Citation: Pierre v. Intact Insurance Company, 2023 ONLAT 21-000160/AABS

Licence Appeal Tribunal File Number: 20-000160/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:

Johnny Pierre

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Tania Lanteigne, Paralegal

For the Respondent:

Crystal Hocking, AB Specialist

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Johnny Pierre (the “applicant”) was involved in an automobile accident on November 24, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 9, 2017 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Intact Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES IN DISPUTE

2The following issues are agreed to be 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 Minor Injury Guideline (“the MIG”)?

2. Is the applicant entitled to $3,989.90 for physiotherapy services recommended by Midland Wellness Centre in a treatment plan/OCF-18 (“plan”) dated December 4, 2018?

3. Is the applicant entitled to $2,564.96 for physiotherapy services recommended by Midland Wellness Centre in a plan dated April 11, 2019?

4. Is the applicant entitled to $2,269.34 for physiotherapy services recommended by Midland Wellness Centre in a plan dated September 5, 2019?

5. Is the applicant entitled to $1,995.33 for a psychological assessment recommended by Midland Wellness Centre in a plan dated August 12, 2019?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. The applicant is not entitled to the treatment plans in dispute, as they have been proposed outside of the $3,500.00 funding limit of the MIG.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.

BACKGROUND

4The applicant was the rear-seated passenger of a vehicle involved in a collision in Toronto on November 24, 2018. The vehicle in which the applicant was riding was proceeding through an intersection when it was struck on the left side by another vehicle. The applicant reported twisting his right wrist against the driver’s seat, hitting his head against the inside of the rear door window of the vehicle, and briefly losing consciousness.² He first sought medical attention at a walk-in clinic on November 26, 2018.³

5The applicant submits that he has sustained “multiple physical, emotional, and psychological impairments” that do not fall within the definition of a minor injury as defined in s. 3(1) of the Schedule.⁴ As a result, he argues that he is entitled to treatment outside of the MIG and that the treatment plans in dispute are reasonable and necessary.

6The respondent takes the position that the applicant’s injuries fall within the definition of a minor injury as defined in s. 3(1) of the Schedule, and that the medical benefits in dispute have not been proven to be reasonable and necessary regardless of the applicant’s MIG status.

ANALYSIS

The Minor Injury Guideline (MIG)

7The 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 also defined in the Schedule.

8Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner prior to the accident, prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury, such as chronic pain or a psychological impairment.

9If an insurer deems an applicant’s injuries to be minor in nature, the evidentiary onus is on the applicant to establish that the MIG and its related $3,500.00 funding limit should not apply.⁵

Can the Applicant’s Injuries be Defined as Minor Injuries?

10I find that the applicant has not demonstrated that he has sustained accident-related injuries that would warrant his removal from the MIG.

11The applicant’s medical evidence is unpersuasive. It consists almost entirely of a Disability Certificate (“OCF-3s”) and incomplete copies of the treatment plans in dispute,⁶ with no supporting medical examinations other than brief notations from the clinical notes and records (“CNRs”) of the applicant’s doctor at a walk-in clinic, and inconclusive medical imaging reports.

12The OCF-3 of Dr. Murray McCutcheon, chiropractor, dated December 4, 2018, documents soft-tissue injuries that are defined as minor in nature by the Schedule. The list of injuries includes sprain and strain of the left wrist, whiplash associated disorder with complaint of neck pain with neurological signs, low back pain, and subluxation complex (vertebral).⁷ The expected duration of these impairments was estimated at more than 12 weeks. Dr. McCutcheon also notes sleep disorders, malaise and fatigue, nervousness, and unspecified other issues regarding cognitive functions and awareness, but I assign these observations little weight as he is a chiropractor with no claimed psychological training.

13The CNRs of Dr. Mehrdad Vakilha, general practitioner, document predominantly soft-tissue injuries. The CNRs also show few visits regarding injuries sustained in the subject accident.⁸ The applicant saw Dr. Vakilha on September 26, 2018, just two days after the accident to complain of neck and back pain. This resulted in a diagnosis of mechanical back pain and strain along with a recommendation of physiotherapy and massage therapy.⁹ The applicant followed these recommendations and was treated within the MIG at Midland Health and Wellness from December 21, 2018 to June 2019.¹⁰

14The applicant met with Dr. Vakilha on September 17, 2019 and again on September 27, 2019. His primary complaints were left neck and arm pain that first arose (by the applicant’s own self-reporting) on or around September 15, 2019.¹¹ There is no mention of the accident. There is, however, a specific comment from the September 17, 2019 appointment noting the applicant presented with “no back pain, no numbness or weakness.”¹²

15As a result, I cannot connect the symptoms reported to Dr. Vakilha in September, 2019 to the accident. The pain in question in September 2019 appeared to start about nine months following the accident and it did not involve the back sprain and strain that Dr. Vakilha diagnosed the applicant with as a result of the accident.

16The applicant further raises the possibility of a pre-existing injury exacerbating the injuries suffered in the subject accident, but there is little evidence to support such an assertion. The MRIs and ultrasounds submitted with the applicant’s submissions show nothing definitive and there are no diagnoses of any sort of underlying injury that could have exacerbated the injuries of the subject accident.¹³ Some of the conditions mentioned by the applicant here also seem to have no relation to the injuries suffered by the applicant in the subject accident, such as the plantar fasciitis revealed in an ultrasound on January 8, 2021.¹⁴

17I prefer the medical evidence of the respondent, which relies primarily on an insurer’s examination (“IE”) report of Dr. Ryan Williams, physiatrist, dated June 12, 2019, along with an addendum dated December 4, 2019.¹⁵ I place significant weight on these reports, as they are the sole expert reports submitted that involve a direct physical examination of the applicant and an analysis of the medical records.

18In his initial report, Dr. Williams’ diagnoses the applicant as suffering from accident-caused impairments such as post-traumatic headache, whiplash associated disorder type II, lumbar sprain/strain, and right knee pain that he notes has been resolved.¹⁶ He finds no compelling evidence that the applicant suffered from any pre-existing condition that would contribute to accident-related impairments.¹⁷

19Dr. Williams notes the possibility of scapholunate instability in the applicant’s right wrist and cites the need for an MR arthrogram to obtain a definitive diagnosis in order to determine whether the applicant’s injuries from the accident can be defined as predominantly minor.¹⁸ This question was answered in Dr. Williams’ addendum report, however, with the notation that Dr. Vakilha said that medical imaging was not needed as the applicant’s “wrist symptoms had resolved.”¹⁹

20As a result, Dr. Williams concluded that the applicant’s injuries “are felt to be predominantly minor”²⁰ and that the applicant does not require any further treatment or rehabilitation services.²¹ (Dr. Williams’ conclusion is reflected in the CNRs of Dr. Vakilha, which note that the applicant told the general practitioner that his left wrist was back to “normal” and that the applicant agreed he did not require any medical imaging of the wrist.²²)

21Given the strength of Dr. Williams’ reports, the absence of accident-specific complaints in Dr. Vakilha’s CNRs, and the overall lack of medical evidence presented by the applicant, I find that the applicant’s injuries fall within the definition of a minor injury. I also find that the applicant does not suffer from a pre-existing injury that could have been exacerbated by any accident-related injuries.

The Treatment Plans

22As all of the treatment plans in dispute propose treatment outside of the MIG and its $3,500.00 funding limit on treatment, the applicant is not entitled to any of the medical benefits in dispute.

Interest

23Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits. Having found that the applicant is not entitled to any benefits, it follows that no interest is payable.

CONCLUSION AND ORDER

24I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 funding limit of the MIG.

ii. The applicant is not entitled to the treatment plans in dispute, as they have been proposed outside of the $3,500.00 funding limit of the MIG.

25The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Applicant Written Submissions, page 4.
3. 3Respondent Written Submissions, page 2.
4. 4Applicant Written Submissions, page 8.
5. 5Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
6. 6Applicant Submissions, Tabs 2, 3, 4, and 5.
7. 7Ibid., Tab 1.
8. 8Ibid., Tab 7 (Greystone Medical Clinic Records).
9. 9Ibid., page 55.
10. 10Respondent Book of Documents, Tab 3 (OCF-21 of Midland Wellness Clinic, March 5, 2019).
11. 11Applicant Submissions, Tab 7, pages 56ff. (Greystone Medical Clinic Records).
12. 12Ibid., Tab 7, page 56.
13. 13Ibid., Tab 7.
14. 14Ibid., Tab 7, page 42.
15. 15Respondent Book of Documents, Tabs 6 and 7 (IE Reports of Dr. Williams, June 12, 2019 and December 4, 2019).
16. 16Ibid. Tab 6, page 86.
17. 17Ibid. Tab 6, page 85.
18. 18Ibid.
19. 19Ibid., Tab 7, page 90.
20. 20Ibid., Tab 7, page 91.
21. 21Ibid., Tab 7, page 92.
22. 22Applicant Submissions, Tab 7, page 58 (Greystone Medical Clinic Records).