Citation and Parties

Citation: Oiboh v. Royal Sun Alliance, 2023 ONLAT 20-015062/AABS Licence Appeal Tribunal File Number: 20-015062/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:

Daisy Oiboh

Applicant

and

Royal Sun Alliance

Respondent

Decision

ADJUDICATOR: Janet Hueglin Hartwick

APPEARANCES:

For the Applicant: Ramdeep Minhas, Counsel

For the Respondent: George Poirier, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Daisy Oiboh, the applicant, was involved in an automobile accident on November 25, 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 certain benefits by the respondent and submitted an application 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 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to $565.43 ($2,097.65 less $1,532.22 approved) for rehabilitation services, proposed by Toronto Healthcare Clinic Inc. in a treatment plan/OCF-18 (“plan”) dated October 10, 2019?

iii. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Toronto Healthcare Clinic Inc. in a plan dated October 11, 2019?

iv. Is the applicant entitled to $13,047.36 for psychological and physical therapy assessment and treatment, proposed by Toronto Healthcare Clinic Inc. in a plan dated February 10, 2020?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the applicant has not demonstrated that removal from the MIG is warranted. The applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG limit.

4Given the MIG funding limit has been exhausted, the OCF-18s in dispute are not payable.

5The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant has not demonstrated removal from the MIG is warranted

6I am not persuaded the applicant has established, on a balance of probabilities, that she has suffered a pre-existing condition which would otherwise preclude her recovery under the MIG. Nor has she proven that she suffers from chronic pain that warrants her removal from the MIG.

7Section 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 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 may be removed from the MIG if they can establish their accident-related injuries fall outside of the MIG. The Tribunal has also determined chronic pain with functional impairment, or a psychological impairment may warrant removal from the MIG.

8Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the cap on benefits. However, the applicant must provide compelling evidence that meets the following requirements:

a. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

b. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

9In all cases, the burden of proof lies with the applicant.

10The applicant submits she should be removed from the MIG on three grounds:

a. her pre-existing diagnosis of psoriatic rheumatoid arthritis in her ankles;

b. her pre-existing diagnosis of major depression and generalized anxiety disorder; and

c. her current chronic pain as a result of the accident.

The applicant is not removed from the MIG due to her pre-existing conditions

11To support her claim, the applicant relies on her OCF-3 Disability Certificate, the Chronic Pain Assessment Report of Dr. Howard Jacob, clinical notes and records of her family physician Dr. Kapur, rheumatologist Dr. Leung, psychiatrist Dr. Kakar and treatment records from Greystone Medical Centre and Toronto Healthcare Clinic.

12In response, the respondent submits the applicant’s clinical notes fail to demonstrate a decline in her pre-existing conditions post-accident, as proven by the unused balance of $1,760.00 of treatment that it approved under the MIG. Furthermore, the respondent asserts there are minimal pain complaints connected to the accident and the applicant did not report being in a motor vehicle accident to various medical professionals. It relies on various s. 44 insurer’s examinations (“IEs”) to support its position.

13I agree with the respondent. First diagnosed with psoriatic rheumatoid arthritis, by rheumatologist Dr. Leung on October 29, 2014, the applicant asserts the frequency and intensity of her pre-existing arthritic symptoms have increased in bilateral ankle pain, swelling and joint pain. I find the applicant has not proven her recovery has been prevented by the MIG.

14First, while the applicant reported getting medical attention to the IE assessors Dr. Baskind, Dr. Alice Sau Han Kam and chronic pain assessor Dr. Jacobs, there is no there’s no evidence from the applicant to support her assertion that she received medical attention.

15Second, I find it significant that the applicant attended a neurological consult with Dr. Petrescu, on November 27, 2017, two days after the accident and did not mention the collision. In fact, the doctor described her as “in no distress [and] cooperates with the exam”. Third, I find it noteworthy the applicant did not see her family physician Dr. Kapur until four months post accident on March 22, 2018 and the accident was not mentioned in the doctor’s record. Likewise, a September 9, 2020 clinical note of physician Dr. Raghuraman reports the applicant had “not followed-up with her rheumatologist in over a year”.

16I recognize the concurrent clinical notes and records indicate the applicant was treated for painful ankle swelling. To this end, the applicant submits her pre-existing issues were not managed prior to the accident, therefore, they now interfere with her ability to recover under the MIG limits. However, in my view, the applicant has failed to prove her arthritis symptoms increased as a result of the accident. In fact, I find the applicant’s pattern of under reporting the accident to medical professionals inconsistent with her submissions and not compelling evidence that she is unable to achieve maximum medical recovery under the MIG.

17As for her claim that that she has a pre-existing psychological condition that prevents her maximal medical recovery, the evidence provided also does not support the applicant’s assertion. Diagnosed with major depression and generalized anxiety disorder by psychiatrist Dr. Kakar on July 27, 2015, the applicant has not offered evidence to demonstrate she received treatment for these psychological impairments pre- or post-accident. In fact, the applicant did not request a new referral until May 20, 2020, some three years post-accident, which calls into question the merit of the applicant’s submissions.

18I assign less weight to the applicant’s self-reported symptoms of socializing less, not returning to work at Uber and Hudson’s Bay, and her limitations with activities of daily living. I am persuaded by the finding of insurer’s psychological examination assessor Dr. Sharleen McDowall that, “it has been two years since the accident and any accident-related psychological symptoms should have been resolved and her current psychological impairments are related to her pre-existing diagnosis”. In my view, the applicant has not provided evidence to validate that her self-reported symptoms are a result of the accident, which is her burden. Accordingly, I find the applicant’s pre-existing psychological impairments are insufficient to remove the applicant from the MIG. The applicant has failed to provide compelling evidence that establishes her maximal recovery has been prevented because she is subject to the $3,500 cap on treatment costs under the MIG.

The applicant is not removed from the MIG due to chronic pain

19In my view, the applicant’s complaints of chronic pain are neither consistent nor well documented.

20A diagnosis of chronic pain or chronic pain syndrome is not strictly required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the applicant must demonstrate, on a balance of probabilities, that she suffers from accident-related pain that causes functional impairment. In this matter, I have been provided little compelling evidence to indicate the applicant’s accident-related injuries have resulted in chronic pain.

21I find the applicant’s lack of concurrent clinical notes and records inconsistent with her OCF-3 and chronic pain report. The applicant asserts she experiences daily headaches, neck, bilateral shoulder and spine pain when sitting or doing physical activity. Yet, as I stated above, the applicant did not report the accident or complain of symptoms in relation to the collision. On February 6, 2019, the applicant complained of back pain to rheumatologist Dr. Leung but did not mention the accident. This contrasts with May 30, 2016 when the applicant reported neck and back pain to Dr. Leung in reference to a motor vehicle accident that occurred on May 9, 2016. I find the applicant’s few sporadic reports of back pain were never reported to be in connection to the subject accident.

22I have not received compelling evidence to validate the applicant has an accident related functional impairment. I am persuaded by the report of physiatry IE assessor Dr. Alice Sau Han Kam, dated January 29, 2020, that found the applicant had no objective evidence of functional limitations and/or physical restrictions, related to the subject accident. In my view, the IE assessor reviewed the clinical notes and records of various treating experts and had a through understanding of the applicant’s medical history.

23I assign limited weight to the chronic pain assessment of Dr. Jacobs, dated January 22, 2020 for three reasons. First, I find it concerning Dr. Jacobs reviewed the OCF-18s but not the pre- or post-accident clinical notes and records of the applicant’s healthcare providers. Second, I am unaware of how Dr. Jacob’s arrived at his findings as his report does not explain the functionality criteria that were used to assess the applicant. Third, I find Dr. Jacobs relies heavily on the applicant’s self-reporting despite the existence of numerous clinical notes and records of various medical professionals. In my view, the medical evidence I have received does not indicate the applicant has functional limitations related to the subject accident. Therefore, I decline to remove her from the MIG on this basis.

OCF-18s in dispute will not be analyzed as MIG benefits are exhausted

24Given the $3,500.00 funding limit was previously exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

25Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

26I find the applicant has not demonstrated removal from the MIG is warranted. The applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG limit.

27Given the MIG funding limit has been exhausted, the OCF-18s in dispute are not payable.

28The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

29The application is dismissed.