Licence Appeal Tribunal File Number: 20-015118/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:
Giladies Aprim
Applicant
and
The Co-operators General Insurance Company
Respondent
AMENDED DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Maziar Mortezeai, Counsel
For the Respondent:
Eric Grossman, Patrick Baker Counsel
HEARD: By way of written submissions
OVERVIEW
1Giladies Aprim, ("the applicant") was involved in an automobile accident on January 7, 2019 and sought benefits from The Co-Operators General Insurance Company ("the respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule").
2The respondent denied the applicant's claims, as it had determined that all of the applicant's injuries fit the definition of "minor injury" as prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline (MIG). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
ISSUES IN DISPUTE
3The issues to be decided in the hearing are:
- 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 Minor Injury Guideline (MIG)?
- Is the applicant entitled to $810.00 for physiotherapy, proposed by Health-Pro Wellness, in a treatment plan/OCF-18 ("plan") denied on May 27, 2019?
- Is the applicant entitled to $3,601.90 for physiotherapy, proposed by Health-Pro Wellness, in a treatment plan/OCF-18 ("plan") denied on January 29, 2020?
- Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG. The applicant is not entitled to either treatment plan, an award or interest, and the application is dismissed.
ANALYSIS
Minor Injury Guideline
5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury." The terms, "strain," "sprain," "subluxation," and "whiplash associated disorder" are defined in the Schedule.
6Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
7Clinical notes and records were submitted from Dr. Yousra Abir, the applicant's family physician, covering the period from November 29, 2017 to July 1, 2021.
8From the date of the accident to the last recorded visit, the applicant saw Dr. Abir on 17 occasions. In these visits the accident was referenced only once, in a visit the day of January 8, 2019, one day following the accident. On this visit the applicant was sent for an x-ray.
9The applicant attended the x-ray on January 14, 2019 with Dr. Joseph Chin who noted that there is no fracture in either the cervical or lumbar spine, there is pain or muscle spasm in both the cervical and lumbar spine and mild degenerative disc disease at C5-6 in the cervical spine. I find that these injuries are predominantly minor in nature and there is no reference to the mild degenerative disc disease being accident related.
10From this report I cannot conclude that the applicant sustained physical injuries that would warrant the removal of the applicant from the MIG.
11With regards to psychological impairments, there is only one record in Dr. Abir's clinical notes and records that references anxiety or phobia. This occurred in a visit on May 15, 2019. However, the notes are framed as anxiety related to an upcoming trip to Iraq and specifically issues with flying. There is no mention of motor vehicles, driving or a motor vehicle accident in this notation. I am not satisfied that this episode was caused by the accident.
12The applicant also attended an Insurer's Examination ("IE") with Dr. Shafik Dharamshi, general practitioner, on March 11, 2020. Dr. Dharamshi notes "[the applicant] has been able to return to almost all her pre-accident activities of daily living, although she states that she drives with anxiety." This is the only reference to a psychological impairment that is linked to the motor vehicle accident. Given the lack of reported psychological issues to the applicant's family physician and the fact that this statement was made during a visit to prepare an assessment for the purposes of litigation, I give minimal weight to this statement.
13Overall, I find that the applicant does not suffer from a psychological impairment that would warrant removal from the MIG.
14The applicant further submitted that the Tribunal has repeatedly adopted the approach of assessing an applicant's claim of chronic pain against the six criteria described in the American Medical Association Guides (AMA Guides)1, which state that at least three of the following criteria must be met to establish chronic pain:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(ii) Excessive dependence on health care providers, spouse, or family;
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;
(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
15I include the applicant's position on the application of the AMA Guides criteria verbatim from the applicant's submissions:
The Applicant submits that she has experienced ongoing pain for more than six months and was hence excessively dependent on health care providers, which is evident by the ongoing treatments at HPW (II). In addition, she has suffered from social withdrawal (IV), failed to return to her pre-accident physical and psychological functioning (V), and continues to suffer from psychological impairments, including symptoms of anxiety and sleep problems (VI). Therefore, the Applicant's injuries and limitations satisfy the AMA's guidelines for Chronic Pain Injuries.
16As written submissions are not evidence, I cannot give any weight to these submissions in my decision. The applicant has simply stated that the criteria apply but has provided no evidentiary or documentary support for these statements. There is no evidence in the clinical notes and records that support the application of three of six AMA Guides criteria.
17For the reasons above I cannot find that the applicant has met her burden, on a balance of probabilities, to justify removal from the MIG.
Disputed Treatment Plans
18As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Award
19Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
20As I have found that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.
Interest
21As there are no benefits owing, no interest is payable.
ORDER
22For the reasons outlined above, I find that:
(i) The applicant sustained predominantly minor injuries as defined in the Schedule;
(ii) The applicant is not entitled to either OCF-18 for physiotherapy;
(iii) The applicant is not entitled to an award under Regulation 664; and
(iv) No interest is payable.
23This application is dismissed.
Released: March 13, 2023
__________________________
Julian DiBattista
Vice-Chair