21-003244/AABS

Licence Appeal Tribunal File Number: 21-003244/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:

Stephanie Gastman

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Daniela Algieri-Boileau, Counsel

For the Respondent: Ryland MacDonald, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Stephanie Gastman (the “applicant”) was involved in a motor vehicle accident on January 18, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Economical Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that injuries she suffered in the accident have resulted in chronic pain, psychological issues, and the exacerbation of a prior injury that warrants treatment outside of the Minor Injury Guideline (“MIG”) and its $3,500.00 limit. She also claims entitlement to five treatment plans and interest.

3Economical responds that the applicant suffers from predominantly minor injuries as defined in the Schedule and should be treated within the MIG. It holds that the benefits in dispute and interest are not payable because the applicant should remain in the MIG. Additionally, the insurer submits that the treatment plans have not been proven to be reasonable and necessary.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. 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 of the MIG?

2. Is the applicant entitled to $2,260.00 for a driver reintegration evaluation, recommended by Medex Assessments in a treatment plan/OCF-18 dated March 8, 2019?

3. Is the applicant entitled to $300.00 for physiotherapy services, recommended by Active Mobility Rehab in a treatment plan/OCF-18 dated June 25, 2019?

4. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Active Mobility Rehab in a treatment plan/OCF-18 dated June 20, 2019?

5. Is the applicant entitled to $2,055.81 for chiropractic services, recommended by Active Mobility Rehab in a treatment plan/OCF-18 dated June 4, 2019?

6. Is the applicant entitled to $112.26 ($506.13 less $393.87 approved) for chiropractic services, recommended by Active Mobility Rehab in a treatment plan/OCF-18 dated July 18, 2019?

7. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

5I find that:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury.

ii. The applicant is not entitled to the treatment plans in dispute, or interest.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6Section 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.”

7An insured person 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. The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.

8Here, the MIG limit has been exhausted. Economical notes in correspondence to the applicant dated August 29, 2019 that the insurer has approved treatment to the MIG limit of $3,500.00. This statement is not disputed by the applicant, so I accept it as factual. As the treatment plans in dispute fall outside of the MIG and its limit, the applicant’s entitlement to these benefits is contingent on a finding that her injuries are not included in the minor injury definition of the Schedule.

Does the applicant suffer from injuries that warrant removal from the MIG?

9I find that the applicant has failed to demonstrate that she suffered injuries as a result of the accident that are not predominantly minor. Therefore, she remains within the MIG.

10The applicant relies on the clinical notes and records (“CNRs”) of Dr. David Birbrager, family doctor, and two of the OCF-18s in dispute—the psychological assessment recommendation plan completed by Dr. Leo Steiner, psychologist, on June 20, 2020, and the chiropractic services recommendation plan filed by Dr. Michael Stea, chiropractor, on June 4, 2019—to establish that she suffers from chronic pain, psychological injuries, and the exacerbation of a pre-existing injury.

11In denying that the applicant has sustained injuries that necessitate treatment outside of the MIG, the respondent relies on three insurer examinations (“IEs”). Dr. Alisa Naiman, family physician, filed an IE report dated June 21, 2019 following a personal assessment of the applicant and a review of medical documentation and a number of the OCF-18s in dispute. Dr. Marc Mandel, psychologist, assessed the applicant in person regarding her psychological complaints and issued a report dated April 1, 2019. Michael Drinkwater, physiotherapist, completed an in-person functional abilities evaluation (“FAE”) and summarized his findings in a report dated July 10, 2019.

12I am not convinced by the applicant’s medical evidence with regard to her claims of chronic pain. Most notably, the applicant has never been diagnosed with chronic pain outside of a treatment plan recommendation. She does not seem to have sought out much medical treatment for her injuries. The applicant did not require medical attention at the scene of the accident, and she saw her family doctor just twice about the accident, on January 21, 2019 and February 8, 2019. Dr. Birbrager reported in his records from the first visit that the applicant was suffering from a sore and stiff neck, a sore upper back, myofascial pains, pain in shoulders and chest, and a reduced range of motion. Dr. Birbrager confirmed these diagnoses in the records from the second appointment, along with noting that the applicant’s neck and shoulder were more tight and tender. All his diagnoses involve soft-tissue injuries that fall under the minor injury definition in the Schedule. He recommended “massage and stretches” in the first appointment, and physiotherapy and unspecified medication in the second. No additional testing or diagnostic imaging were ordered. In addition, there is no mention in Dr. Birbrager’s CNRs of chronic pain or the possibility of the applicant’s symptoms developing into chronic pain. In all, these records do not establish that the applicant is suffering from chronic pain. In my view, they better substantiate that the applicant has sustained soft-tissue injuries that can be treated within the MIG.

13The applicant’s further evidence regarding chronic pain is based on OCF-18s that I find to be somewhat contradictory. The applicant relies on the treatment plan completed by Dr. Stea dated June 4, 2019, which proposes treatment outside of the MIG and diagnoses chronic pain, but Dr. Stea’s next treatment plan dated June 25, 2019 proposes treatment within the MIG. As both plans were authored by Dr. Stea and recommend similar courses of physical therapy, I am unclear why these offer different conclusions about the applicant’s injuries. No explanations are offered in the plans themselves, or in the applicant’s written submissions. Also, OCF-18s are insufficient in the absence of corroborating medical analysis, which has not been submitted here. For both of these reasons, I assign little weight to Dr. Stea’s recommendations and diagnoses.

14I am similarly unpersuaded by the applicant’s evidence regarding psychological injuries that would warrant removal from the MIG. She submits no medical evidence here aside from the OCF-18 in dispute for a psychological assessment dated June 20, 2020. In this treatment plan, Dr. Steiner concludes that the applicant suffers from anxiety, tension headaches, and depression, all of which are not minor injuries as defined in the Schedule. However, I assign these opinions little weight as, again, OCF-18s are insufficient without the support of medical evidence, and there is no such support adduced here. Dr. Birbrager, for example, does not record in his CNRs that the applicant made any complaints about psychological or emotional issues, or that he observed anything that would lead him to believe that a psychological assessment was warranted. In my view, this evidence does not demonstrate that the applicant has sustained a psychological disorder as a result of the accident that would necessitate treatment outside of the MIG, or even that sufficient reason exists to necessitate a psychological assessment.

15Additionally, I am not persuaded that the applicant’s treatment for her accident-related injuries has been affected by pre-existing anterior cruciate ligament (“ACL”) tears. This past injury is mentioned only briefly in submissions, which refer to the June 4, 2019 OCF-18 of Dr. Stea, where he writes—inconclusively, in my opinion—that the ACL tears “could” affect the applicant’s response to physical treatment. No medical evidence or analysis has been submitted documenting the existence of the ACL tears or supporting that the injury has been exacerbated by the accident and is causing difficulty with treatment. The only information about this injury seems to have been provided by the applicant. And while I have no reason to doubt her account of the ACL tears, which she told Dr. Naiman took place while playing hockey in 2011/2012, her self-reporting is not satisfactory evidence to demonstrate that the injury has been exacerbated by the accident, or that this warrants treatment outside of the MIG.

16I prefer the medical evidence of the respondent. Economical presents three IE reports that each conclude the applicant’s injuries are predominantly minor in nature and should be treated within the MIG. Dr. Naiman diagnoses the applicant with predominantly uncomplicated myofascial injuries, namely whiplash associated disorder II, thoracic strain/sprain, and lumbar sprain/strain. She also notes that the applicant told her that her symptoms had improved by roughly 60 per cent since the accident. In conclusion, Dr. Naiman writes that the applicant can reach full recovery from her injuries through treatment within the context of the MIG. Tests and observations conducted by Dr. Mandel resulted in the psychologist finding that the applicant did not suffer from any psychological impairment as a result of the accident. He further stated that no treatment, at least from a psychological perspective, would be required beyond the MIG. Lastly, Mr. Drinkwater wrote in his FAE report that the applicant demonstrated full functional ability in all tests, with medium strength, full range of motion, and normal mobility. Although Mr. Drinkwater does not directly comment on the MIG, I infer that he does not conclude that the applicant needs treatment outside of the MIG, as he does not note the need for any treatment whatsoever. All of the above reports are thorough and conclusive, so I see no reason to doubt them.

17For the above reasons, the applicant has failed to meet her onus and demonstrate that she sustained an injury that is not defined as minor by the Schedule. As a result, she remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

18As the applicant remains within the MIG and its $3,500.00 limit on treatment and the $3,500.00 has been exhausted, she is not entitled to the treatment plans in dispute, or interest.

ORDER

19I find that:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment, as she has not demonstrated that she suffers from injuries that are outside of the MIG definition of a minor injury.

ii. The applicant is not entitled to the treatment plans in dispute, or interest.

iii. The application is dismissed.