Citation: Essue v. Intact Insurance, 2023 ONLAT 21-009147/AABS

Licence Appeal Tribunal File Number: 21-009147/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:

Donna Essue

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Gerald Sternberg, Counsel

For the Respondent: Matthew GT Glass, Counsel

HEARD: By written submissions

OVERVIEW

1Donna Essue, the applicant, was involved in an automobile accident on April 4, 2017, 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, Intact 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 limit?

ii. Is the applicant entitled to $1,400.00 for a VOX Neuro Cognitive Assessment proposed by Dr. Karatanevski in a treatment plan/OCF-18 (“plan”) dated February 18, 2021?

iii. 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 the treatment plan, nor interest.

ANALYSIS

Minor Injury Guideline (MIG)

5The applicant’s injuries are predominantly minor and treatable within the MIG.

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 does not make any submissions in regard to her accident-related injuries falling outside of the MIG. However, she describes suffering from psychological injuries. She also notes that her family physician and emergency records show that she suffered a head injury that caused cognitive decline. I note that both injuries, a psychological injury and a concussion, are types of injuries that warrant removal from the MIG.

9According to the respondent, the notes of Dr. Wilson Idami, her family doctor, show that her psychological complaints concern stress that is related to the passing of her mother and her workplace, not the accident. Moreover, according to the respondent, the applicant has not provided sufficient evidence to establish that she sustained a concussion from the accident. The respondent submits that the applicant’s injuries are predominantly minor and fall under the MIG.

10The clinical notes and records of Dr. Idami is the only evidence referenced by the applicant on her psychological condition. An undated clinical note states that she came to see Dr. Idami for an assessment regarding stress at work and family stress. In particular, the note states that it has been stressful since the applicant’s mother passed away. The accident is not mentioned.

11The clinical note from July 11, 2018 states that the applicant’s mother passed away and that the applicant is “depressed but doing okay.” The accident is not mentioned.

12The clinical note from July 6, 2017 states that she has occupational stress. Her mood is depressed and anxious. Once again the accident is not mentioned and there are no further clinical notes in the evidence before me that mention psychological symptoms.

13There is no nexus in the evidence between the psychological complaints and the accident. The applicant’s symptoms are attributed to the death of her mother and her work situation. Consequently, I find that there is no evidence that supports the assertion that the applicant sustained a psychological injury from the accident.

14The evidence of a concussion is limited to the clinical notes of Dr. Idami and the disability certificate.

15The clinical note dated April 13, 2017 states that the applicant was seen at the emergency room. A CT scan of her head was taken and she was told that she has a concussion.

16This account in the clinical note is contradicted by the Emergency Record from the Mackenzie Richmond Hill Hospital dated April 6, 2017. A slashed zero (i.e. Ø) followed by “concussion” on the Emergency Record indicates that the applicant does not have a concussion. There is no other emergency room record in the evidence before me that might support Dr. Idami’s note of April 13, 2017.

17The disability certificate was completed by Alison McFadden, physiotherapist. She lists a concussion as being one of the applicant’s injuries. The applicant also indicates that she has suffered a concussion on the same form. In my view, little weight can be given to this form. Neither the applicant, nor a physiotherapist is qualified to diagnose the neurological condition of a concussion.

18I give more weight to the Emergency Record from the hospital. It shows that the medical team at the hospital determined that the applicant does not have a concussion. Consequently, I find that the applicant has not shown, on a balance of probabilities, that she suffered a concussion as a result of the accident.

19Having found that the accident did not cause a psychological injury or a concussion, I further find that the applicant’s injuries are minor and treatable within MIG limits.

20As I have found the applicant’s injuries fall within the MIG, it is unnecessary to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.

21Interest is not payable pursuant to s. 51 of the Schedule as no overdue amounts are owing.

ORDER

22The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

23The applicant is not entitled to the treatment plan, nor interest.