Licence Appeal Tribunal File Number: 20-013852/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:
Barbara Gilarski
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Leo Demarce
APPEARANCES:
For the Applicant: Robert G Plate, Paralegal
For the Respondent: Natalie Gajewski, Counsel
HEARD: By way of Written Submission
OVERVIEW
1Barbara Gilarski, the applicant, was involved in an automobile accident on February 26, 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, Intact, and applied 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 Minor Injury Guideline (MIG) limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,681.69 for chiropractic and massage services, proposed by Kitchener Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) dated March 19, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not proven that their injuries fall outside of the MIG. The applicant’s request to be removed from the MIG is denied. The applicant’s request for the treatment plan for chiropractic and massage therapy as well as interest are denied.
4The application is dismissed.
ANALYSIS
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule
5I find that the applicant did not provide sufficient evidence to prove that her injuries remove her from the MIG because of the accident.
The Minor Injury Guideline
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 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.
8The applicant submits she should be removed from the MIG on three grounds:
i. A pre-existing condition relating to degenerative thoracic spondylosis;
ii. Chronic pain based on the AMA Guides; and
iii. Potential psychological impairments arising from the accident.
Pre-existing condition relating to degenerative thoracic spondylosis
9The applicant failed to meet the burden of proof to be removed from the MIG based on a pre-existing condition.
10Section 18(2) of the Schedule states that an injured person with minor injuries, who has a pre-existing medical condition, may be exempt from the MIG if they can provide compelling evidence that:
i. The person had a pre-existing condition that was documented by a medical practitioner before the accident;
ii. This same pre-existing condition prevents the injured person from achieving maximal recovery from their accident-caused injuries within the minor injury limits.
11The applicant refers to the report from Dr. Wong dated November 15, 2021 who summarizes, with the support of the MRI dated May 13, 2018, that the applicant has pre-existing degenerative changes of the cervical spine, which can make her more vulnerable for damage and more difficult to heal from her injuries from the car accident. The applicant argues that this proves evidence of a pre-existing soft tissue injury to her neck, making the applicant susceptible to further and more significant injury post-accident.
12The applicant also relies on an online medical source www.healthline.com to tie the cause of degenerative thoracic spondylosis to the accident, as a possible cause amongst other possible causes.
13The respondent details the following regarding the applicant’s pre-accident medical history:
i. The family doctor’s pre-accident notes are one page long, the last visit being 19 months prior to the accident. The last visit did mention lower back pain due to sitting a lot, but there was no treatment or follow-up.
ii. That the following documents submitted indicate that there were no pre-existing conditions:
a. OCF-3 submitted by Dr. Dinh on March 14, 2018.
b. OCF-18 submitted by Dr. Dinh on March 19, 2019.
iii. The applicant had reported to Dr. Khaled in her insurer examination dated May 13, 2019, that she had no prior fractures when discussing her past medical history and that she functioned normally prior to the accident.
14I am persuaded by the respondent’s argument that the applicant did not meet the evidentiary requirement as it relates to section 18(2) of the Schedule. The applicant relies on physiatrist Dr. Wong’s diagnosis and opinion, however, the applicant has not produced evidence that the condition of degenerative thoracic spondylosis pre-existed the accident, as there is only one clinical note from 19 months pre-accident that did not involve treatment or follow up. Furthermore, the respondent correctly points out that the reference to the online source, which relates degenerative thoracic spondylosis as potentially being caused by a motor vehicle accident, presented as evidence by the applicant, is not in fact a medical opinion from a medical practitioner, but bald assertions.
15I find that the applicant has not met the burden of proof to be removed from the MIG based on pre-existing conditions.
Chronic Pain
16The applicant failed to meet the burden of proof that she suffers from chronic pain with functional impairment as a result of the accident.
17Chronic pain by itself is not included in the definition of a minor injury in the Schedule. Chronic pain also does not fit into the 12-week functional restoration model of the MIG. The applicant seeks to qualify as having chronic pain by suffering from at least three of the six criteria as set out in the American Medical Association’s Guides (AMA) that the Tribunal has adopted as an interpretive tool for chronic pain claims in the absence of a diagnosis.
18The following are the criteria that the applicant identified as supporting her claim that her chronic pain warrants removal from the MIG:
i. Drug Dependence: Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
a. Applicant’s position: Dr. Wong reports that the applicant is currently consuming Tylenol and Tylenol 3 for control of pain.
b. Respondent’s position: Uses Tylenol 3 for pain “but not often”, and the report from insurer examiner Dr. Khaled dated June 24, 2019, states that the applicant uses “occasional” use of over-the-counter medication and chiropractic treatment as helping to alleviate the symptoms.
c. I find that the applicant is not dependent on prescription drugs or other substances because there is not a history of over-prescribing, the prescription drug use is occasional, and there is no evidence of any request for alternative prescription strength pain medications.
ii. Dependence on others: Excessive dependence on health care providers, spouse or family.
a. Applicant’s position: Dr. Wong reports that the applicant is not able to perform the household tasks that require frequent bending or heavy lifting and is reliant on her husband to perform the majority of the household duties.
b. Respondent’s position: The last visit to her family doctor for accident-related reasons was in April of 2019, and there have been no treatments since July of 2018.
c. I find that the applicant has not proven to have a dependence on others. While the applicant may claim to be reliant on her husband, there is no evidence provided other than her statement to that fact. The respondent points out that there is no undue reliance on her family doctor, nor has there been a reliance on any other medical practitioners since July of 2018.
iii. Social withdrawal: Withdrawal from social milieu, including work, recreation, or other social contacts.
a. Applicant’s position: Dr. Wong reports that the applicant described that she enjoyed jogging, long walks and boating which have all been stopped.
b. Respondent’s position: The applicant returned to pre-accident part-time work immediately following the accident until she was let go.
c. I am not persuaded that the applicant has suffered from a withdrawal from social milieu, including work, recreation or other social contacts. The applicant returned to work immediately after the accident. I find that the applicant has not provided sufficient evidence to support this issue.
iv. Restore pre-injury function: 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.
a. Applicant’s position: Dr. Wong reports that the applicant sold her boat in 2019 and avoids travelling as she cannot sit for prolonged periods of time.
b. Respondent’s position: The applicant can perform light duties, gets aches and pains when bending, and in a report from insurer examiner Dr. Khaled dated June 24, 2019, was reassured that it is safe to resume all aspects of life that she engaged in prior to the accident without restrictions.
c. I am persuaded that Dr. Wong can provide evidence that the applicant is unable to fully restore her pre-injury function.
He relies on the MRI report of the cervical spine and thoracic spine which revealed degenerative changes with diffuse disc osteophyte bulging and narrowing of the cervical spine as well as neural foraminal stenosis.
It also revealed a small left side paracentral disc osteophyte protrusion stretching the left side exiting nerve root at the C6/C7 level.
Dr. Wong then states that, in his medical opinion, that the applicant has pre-existing degenerative changes of the cervical spine, which can make the applicant more vulnerable for damage and more difficult to heal.
19The applicant has failed to demonstrate that they suffer from chronic pain. I accept that the applicant meets 1 criterion for chronic pain, that of unable to restore pre-injury function. However, to be removed from the MIG the applicant must demonstrate that they have at least 3 out of the 6 criteria as set out by the AMA.
Potential psychological impairments arising from the accident
20The applicant relies on Dr. Wong’s medical opinion that the applicant’s accident-related injury is not a simple soft tissue injury, but this pain has been ongoing and is complicated with insomnia and stress problems, which are frequently seen in patients that suffer from chronic pain.
21Dr. Wong further notes that the applicant complained of post-traumatic headache, post-traumatic insomnia, and psychological problems.
22Dr. Wong also concludes that the applicant be followed by a psychologist regarding the applicant’s stress concerns.
23I am not persuaded that the applicant has provided sufficient evidence to indicate that she has been diagnosed with a psychological impairment arising from the accident. Dr. Wong identifies that the applicant has concerns about stress, and that she is suffering from insomnia, headaches and complains of psychological problems, but this is not a diagnosis of a psychological impairment that arose from the accident.
The applicant has not provided sufficient evidence to be removed from the MIG
24I am not persuaded by the applicant’s evidence that she suffers from chronic pain as per the AMA Guides. The applicant is required to prove that she is suffering from at least three criteria set out by the AMA Guides and I find that the applicant is unable to meet that burden of proof. Similarly, she has not demonstrated that she has a psychological impairment or that she has a pre-existing condition warranting removal from the MIG under s. 18(2). As a result, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
The applicant is not entitled to $2,681.69 for chiropractic and massage services
25The applicant has not met the burden of proof required to be removed from the MIG. The MIG limits have been exhausted and therefore the treatment plan for $2,681.69 for chiropractic and massage is not approved as it falls outside of the MIG.
Interest is not applicable
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No interest applies as there are no benefits payable.
ORDER
27I find that the applicant is not entitled to any of the following benefits:
i. I find that the applicant’s injuries are predominantly minor, and that the applicant failed to provide sufficient evidence to persuade the Tribunal that she should be removed from the MIG.
ii. As the MIG limits have been exhausted, the applicant is not entitled to $2,681.69 for chiropractic and massage services, proposed by Kitchener Rehabilitation Clinic in a treatment plan/OCF-18 (“plan”) dated March 19, 2019.
iii. As there are no benefits payable, the applicant is not entitled to interest on any overdue payment of benefits.
Released: May 2, 2023
Leo Demarce
Adjudicator