Licence Appeal Tribunal File Number: 21-000655/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:
Jennifer Williamson
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Deepak Bakshi, Counsel
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on February 17, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent, The Co-operators, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in this written hearing are:
I. Are the applicant’s automobile accident injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and minor injury guideline (“MIG”)?
II. Is the applicant entitled to $3,278.00 for chiropractic treatment, recommended by Dr. Alrick Daugherty, in an OCF-18 submitted on January 16, 2019?
III. Is the applicant entitled to interest on any overdue payment of benefits?
IV. Is the applicant entitled to costs?
RESULT
3I find that the applicant’s automobile accident injuries are predominantly minor as defined in s. 3 of the Schedule.
4The applicant is not entitled to the proposed treatment plan.
5As no outstanding benefits are owing, no interest is payable.
6The applicant’s request for costs is dismissed.
ANALYSIS
Minor Injury Guideline
7Section 18(1) of the Schedule limits the applicant to $3,500.00 in medical and rehabilitation benefits if she sustains an impairment that is predominantly a minor injury.
8“Minor injury” is defined in section 3(1) of the Schedule 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.”
9The applicant submits that her injuries fall outside of the MIG. She submits she has continuously reported pain in her right shoulder and arm since the accident and that this is documented in the clinical notes and records of the physicians she consulted. Her longstanding pain remains unresolved. The report of Dr. Dusko Surla, upon which the applicant relies, opines that this is enough to remove her from the MIG.
10I find that the applicant’s accident-related injuries are minor as defined in s. 3 of the Schedule. Additionally, while she has reported pain since the accident, the applicant has not established, on a balance of probabilities, that her pain and injuries were as a result of the accident.
11The applicant visited St. Joseph’s Healthcare the day after the accident where diagnostic images were taken of her shoulder and scapula. No injury is noted in this report. The applicant visited Dr. Sameh Michael, her family doctor, on May 11, 2015. She reported that her accident-related pain was being treated with physiotherapy. She advised Dr. Michael that she did not want to take medication for this pain.
12The applicant next visited her family doctor about a year later on April 26, 2016. She did not report pain in her right shoulder or arm. I find it reasonable to infer that if she had continued to have pain in these areas after the accident, it would have been reported on this visit or at some time during the 11 months between visits. I find the fact that she did not report it inconsistent with her position that her accident-related injuries were continuous.
13On September 13, 2016, the applicant reported right shoulder pain to Dr. Michael. She attributed it to lifting something heavy. Dr. Michael prescribed her Endocet for the pain and ordered an ultrasound. The results showed that the applicant had degenerative changes in her acromioclavicular joint. On May 25, 2017, the applicant reported to Dr. Michael that she hurt her right arm “a few months ago.” An ultrasound was ordered. The results show a “common extensor tendinosis with a partial thickness tear.” Dr. Michael referred the applicant to Dr. Jung Mah, an orthopedic surgeon. On July 24, 2017, the applicant told Dr. Mah that she had experienced elbow pain for seven months. The automobile accident was not mentioned during this time.
14Accordingly, I find the applicant’s right shoulder pain was a result of two post-accident injuries in 2016 and 2017, and degenerative changes, and not the February 2015 automobile accident. The applicant’s elbow pain started in 2017, almost two years after the accident. In my view, these medical records do not support a causal link between the accident and the ongoing pain complaints of the applicant.
15The applicant also relies on the March 23, 2016 report of Dr. Surla, a chiropractor. He opines that the duration of ongoing pain and functional limitations show that the applicant’s injury is not minor. He further opines that the amount of treatment she requires takes her out of the MIG.
16I assign little weight to this report for a number of reasons. To begin, Dr. Surla does not address causation. He believes that he is examining accident-related injuries, but he does not provide an explanation on why he believes the automobile accident caused the applicant’s pain. This undermines the weight to be given to this report. I also agree with points made by the respondent on Dr. Surla’s report. There is no diagnosis in his report. There are no references to medical reports or imaging. This further diminishes its evidentiary value.
17The applicant bears the burden of establishing, on a balance of probabilities, that her injuries were caused by the accident and are not minor. I find the medical evidence does not support such a finding. The applicant did not require prescription pain medication after the accident. Over a year later, on April 26, 2016, the applicant did not report accident-related pain during a family doctor visit. After her 2016 injury, she was prescribed an opioid to manage pain and the use of opioids also coincides with the discovery of degenerative changes in her shoulder. Her right shoulder and arm were further aggravated by a second injury in 2017. The applicant has not led sufficient evidence to persuade me that her pain complaints were caused by the 2015 accident.
18Consequently, I find that the applicant has not established that her accident-related injuries fall outside the MIG.
Issue II: Is the applicant entitled to $3,278.00 for chiropractic treatment?
19I have found that the applicant’s injuries are predominately minor. As such, she is subject to the MIG limit of $3,500.00.
20The applicant has exhausted her MIG limit of $3,500.00. Under these circumstances, an analysis into whether chiropractic treatment is reasonable and necessary is not required as she is not entitled to further treatment.
Issue III: Interest
21Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
Issue IV: Is the applicant entitled to costs?
22The applicant requests an order for the respondent to pay costs for acting unreasonably, frivolously, vexatiously or in bad faith.
23The applicant has not stated the amount of costs she is seeking. She has not provided submissions that argue for costs or cited any evidence for the Tribunal to consider.
24Under Rule 19.4 of the Tribunal’s Common Rules of Practice and Procedure, the Tribunal considers unreasonable, frivolous, vexatious, or bad faith conduct when determining whether costs should be awarded.
25The standard for awarding costs is high. The applicant was unsuccessful here and failed to provide submissions on costs. Consequently, I dismiss the applicant’s request for costs.
ORDER
26The applicant’s injuries are minor, and she is not entitled to the treatment plan.
27The applicant is not entitled to interest.
28The applicant’s request for costs is dismissed.
Released: February 21, 2023
Harry Adamidis
Adjudicator