains within the MIG.

7The two treatment plans are not payable.

8The applicant is not entitled to an NEB.

9No interest is owing to the applicant.

RESPONDENT’S MOTION TO STRIKE PORTIONS OF THE APPLICANT’S REPLY

10Only the first 5 pages of the applicant’s reply submissions will be considered for this written hearing.

11The respondent filed a Notice of Motion (signed July 21, 2023) seeking the following relief: “The respondent requests that the Tribunal not consider anything after page 5 of the applicant’s reply.” The respondent alleged that the applicant’s reply included 8 pages of submissions, a breach of the page limit set at the case conference. The case conference report and order provided a limit of five pages for the applicant’s reply. There is no order extending this limit.

12The applicant was provided an opportunity to respond to the motion. The Tribunal did not receive a response from the applicant.

13I am satisfied that the applicant’s reply does not comply with the page limit set in the case conference report and order. In the applicant’s reply, there are two cover pages, six pages of submissions, and a two-page letter from her representative to the Tribunal. Since the letter includes arguments from the representative (and not, say, a medical opinion from a doctor), I find this letter is effectively two additional pages of submissions. Together, the reply contains eight pages of submissions, so I did not read past page five of the eight pages.

ANALYSIS

Applicant Remains Within the MIG

14I do not find the applicant has established—on a balance of probabilities—that she sustained a non-minor injury as a result of the accident. As such, she remains within the MIG.

15The main means of removal from the MIG is when an insured person can demonstrate that they have sustained an impairment that is not “predominantly a minor injury.” A “minor injury” is defined in the Schedule at s. 3(1) as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. This definition does not include psychological impairments and chronic pain. In all cases, the burden of proof lies with the insured person.

16The applicant’s submissions focused on chronic pain and psychological impairments.

Chronic Pain

17I conclude the applicant has not established that she sustained chronic pain from the accident, as I do not find she has established that her functionality has been impaired by accident-related pain. The Tribunal’s ruling in Stephens v. Unifund Assurance Company, 2022 CanLII 81514, provides helpful guidance for deciding MIG claims based on chronic pain (at para. 16):

For chronic pain to take an applicant out of the MIG, the applicant must provide medical evidence that accident-related injuries have had a detrimental impact on functionality. This evidence must support a claim that the applicant’s functionality has been impaired and that chronic pain is the cause of that disability.

18The applicant claimed the accident left her with ongoing pain in the upper body and tailbone. The applicant supported these submissions by citing records from her family physician, Dr. Ripple Dhillon, and from the Whitby Wellness Centre. She also cited records from Dr. Anureet Garg, pain specialist.

19The respondent argued that none of the signs of chronic pain are present: no dependence on medication; no withdrawal from social settings; no secondary deconditioning, etc. Then, by highlighting her post-accident employment as a PSW and a lack of compelling medical evidence, the respondent submitted that the applicant has not demonstrated that the accident caused any functional limitations. The respondent also supported its position on chronic pain by highlighting the report from its assessor, Dr. Alborz Oshidari (dated May 10, 2021), and it challenged the causal link that Dr. Garg drew between the accident and his findings. Finally, the respondent took issue with the lack of references to specific, medical records in the applicant’s submissions.

20In reply, the applicant did not directly address the allegations about a lack of references to medical records. She did add that the respondent’s denial of further treatment has negatively impacted her recovery, and that symptoms from an accident may take some time to present themselves.

21As a preliminary note, I find the applicant cited few, specific records in her initial submissions. The applicant’s initial submissions mainly highlighted large blocks of medical records in a general fashion, with few specific entries being cited. For instance, the applicant argued [italics in original]: “Dr. Ripple Dhillon (family physician) provides compelling evidence that the Applicant’s injuries are not predominantly minor in nature.” There is no citation directing the reader to any specific entry from the almost 100 pages included from Dr. Dhillon, aside from referencing the records from Dr. Garg. A similar lack of detail was provided about the over 90 pages from Whitby Wellness Centre.

22The applicant did point to several, specific entries in reply, but this failure to present her case in a more comprehensive fashion at first instance meant the respondent did not have the opportunity to use its submissions to respond in a fulsome manner. Rather, the respondent was left to guess what specific entries the applicant was referencing this medical evidence.

23However, even if I consider the specific entries cited in her reply along with the few records cited in her initial submissions, I do not find the applicant has established a non-minor injury, be it chronic pain or a psychological impairment.

24Again, the applicant supported her claim for chronic pain by arguing there is extensive evidence of accident-related pain and related limitations. I accept that there is some support for ongoing pain complaints in the records cited by the applicant. Most notably, Dr. Garg’s notes detail findings of chronic pain over a series of visits from June 2022 to early 2023. Further, in a Disability Certificate (“OCF-3”) from Dr. Branko Milen, chiropractor (dated September 3, 2020), the applicant’s accident-related impairments were listed as: WAD2, back pain, and a series of “Superficial” and soft tissue injuries. Dr. Milen also reported that the applicant was using Tylenol and Advil. Finally, in the two records from Dr. Dhillon created shortly after the accident (that is, September 3 and 17, 2020), the applicant stated she was receiving physiotherapy to help with her accident-related impairments.

25There are also complaints of accident-related pain in the report from Dr. Oshidari, and—despite the lack of specific references to individual entries—the extensiveness of the Whitby Wellness Centre treatment records lends credence to the existence of ongoing impairments following the accident. Finally, I note that the applicant cited an x-ray report from July 29, 2021 that made reference to tailbone pain, though there was no reference to the accident in the report.

26The respondent challenged these pain complaints by questioning whether a link can be drawn between the complaints and the accident. Specifically, it highlighted the length of time between the accident in August 2020 and her first visit with Dr. Garg in June 2022. I, too, have questions about the limited number of medical records that the applicant cited between the accident and the visits with Dr. Garg. Yet, even if I accept that her pain complaints from 2022 onward are accident-related, I still find the applicant has not satisfied her onus for establishing chronic pain. Specifically, I find the applicant has not demonstrated any functional limitations caused by this pain in the evidence before me.

27Key to my finding is the applicant’s return to work shortly after the accident. Dr. Oshidari described the applicant’s post-accident work history in his report:

At the time of the accident, she was working at a housekeeping department in a retirement nursing home as an environmental assessor. After the accident, she stopped working for two months. Then, she went back to work until the end of November 2020, when she started a new job as a PSW. Since then, she was working full time as a PSW until the present time in the same nursing home.

The ability to return to work two months after the accident (and continue until this IE assessment took place on April 30, 2021) is a strong indication that the applicant’s functionality was not impacted by this pain in any significant fashion.

28Dr. Oshidari also summarized the applicant’s activity levels as follows: “At the present time, she remains independent in all activities of daily living, but with discomfort and pain. She is able to perform her house chore duties. She does drive a car.” Though this description is sparse and there is discomfort in these actions, it provides additional support for the position that the applicant is not experiencing functional limitations due to the accident.

29Similarly, in the early stage of her recovery, the applicant was reporting that her accident-related pain was “tolerable” and she planned on returning to work. Specifically, the applicant described her pain during her September 17, 2020 visit with Dr. Dhillon as “tolerable and more of like a nuisance kind of pain”. There was also an indication that the applicant was preparing to return to work the following month.

30Further, there are few references to functional limitations in the records from Dr. Garg that the applicant cited. For example, on June 22, 2022, Dr. Garg wrote: “The pain interferes with her sleep and function.” There are no details provided about how pain is interfering with her “function”. On the other hand, this same record noted that the applicant was working “Full time” as a PSW. In later entries, Dr. Garg expands on her ability to work by noting that the applicant “works with 6-7 residents at a time as a PSW.” Again, I find this ability to work following the accident raises questions about whether her accident-related pain impacted her functionality, and, by extension, Dr. Garg’s conclusion that pain was impacting her function.

31Overall, while I accept that the applicant experienced pain following the accident, I am not satisfied—on a balance of probabilities—that she has established that it is chronic pain meriting removal from the MIG. Due to the limited, functional impacts demonstrated in the evidence before me, I find this pain is better understood as clinically associated sequelae to otherwise “minor” injuries.

Psychological Impairments

32The applicant also submitted that the accident left her with sleep and mood issues. She mainly supported her claim of an accident-related psychological impairment by citing “the psychological assessment” from Dr. Dhillon. There is no date provided for this “assessment”, and the only records that appear to fit this description are two questionnaires (entitled the “GAD-7” and the “PHQ-9”) and a related medical note from April 28, 2022.

33On the GAD-7, the applicant’s scored 4 out of 21—a rating that falls below the “mild anxiety” range. The applicant reported that the problems identified in the questionnaire made work, home life, and social relations “Somewhat difficult”. On the PHQ-9, the applicant scored an 11 out of a possible score of 27. There is no indication on the questionnaire about the relative severity of this score. The applicant again reported on the PHQ-9 that the problems identified in the questionnaire made work, home life, and social encounters “Somewhat difficult”.

34The applicant connected her mood complaints to the accident during the related visit with Dr. Dhillon on April 28, 2022: “feels angry- since MVA… feels low in mood now due to ongoing suffering”. As a result of the questionnaires and this visit with the applicant, Dr. Dhillon later sent a referral to the Ontario Shores Centre for Mental Health Services. I was not directed to any record detailing the follow up to this referral.

35I do not find the applicant has provided a sufficient evidentiary basis to demonstrate that her psychological complaints merit removal from the MIG, because I am not satisfied that the applicant has established that these psychological complaints from April 2022 are accident-related. The accident took place almost two years before, and there are few complaints of a psychological nature prior to this visit. For instance, even though the OCF-3 recommended a psychological assessment, none of the impairments reported on this form were psychological in nature. Relatedly, even though psychological complaints were noted in the applicant’s initial application for benefits, this application was signed a day after Dr. Milen completed the OCF-3 with no psychological impairments listed. There are also no references to psychological complaints in the two September 2020 notes from Dr. Dhillon.

36Further, even if I accepted that these psychological complaints are accident-related, I find the relatively minor severity of the complaints means they are better understood as clinically associated sequelae to otherwise “minor” injuries. For instance, even though there are brief references to depression and anxiety in Dr. Garg’s records, there is no indication of how these complaints are impacting the applicant’s functionality. I also have no compelling explanation for how the responses the applicant provided on the two questionnaires mentioned above would establish the existence of a psychological impairment that merits removal from the MIG. In fact, the GAD-7 listed the applicant’s score as below the “mild” range of anxiety.

37Taken together, I am not satisfied that the applicant has established that she sustained an accident-related psychological impairment that merits removal from the MIG.

Pre-Existing Medical Condition

38The applicant made a brief reference to a “pre-existing physical injury” in her initial submissions [italics in original]: “Whitby Wellness Centre provides compelling evidence that the Applicant has a pre-existing physical injury (which prevents the Applicant from achieving maximum recovery)”.

39Section 18(2) of the Schedule states that insured persons may be removed from the MIG if they establish that they had “a pre-existing medical condition that was documented by a health practitioner before the accident” that hinders treatment of an otherwise “minor injury”. I do not find the applicant has met this standard. In addition to a lack of references to any specific notes, the applicant did not start attending Whitby Wellness Centre until after the accident. This timeline means there cannot be any records created by the clinic that would document a pre-existing medical condition “before the accident”.

40The applicant remains subject the funding limit of the MIG. The case conference report and order stated that part of the funding from the MIG remained unspent funding that could be used to cover some of the services sought in the two disputed treatment plans. However, the parties did not direct me to what the remaining amount in the MIG is, if anything. As such, I do not know whether any funding is left at this time to cover a part of the two plans.

41In any event, the applicant has not provided the Tribunal with the two, disputed treatment plans. Without them, I cannot assess whether the proposed treatment goals, services, and costs are reasonable and necessary, pursuant to s. 15(1) of the Schedule. Taken together, I find the two treatment plans are not payable.

Applicant is Not Entitled to an NEB

42I do not find the applicant is entitled to payment of an NEB.

43Section 12(1) of the Schedule states that an insured person is entitled to an NEB in the amount of $185.00 per week if they sustain an accident-related impairment that causes “a complete inability to carry on a normal life”. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” Insured persons have the onus of establishing entitlement to an NEB on a balance of probabilities.

44The applicant supported her claim for an NEB by citing many of the same records she relied on for her position on the MIG, namely, Drs. Dhillon’s and Garg’s records. The applicant also again highlighted the OCF-3 from Dr. Milen, which found she suffered a complete inability to carry on a normal life for 9-12 weeks. The applicant claimed these records show how pain has affected her activities of daily living, while her mood has affected sleep and function. She also argued in her submissions that “her health, hygiene, grooming, dressing, sports, sleep and chores around the house” have all been negatively impacted by the accident.

45The respondent claimed that—aside from the OCF-3—the applicant has not provided any medical opinion that shows she met the standard for entitlement to the NEB. The respondent also claimed the applicant has not provided any submissions or evidence about her “pre and post-accident activities and functioning”, such that she has not met the test established in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”).

46The Court of Appeal for Ontario’s decision in Heath provides guidance when determining entitlement to the NEB. Importantly, at paragraph 50, Justice Simmons wrote there must be a comparison of an insured person’s pre- and post-accident activities and life circumstances. This comparison must be assessed over a reasonable period of time prior to the accident, with all pre-accident activities considered.

47In addition to my findings above regarding post-accident functional limitations, I further find the applicant has not provided sufficient evidence to allow me to assess any potential changes to her pre- and post-accident activity levels. When I review the records cited by the applicant, I find there is little information about her pre-accident life to assess what, if any, effect the accident had. For instance, when asked to explain why the applicant suffered from a complete inability to carry on a normal life, Dr. Milen wrote in the OCF-3: “Difficulty in bending , Lifting weights , prolonged standing.” I do not find this statement provides enough detail to assist in determining the applicant’s pre-accident activity levels. There is a similar lack of detail in the records from Drs. Dhillon and Garg. Therefore, despite the reference to significant changes to her activity levels made in submissions, I do not find the applicant has provided sufficient evidence to support this claim. Taken together, she has not met her onus to establish entitlement to an NEB.

No Interest is Payable

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No overdue payment is owing to the applicant, so no interest is owed.

ORDER

49I order the following:

i. The applicant remains within the MIG.

ii. The two treatment plans in dispute are not payable.

iii. The applicant is not entitled to an NEB.

iv. The applicant is not entitled to interest.