Harris v. Intact Insurance Company, 2023 CanLII 26963

Citation: Harris v. Intact Insurance Company, 2023 ONLAT 21-004113/AABS

Licence Appeal Tribunal File Number: 21-004113/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:

Shanice Harris

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Nishant Nayak

APPEARANCES:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: Khelan Soogrim, Counsel

HEARD: By way of written submissions

OVERVIEW

1Shanice Harris (“Applicant”) was involved in an automobile accident on March 5, 2019, and sought benefits from Intact Insurance Company (“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 because it determined that all of the applicant’s injuries fit the definition of a “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, are subject to 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

3The issues in dispute for this hearing are:

1. Are the Applicant’s injuries predominantly a minor injury as defined in s. 3(1) of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit?

2. Is the Applicant entitled to $1,299.98 for physiotherapy services recommended by Alexmuir Wellness Centre in a treatment plan dated August 7, 2019?

3. Is the Applicant entitled to receive $3,923.00 for physical rehabilitation services recommended by Alexmuir Wellness Centre in a treatment plan dated April 26, 2019?

4. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find that the applicant has not met her onus of proving that her accident-related impairments are non-minor or otherwise warrant removal from the MIG. Because the Applicant is in the MIG she is not entitled to any of the treatment plans in dispute or interest.

ANALYSIS

The MIG

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. It is the Applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

7The Applicant submits that she suffers from strain and sprain injuries to her shoulder, spine, back and neck, and psychological issues like sleep disturbances, driving anxiety which preclude her recovery if subject to the MIG. The Applicant also claims that, as a result of the accident, she has developed significant chronic back and neck pain and psychological impairments that warrant treatment out the MIG to achieve maximal recovery.

8She relies on the Clinical Notes and Records (CNRs) of her family physician, Dr. Oliver, the CNRs of pain specialist Dr. Nguyen, and an OCF-3 completed by physiotherapist Ginni Bajaj from Alexmuir Wellness Centre Inc. in support of her position.

9The Respondent disagrees and submits that the Applicant has not produced any compelling evidence to show that she sustained any injuries that would warrant her removal from the MIG. The Respondent further submits that the clinical notes and records of the Applicant’s treatment providers refer only to soft tissues injuries related to the accident and that such injuries are covered by the MIG

10The Respondent submits that while the Applicant continues to have back, neck, and shoulder pain as a result of the accident, the Applicant has not established that she has functional limitations as a result of the accident to justify removal from the MIG based on chronic pain or that she sustained a psychological impairment as a result of the accident that would require treatment beyond the MIG.

11I agree with the Respondent, find all the physical injuries of the Applicant are minor injuries as defined in section 3 of the Schedule and do not warrant removal from the MIG. I further agree with the Respondent that the evidence provided by the Applicant has not demonstrated any significant accident-related change to the Applicant’s reported functionality. I am unable to find, on a balance of probabilities, that the Applicant should be removed from the MIG because she has chronic pain and psychological impairments.

12The Applicant’s first visit to family physician Dr. Oliver was on March 13, 2019, after the accident on March 5, 2019. The Applicant’s last visit to Dr. Oliver was on November 2, 2021. The CNRs of Dr. Oliver do not describe accident-related physical injuries that are more than a minor injury as defined in the Schedule.

13Dr. Oliver’s notes are consistent with the CNRs of Alexmuir Wellness Centre Inc. beginning on April 5, 2019, and OCF-18s submitted on April 5, 2019, and August 7, 2019, reveal that the Applicant sustained soft tissue injuries as a result of the subject accident.

14As for the chronic pain claims, I note that the Applicant has not provided the CNRs of Dr. Oliver beyond November 2, 2021, which leaves me unable to conclude whether her pain persisted beyond this date. Further, Dr. Oliver’s CNRs from the Applicant’s eight intermittent visits during this time-period and submitted as evidence neither mention a diagnosis of chronic pain syndrome nor indicate that the Applicant sustained an objective functional impairment as a result of the accident.

15Due to the Applicant’s subjective complaints, Dr. Oliver referred the Applicant to pain specialist Dr. Nguyen, whom the Applicant visited twice. Dr. Nguyen’s second letter to Dr. Oliver, dated September 9, 2019, noted that despite the ongoing pain complaints, the Applicant is managing, and more serious intervention of pain management would not be necessary at this time. The Applicant never visited Dr. Nguyen again. Not only that, but the Applicant also did not visit Dr. Oliver again until January 13, 2021, nearly two years following the accident.

16The Applicant’s subjective complaints to both doctors prompted numerous X-rays and MRIs between May 21, 2019, and September 6, 2019; however, none of the extensive imaging performed revealed any acute abnormality or evidence of objective accident-related injury that would support a future chronic pain diagnosis.

17This is supported by the section 44 insurer examination report conducted by Dr. Tepperman, occupational pain physician, on July 4, 2019, who noted there is no objective evidence of musculoskeletal or neurological impairment. Dr. Tepperman’s report further noted that the Applicant suffered uncomplicated soft tissue injures which can be treated under the MIG.

18The Applicant further indicated to the assessor that she was self-sufficient with her personal care. With respect to caring for her child, she was able to do everything except lifting. With respect to housekeeping she continues do her own cooking, cleaning, laundry, and shopping. She also has continued to drive.

19The Applicant successfully returned to work at Marshalls full time voluntarily on March 7, 2019, after missing two days of work initially. She has since started a new job processing files at Service Canada remotely. Based on these facts, I cannot conclude that the applicant suffers from chronic pain with functional impairment that would justify removal from the MIG.

20The Applicant also claims she has developed psychological impairments like sleep disorder and car anxiety that justify removal from the MIG. The Applicant relies on an OCF-3 completed by physiotherapist Ginni Bajaj on April 5, 2019, which lists sleep disorder, unspecified. I put no weight on this notation as psychological diagnoses are beyond a physiotherapist’s area of expertise.

21The Applicant further relies on her self-reporting to Dr. Oliver dated March 13, 2019, which mentions she has been avoiding socializing due to driver anxiety. However, On July 17, 2019, the Applicant noted to Dr. Oliver that she experienced improvements in her driving anxiety, and she was starting to drive herself more often. The subsequent CNRs from Dr. Oliver do not mention any psychological impairment. Upon reviewing the Dr. Oliver’s clinical notes and records and the rest of the medical evidence, I find no basis to support the applicant’s position that she suffered a psychological impairment as a result of the accident that warrants removal from the MIG.

22The applicant didn’t provide any evidence to substantiate the amount of benefits paid to date. In any event, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.

Interest

23The applicant is not entitled to interest in accordance with s. 51 of the Schedule as there are no overdue benefits.

ORDER

24For the reasons outlined above, I find:

a. The Applicant has not met her onus of proving that her accident-related impairments are not predominantly a minor injury or otherwise warrant removal from the MIG;

b. The Applicant is not entitled to the treatment and assessment plans in dispute because she is in the MIG; and

c. No interest is payable because no payments went overdue.