Citation: Misri v. TD General Insurance Company, 2023 ONLAT 20-010518/AABS

Licence Appeal Tribunal File Number: 20-010518/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:

Neha Misri

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Taser Shah, Paralegal

For the Respondent:

Olga Elmanova, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Neha Misra (“N.M.”), was involved in an automobile accident on July 12, 2018, and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TD denied N.M.’s claims for benefits based on its determination that her accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). N.M. disagreed and submitted an application the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are in dispute:

a. Are N.M.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

b. Is the medical benefit in the amount of $1,350.00 for physiotherapy, recommended by Nabeel Syed in a treatment plan (OCF-18) dated July 14, 2018, denied on December 5, 2018, reasonable and necessary?

c. Is the medical benefit in the amount of $1,384.50 for chiropractic treatment, recommended by Hashim Khan in an OCF18 dated January 5, 2019, denied January 16, 2019, reasonable and necessary?

d. Is the medical benefit in the amount of $1,977.05 for chiropractic treatment, recommended by Hashim Khan in an OCF-18 dated December 3, 2018, reasonable and necessary?

e. Is N.M. entitled to interest on any overdue payment of benefits?

FINDING

3N.M. has not demonstrated that she sustained impairments that justify treatment beyond the MIG limits. The disputed OCF-18s are not reasonable and necessary and interest is not payable.

BACKGROUND

4N.M. was involved in a previous accident on January 30, 2018. The clinical notes and records (“CNRs”) of her family physician noted that she complained of lower back pain, pain in the left shoulder and chest.

5Following the subject accident, N.M. saw her family physician on July 14, 2018 complaining of pain on the left side of the upper back, shoulder and thigh. The medical documentation does not show that there was any exacerbation of the injuries sustained in the January 30, 2018 accident.

ANALYSIS

6Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.” An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG.

7N.M. bears the onus to establish entitlement to coverage beyond the $3500.00 limit for minor injuries on a balance of probabilities.

8N.M. submits that the impairments she sustained as a result of the accident warrant treatment beyond the MIG due to “the chronic pain in her neck and shoulder, combined with the psychological injuries.” Further, that these injuries are significant barriers to her ability to return to her daily activities.

9In support of her claims, N.M. relies on a July 26, 2018 Disability Certificate (OCF-3), which indicates injuries that are captured within the definition of ‘minor’. In addition, she relies on the CNRs of Dr. Batavia, family physician (noting neck and shoulder pain on various visits) and those of Mackenzie Medical Rehabilitation Centre (noting neck and shoulder pain).

10In response, TD argues that N.M’s. injuries are soft tissue in nature and are captured within the definition of minor injuries under the Schedule. TD relies on the reports of its s. 44 insurer examination (“IE”) assessors, who concluded the following: Dr. Boulias, physiatrist (September 28, 2018 – soft tissue injuries, nothing preventing maximum medical recovery); Dr. Rubenstein, psychologist (no psychological impairments as a result of the accident, MIG); Dr. Ismail, physiatrist (soft tissue injuries, MIG); and Robert Bullard, occupational therapist (no functional impairments).

11I agree with TD. On the evidence, I find the injuries listed in the OCF-3 fall squarely within the definition of minor injuries under the Schedule. Further, I agree that N.M.’s injuries are soft tissue in nature. Under Part 6 of the OCF-3, Disability Tests and Information, Dr. Pagnanelli, chiropractor, indicates that N.M. suffers a complete inability to carry on a normal life, however, indicates a disability duration of 9-12 weeks. I find this is not indicative of injuries that would require treatment beyond the MIG, as minor injuries usually resolve within this period of time.

12There is no evidence from the OCF-3, the CNRs or any diagnostic evidence that distinguishes these injuries from typical sprain and strain types of injuries. N.M. reported to Dr. Ismail that her accident-related symptoms had improved 65-70%, and that her injuries from the previous January 2018 accident had healed. Further, the family physician CNRs and those of Mackenzie Medical confirm the predominantly minor nature of N.M.’s injuries. There are no standout entries from the family physician records, and the sporadic presentations of accident-related pain complaints are not compelling. Diagnostic imaging confirmed normal findings.

13N.M. purports to suffer from psychological symptoms. N.M. did not submit any evidence in support of an accident-related psychological impairment. Referring to psychological symptoms in submissions in the absence of evidence is not sufficient. As such, an analysis of whether she suffered psychological impairments as a result of the accident, is not necessary. In the event an analysis is required, I find the CNRs and other medical documentation that she relies on, fail to point me to evidence of accident-related psychological impairment. She does not direct me to any presenting complaints of psychological symptomatology from her family physician CNRs, or those of Mackenzie Medical. In summary, I find the documentary evidence is largely silent on any psychologically based accident-related complaints.

14N.M. alleges she suffers from chronic pain as a result of the accident. However, there is little evidence to support she suffers from chronic pain syndrome as a result of the accident. First, there is no objective evidence to support she suffers from a chronic pain condition. There is no chronic pain syndrome diagnosis. While she may suffer from ongoing pain, this on its own is not indicative of chronic pain syndrome. By its very nature, chronic pain syndrome is distinctly different from ongoing pain, as it is considered pain that debilitates and severely limits one’s engagement in activities. The evidence shows that N.M. returned to work in a full-time capacity with regular duties. Further, there is no corroborating evidence that she has suffered any significant functional limitations as a result of chronic pain syndrome.

15On a balance of probabilities, I find that N.M. has suffered predominantly minor injuries that do not warrant removal from or treatment beyond the MIG. It is unclear from the submissions whether the MIG limit has been exhausted, therefore I leave it to the parties to make that determination. Should there remain a balance under the MIG limit, N.M. is free to apply that remaining balance to any treatment she seeks to address her accident-related injuries.

CONCLUSION

16N.M. has failed to demonstrate that she suffered impairments as a result of the accident that justify removal from the MIG. As N.M.’s injuries are predominantly minor, an analysis of the disputed OCF-18s is not required. As no benefits are overdue, no interest is payable.

17N.M.’s application is dismissed.