Citation: Buffan v. The Dominion of Canada General Insurance Company, 2023 ONLAT 21-003402/AABS

Licence Appeal Tribunal File Number: 21-003402/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:

Tanya Buffan

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Bianca Marinescu, Paralegal

For the Respondent:

Kylie Weber, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Tanya Buffan, the applicant, was involved in an automobile accident on November 27, 2018 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 benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The respondent raised the following preliminary issue:

i. Is the applicant statute-barred from proceeding with her claim with respect to the treatment plan dated February 4, 2019, because she failed to commence her application within two years after the respondent refused to pay the amounts claimed, pursuant to section 56 of the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues to be decided in the hearing 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 (“MIG”)?

ii. Is the applicant entitled to $1,242.56 for chiropractic and massage services recommended by Downsview Healthcare Inc. in a treatment plan (“OCF-18”) dated February 4, 2019?

iii. Is the applicant entitled to $1,268.80 for chiropractic and massage services recommended by Downsview Healthcare Inc. in an OCF-18 submitted on June 13, 2019?

iv. Is the applicant entitled to $2,000.00 for a psychological assessment recommended by Downsview Healthcare Inc. in an OCF-18 submitted on June 8, 2019?

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

RESULT

4I find that:

i. The applicant is not statute-barred from proceeding with the OCF-18 dated February 4, 2019;

ii. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG;

iii. As the full MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

iv. As no benefits are owing, no interest is payable.

ANALYSIS

The OCF-18 dated February 4, 2019 is not statute-barred pursuant to s. 56 of the Schedule

5Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay.

6The respondent submits that the OCF-18 dated February 4, 2019 for chiropractic and massage therapy, was denied by way of letter dated February 20, 2019. As such, the respondent argues that the applicant had until February 20, 2021 to dispute the denial. Since the application was filed on March 19, 2021, the respondent submits that the applicant missed the limitation period by a month and that she should be barred from proceeding with this OCF-18.

7The applicant contends that she submitted her application to the Tribunal via regular mail on January 12, 2021. Although the Tribunal did not have a record of the filing until March 19, 2021, the applicant argues that the respondent was clearly aware of the application because, on March 3, 2021, the respondent’s counsel advised that they had been retained by the respondent for the purposes of the Tribunal application. As such, the applicant argues that even if it is found that the application was filed outside of the time-limits, the limitation period should be extended pursuant to s. 7 of the Licence Appeal Tribunal Act, given her clear intention to appeal within the limitation period.

8I find that the applicant’s application was filed within the two-year limitation period. The treatment plan was denied by the respondent on February 20, 2019. In normal circumstances, the applicant would have had until February 20, 2021 to dispute the denial. However, the respondent has failed to take into account that the limitation period was extended due to the COVID-19 pandemic.

9On March 20, 2020, Ontario enacted O. Reg. 73/20 - Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. This regulation suspended limitation periods retroactively from March 16, 2020 and was repealed on September 14, 2020. This legislation was in force for 183 days. As such, a limitation period that began running before March 16, 2020 can be extended by 183 days. This was affirmed in McAuley v Canada Post Corporation, 2021 ONSC 4528, where the Ontario Superior Court of Justice found that O. Reg. 73/20 extended all running limitation periods by 183 days.

10The limitation period for this application started running before March 16, 2020 and can be extended by 183 days. Therefore, I find that the applicant was within the limitation period when she filed her application and is not barred from proceeding with this treatment plan.

Minor Injury Guideline

11Section 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. 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.”

12An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

13The applicant submits that she should be removed from the MIG on the basis of chronic pain and psychological impairment.

The applicant has not established chronic pain warranting removal from the MIG

14The applicant submits that she has developed chronic pain as a result of the accident. To establish her claim, the applicant relies on a Disability Certificate (“OCF-3”) prepared by Dr. Oleksander Pivtoran, chiropractor, which lists chronic pain in addition to a number of other impairments. The applicant also submits an entry from her family physician’s clinical notes and records (“CNRs”), indicating that she had been complaining of back and knee pain for “more than one year” after the accident. The applicant further relies on treatment records from Downsview Healthcare Inc., which indicate that she sought physiotherapy post-accident.

15I find that the applicant has not led sufficient evidence to demonstrate that she has developed chronic pain as a result of the accident. A review of the CNRs of the applicant’s family physician indicate that the applicant only raised accident-related pain with her doctor twice in the three years post-accident, despite attending numerous times for unrelated matters. The CNRs do not indicate that the applicant was prescribed any prescription pain medication after the accident, other than on one occasion a few days post-accident, for rib pain which has since resolved. Further, there is no evidence of any discussion or referrals for specialized chronic pain treatment.

16Further, the applicant has not provided evidence of a diagnosis of chronic pain. The applicant’s family physician did not diagnose the applicant with chronic pain but rather, with sprain and strain-type injuries which fall squarely within the definition of a minor injury. The only reference to chronic pain is found in an OCF-3 prepared by Dr. Pivtoran. However, while Dr. Pivtoran lists chronic pain as one of a number of impairments, he further elaborates and states that the “applicant’s condition has a clear tendency towards chronicity, therefore recovery within 12 weeks time period cannot be assured”. I agree with the respondent’s submissions that these comments in the OCF-3 are not sufficient evidence of a formal chronic pain diagnosis.

17Although chronic pain can still be established even without a formal diagnosis, there must be evidence of ongoing pain, accompanied by functional impairment or disability. The applicant has provided limited evidence of functional impairment. While the applicant self-reported to the respondent’s IE assessors that she could not return to work as a cleaner due to back pain post-accident, the applicant has not provided any objective evidence corroborating these claims. Further, upon testing, the respondent’s physiatry IE assessor Dr. Andrew Gwardjan found active range of motion in the cervical and lumbar spine, shoulders, hips and knees. The applicant reported pain only towards the end of range of motion of the lumbar spine. As such, Dr. Gwardjan diagnosed the applicant with minor, soft tissue injuries. The applicant has not provided sufficient medical evidence to refute Dr. Gwardjan’s findings of soft tissue injuries and limited functional impairment.

18As such, I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove her from the MIG.

The applicant has not demonstrated a psychological impairment warranting removal from the MIG

19The applicant submits that as a result of the accident, she has sustained serious psychological impairments. To establish her claim, she relies on a pre-screening interview conducted by Dr. Andrew Shaul, summarized in the OCF-18 dated June 8, 2019. In this pre-screening interview, the applicant reported sleep difficulties, feelings of pain, frustration, anxiety, depression, cognitive difficulties and nervousness in a car.

20In response, the respondent relies upon its psychological IE assessment, conducted by Dr. Rhonda Nemeth. Dr. Nemeth found that the applicant did not have any psychological symptoms meeting the criteria for a DSM-5 diagnosis. Dr. Nemeth further reported that the applicant denied having a need for psychological intervention.

21I agree with the respondent that the applicant has not provided sufficient evidence of a psychological impairment.

22When comparing the IE assessment of Dr. Nemeth, to the pre-screening interview of Dr. Shaul, I prefer Dr. Nemeth’s assessment. In coming to her conclusions, Dr. Nemeth conducted a clinical interview, psychometric testing and reviewed documentation, including CNRs of the family physician and hospital records. In contrast, Dr. Shaul appeared to have been solely relying on his interview with the applicant.

23Further, Dr. Nemeth’s conclusion that the applicant did not suffer from an accident-related psychological impairment, is consistent with lack of reports of psychological complaints in the medical record. Although the applicant attended at her family physician’s numerous times in the years post-accident, the CNR entries do not indicate that the applicant reported any psychological symptoms or requested mental health support.

24Given the lack of objective medical evidence of psychological symptoms, the applicant has not met her onus to establish that she sustained accident-related psychological impairments warranting removal from the MIG.

25The respondent has submitted correspondence confirming that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As 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.

Interest

26Section 51(1) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

27As no benefits are overdue, no interest is payable under s.51.

ORDER

28For the reasons set out above, I find that:

(i) The applicant’s injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans; and;

(iii) The applicant is not entitled to interest or an award.

29The application is dismissed.