Citation: Leon v. TD Home and Auto Insurance Company, 2023 ONLAT 21-001727/AABS

Licence Appeal Tribunal File Number: 21-001727/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:

Kingsley Leon

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Marc Golding, Paralegal

For the Respondent: Francine Papadopoulos, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kingsley Leon, (“the Applicant”), was involved in an automobile accident on May 6, 2019, and sought benefits from TD Home and Auto Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”).

2The Respondent determined that the Applicant sustained a minor injury, subjected him to the Minor Injury Guideline, (“the MIG”), and denied him entitlement to non-earner benefits, (“NEBs”), and the treatment and assessment plans listed in dispute. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute for this hearing are as follows:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
2. Is the applicant entitled to NEBs in the amount of $185.00 per week for the period from January 7, 2020 to May 6, 2021?
3. Is the applicant entitled to a medical benefit in the amount of $2,581.08 for chiropractic services recommended in a treatment plan dated May 25, 2019?
4. Is the applicant entitled to a medical benefit in the amount of $1,254.25 for chiropractic services recommended in a treatment plan dated September 25, 2019?
5. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for psychological services recommended in a treatment plan dated August 23, 2019?
6. Is the applicant entitled to a cost of examination expense in the amount of $2,000.00 for a chronic pain assessment recommended in a treatment plan dated November 6, 2019?
7. Is the applicant entitled to a medical benefit in the amount of $1,043.40 for chiropractic services recommended in a treatment plan dated November 6, 2019?
8. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the subject accident. He is subject to the MIG and the $3,500.00 funding limit on treatment.

5The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services outside of the MIG.

6The Applicant is not entitled to NEBs or interest.

BACKGROUND

7The Applicant was the driver of a vehicle which collided sides with another vehicle that attempted to enter the lane the Applicant was driving in. He sought no medical attention at the time of the accident and drove to his destination after exchanging information with the other driver.

ANALYSIS

8The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule, or that he has a pre-existing health condition, documented by a medical practitioner prior to the accident, which would preclude him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

9The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the Applicant’s entitlement to the treatment and assessment plans in dispute is contingent on a finding that his injuries are not included in the minor injury definition. If successful, the Applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.

10The Applicant’s entitlement to NEBs is unrelated to the characterization of his injuries. Rather, he must demonstrate that he suffers a complete inability to carry on a normal life as a result of accident-related impairments.

MINOR INJURY GUIDELINE (“MIG”)

11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

12Pursuant to section 18(2) of the Schedule, the $3,500.00 funding limit for minor injuries does not apply if the Applicant can demonstrate that he had a documented pre-existing medical condition which would prevent him from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit.

13The Applicant claims that he suffers from pre-existing osteoarthritic changes in the left ankle and suspected degenerative changes in his right shoulder and that these injuries preclude his recovery if subject to the MIG and the funding limit. He further suggests that he suffers from chronic pain and psychological injuries. The Respondent contends that the Applicant has failed to meet his onus to demonstrate that he sustained anything more than a minor injury.

14I agree with the Respondent and find that the Applicant has not met his onus to demonstrate that he sustained an injury that is not a minor injury.

Pre-Existing Health Conditions

15There is no evidence that demonstrates that the Applicant’s pre-existing osteoarthritis and suspected degenerative changes would have any impact on his recovery from accident-related injuries. The Applicant presented no medical opinion to support his claim and the clinical notes and records, (“CNRs”), of his family physician, Dr. J. Lyons, fail to mention the subject accident in any way. Likewise, Dr. Lyon’s CNRs never mention the Applicant’s osteoarthritis or suspected degenerative changes beyond the imaging reports dated March 23, 2017 and October 7, 2018, respectively.

16The Respondent is not required to obtain a medical opinion on Dr. Lyon’s CNRs. The Applicant was critical of the Respondent for not having any medical assessors review Dr. Lyon’s CNRs. However, the Respondent is not required to do this and, upon review of the CNRs, it is evident that such a review is unnecessary considering there is not one mention of the subject accident or accident-related complaints in them. It would be unreasonable to force the Respondent to incur the cost of a medical review in light of the unremarkable medical records.

17The Applicant reported no pre-existing conditions to the insurer’s examination, (“IE”), assessors. While the Respondent never sent Dr. Lyon’s CNRs for a medical review, it nevertheless commissioned IEs by Dr. A. Oshidari, physician, and Dr. A. Marino, psychologist, dated October 16, 2019 and October 9, 2019, respectively. Both assessors asked the Applicant about any pre-existing health conditions. Dr. Oshidari noted that the Applicant reported a history involving a surgical treatment for a hernia and a right shoulder separation and that he suffers from diabetes. No exacerbation of pre-existing symptoms or complications with pre-existing conditions were reported. Likewise, Dr. Marino noted that the Applicant disclosed that his health was “good,” and that he has type two diabetes and high blood pressure and underwent hernia and shoulder surgery with no residual issues.

18Accordingly, I find that the evidence demonstrates that the Applicant’s pre-existing health condition had no impact on his recovery from accident-related injuries if subject to the MIG and the $3,500.00 funding limit on treatment.

Psychological Injuries

19Psychological injuries are not included in the minor injury definition. The onus is on the Applicant to demonstrate that he sustained a psychological injury as a result of the accident and that the injury is more than sequelae of his soft tissue injuries.

20The Applicant has not demonstrated that he suffers from a psychological injury. The Applicant referred to a disability certificate by Dr. D. Mannella, chiropractor, which states that he suffers from symptoms and signs involving an emotional state. However, there is no medical evidence to corroborate Dr. Mannella’s finding. Further, psychological injuries are outside of the scope of a chiropractor, rendering the opinion unpersuasive.

21Meanwhile, I agree with the opinion of Dr. Marino who assessed the Applicant on October 9, 2019 and again on December 4, 2019 and concluded both times that the Applicant suffered no psychological injury as a result of the accident. Dr. Marino conducted a clinical interview and psychometric testing for each assessment. Both times the Applicant scored in the minimal range for depression symptoms, anxious symptoms, and below-average somatization when compared to other pain patients. Dr. Marino concluded that the Applicant presented with no significant psychological impairment or diagnosis. I see no basis to interfere with Dr. Marino’s determination.

Chronic Pain

22Like psychological injuries, chronic pain conditions are not included in the minor injury definition. In order to establish that he has a chronic pain condition, the Applicant must demonstrate that his pain causes a functional impairment which adversely affects his well-being or that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

23I find no evidence demonstrating that the Applicant suffers from a chronic pain condition which is not included in the minor injury definition.

24The disability certificate by Dr. Mannella, dated September 25, 2019, and Dr. Oshidari’s IE report, are unpersuasive evidence of a chronic pain condition. The disability certificate notes chronic lumbar, wrist, knee, and ankle sprain/strains, but does not mention chronic pain or chronic pain syndrome. Nevertheless, this document fails to include any information on how the listed symptoms were assessed or diagnosed. Further, Dr. Mannella’s observations are not corroborated by any other medical practitioner - as noted previously, the subject accident is never referenced in Dr. Lyon’s CNRs. Indeed, Dr. Oshidari’s IE report dated October 16, 2019 notes observations that the Applicant exhibited lumbar range of motion, (“ROM”), as low as 30-50% of normal. However, Dr. Oshidari concluded that it was likely unrelated to the subject accident due to a delayed onset of symptoms and that the Applicant’s injuries nevertheless fit the definition of a minor injury. I agree with Dr. Oshidari’s conclusion.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS

25Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit on treatment.

NON-EARNER BENEFITS (NEBs)

26Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, he must demonstrate that his life circumstances have changed and that the change is significant enough to continuously prevent him from substantially engaging in all the activities that he engaged in before the accident.

27I find that the Applicant has failed to meet his burden to prove that he suffers a complete inability to carry on a normal life as a result of the accident. The Applicant provided no submissions specific to his entitlement to NEBs. Similarly, he directed me to no evidence to support his claim for NEBs. The evidence provided for this hearing fails to demonstrate that the Applicant suffers a complete inability to carry on a normal life.

28The documents provided demonstrate that the Applicant continues to carry on a normal life. The Applicant reported to Dr. Oshidari and Dr. Marino that he worked part-time prior to the accident and returned to work after the accident, albeit at reduced hours. Dr. Oshidari and Dr. Marino also noted that the Applicant remains independent with his personal care tasks and continues to engage in his household tasks. I am unable to find that the Applicant suffers a complete inability to carry on a normal life considering the evidence.

CONCLUSION

29The Applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.

30The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are not included in the MIG and above the funding limit for treatment.

31The Applicant is not entitled to NEBs, nor interest.