Licence Appeal Tribunal File Number: 20-009050/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:
Paulette Sewell
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION
ADJUDICATOR:
Andrea Reid
APPEARANCES:
For the Applicant:
Navneet Jaswal, Counsel
For the Respondent:
Eric Grossman, Counsel
HEARD: In Writing
OVERVIEW
1Paulette Sewell, the applicant, was involved in an automobile accident on September 18, 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 benefits by the respondent, Cooperators Insurance, 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 limit and in the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to $2,460.00 for psychological services, in a treatment plan (OCF-18) submitted by Dr. Jon Mills of Complete Rehab Centre, on July 15, 2018, denied on October 15, 2019?
iii. Is the applicant entitled to $2,108.11 for physical treatment, in a treatment plan (OCF-18) submitted by Dr. Rahim Jessa of Complete Rehab Centre on February 27, 2020, denied on March 11, 2020?
iv. Is the applicant entitled to $1,882.49 for physical treatment, in a treatment plan (OCF-18) submitted by Dr. Rahim Jessa of Complete Rehab Centre on June 7, 2021, denied on June 14, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that removal from the MIG is warranted. The OCF-18s for psychological and physical treatment plans are not reasonable and necessary. As no benefits are overdue the applicant is not entitled to interest
ANALYSIS
The applicant has not demonstrated removal from the MIG is warranted
4The applicant bears the onus to establish her accident-related impairments require coverage beyond the $3,500.00 limit for minor injuries on a balance of probabilities.
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one of more of a spring, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinical associated sequelae to such an injury.”
6Any insured person may be removed from the MIG if they can establish 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.
7The applicant submits that she should be removed from the MIG on two grounds:
i. Her current chronic pain as a result of the accident, and;
ii. Her psychological impairments.
8To this end, the applicant relies on medical records from her family physician, Dr. Caturay, and physical treatment provider, Dr. Jessa, to justify removal from the MIG. The applicant submits that these documents identify ongoing pain and reduced function, primarily back pain that prevents her from sleeping well, completing household chores and heavy-lifting activities. Additionally, the applicant submits the medical evidence demonstrates an accident-related psychological condition.
9In response, Cooperators points to William Osler Hospital Records, which state the applicant’s impairments fall within the definition of minor injury. Further, it submits that the applicant’s psychological impairments are attributable to several social stressors and cannot be tied directly to the subject accident or separated from a previous accident. The respondent also submits that the applicant has not established the presence of chronic pain syndrome nor grounds for the treatment plans she is seeking. The respondent relies on medical records from the applicant’s family physician and the psychological IE report of Dr. Cheryl Miller from October 11, 2019.
10I agree with Cooperators that the applicant’s physical impairments fall within the definition of a minor injury under s. 3, as they are identified as soft tissue injuries in both the hospital and medical records from her family physician.
11The Tribunal has determined that chronic pain with functional impairment warrants removal from the MIG, as same is not captured by s. 3 of the Schedule. The medical records documents identify ongoing pain, reduced function, and a diagnosis of mechanical back pain. However, the records do not specify whether it was the subject accident or a subsequent accident that caused these issues. Additionally, I cannot locate a direct diagnosis of chronic pain syndrome in the records. I find that the medical evidence is not enough to warrant removal from the MIG due to chronic pain on a balance of probabilities.
12Dr. Caturay diagnosed the applicant with an adjustment disorder with anxiety. However, the medical notes and records attribute this diagnosis to personal issues the applicant experienced unrelated to the subject car accident. Instead, they refer to ongoing marital, housing and work issues. While I sympathize with the applicant, the evidence does not suggest her ongoing psychological impairments are directly tied to the subject accident.
13I am compelled by the medical evidence noted in the IE report conducted by Dr. Miller on October 11, 2019. Dr. Miller found no compelling evidence of a psychological condition as a direct result of the subject accident. Further, Dr. Miller noted that the applicant showed no signs of distress and was engaged in all of her pre-accident activities of daily living.
14I find that the medical evidence is not enough to warrant removal from the MIG on a balance of probabilities.
The disputed treatment plans are not reasonable and necessary.
15Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the OCF-18s in dispute are reasonable and necessary under sections 14 and 15 is not required.
Interest
16As no benefits are overdue, no interest is payable under s. 51.
ORDER
17I find:
i. The applicant has failed to demonstrate that her accident-related injuries or claim of chronic pain and psychological conditions warrant removal from the Minor Injury Guideline (MIG);
ii. The applicant is not entitled to the treatment plan dated October 15, 2019 as it is not reasonable or necessary;
iii. The applicant is not entitled to the treatment plan dated February 27, 2020 as it is not reasonable or necessary;
iv. The applicant is not entitled to the treatment plan dated June 7, 2021 as it is not reasonable or necessary;
v. The applicant is not entitled to interest as there is no overdue payment of benefits.
Released: May 11, 2023
__________________________
Andrea Reid
Adjudicator