Licence Appeal Tribunal File Number: 21-007052/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:
Yvette Castro
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Ryan A. Sullivan, Counsel
For the Respondent:
Julianne Brimfield, Counsel
Arijana Schrauwen, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Yvette Castro (the “applicant”) was involved in a motor vehicle accident on December 14, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Co-operators General Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2Although neither party specifies in submissions the amount of treatment that has been incurred under the MIG, both refer to the applicant having exhausted her benefits. Furthermore, each of the treatment plans in dispute propose treatment outside of the MIG. The healthcare practitioner who completed them checked the “No” boxes on page two of each form, indicating that the applicant’s impairments were deemed to not be a minor injury as referred to in the MIG. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to any of the treatment plans in dispute here.
ISSUES IN DISPUTE
3The following issues are in dispute:
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?
Is the applicant entitled to $3,313.68 for chiropractic services and other medical assistive devices in a treatment plan/OCF-18 recommended by Dr. Angelo Frisina, chiropractor, dated January 31, 2020?
Is the applicant entitled to $2,056.76 for massage therapy services in a treatment plan/OCF-18 recommended by Greg Ryckman, massage therapist, dated February 4, 2020?
Is the applicant entitled to $3,188.68 for chiropractic services in a treatment plan/OCF-18 recommended by Dr. Frisina dated December 7, 2020?
Is the applicant entitled to $2,026.76 for massage therapy services in a treatment plan/OCF-18 recommended by Mr. Ryckman dated January 27, 2021?
Is the applicant entitled to $3,188.68 for chiropractic services in a treatment plan/OCF-18 recommended by Dr. Frisina dated May 5, 2021?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
4I find that:
i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. Correspondingly, she remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as both the MIG has been exhausted and the treatment plans in dispute propose treatment outside of the MIG, she is not entitled to the treatment plans in dispute, nor interest.
ANALYSIS
The Minor Injury Guideline (“MIG”)
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 minor injuries. 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.” An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
6The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG. Here, the applicant argues that she continues to suffer from physical pain many years post-accident and that the MIG designation is unfair and unsubstantiated. She relies on the clinical notes and records (“CNRs”) of Dr. Bashar Elia, family physician, from 2016 through 2019; treatment records from Stoney Creek Rehab and Wellness Centre from 2020 to 2022; a Disability Certificate/OCF-3 completed by Dr. Frisina and dated February 7, 2020; and the treatment plans in dispute.
7The respondent takes the position that the applicant suffered only soft-tissue injuries in the accident and has already been treated for these conditions to the full extent of the MIG and its $3,500.00 limit. It submits no medical evidence of its own, but relies on records from Health-Wise Medical Centre dated December 15, 2016 and CNRs from Total Physio Clinics, facilities where the applicant sought treatment following the accident.
Has the applicant sustained injuries that warrant removal from the MIG?
8I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
9Neither the argument nor the medical evidence of the applicant is persuasive. The argument as contained in the applicant’s written submissions is brief, covering just three paragraphs, and it focuses almost entirely on the “enormous” amount of physical rehabilitation that she has incurred in recent years. Yet virtually no evidence has been adduced to support this assertion and the accompanying claim that the applicant would “not have sought so much treatment...if she did not need the service.”
10This is not, in my view, a convincing argument, especially since all of the medical evidence indicates that the applicant suffered from soft-tissue injuries in the accident. A prescription note from Health-Wise Medical Clinic dated December 15, 2016 (one day post-accident) prescribed massage therapy and physiotherapy due to “MSK stiffness/muscular only.” Following this, the applicant began attending Total Physio Clinic on December 29, 2016, for treatment of “whiplash injury” and “neck & lumbar sp./st.” Records from Total Physio for the first part of 2017 show that she continued treatment for these same soft-tissue injuries until at least May 30, 2017, when a note was appended to her file recommending that treatment be discontinued. Records from Total Physio up to this date indicate improvement, to the point where the applicant was reporting only mild neck pain and right elbow pain.
11Further, the applicant did not seem to attend her family physician, Dr. Bashar Elia, with any complaint about the accident until October 15, 2018. He noted in his CNRs from an appointment with the applicant on this date that she was experiencing a “flare” of the “whiplash” suffered in the accident almost two years earlier. Dr. Elia did not record any observations or diagnoses beyond this, however, leaving only his assessment that the applicant was suffering from this soft-tissue condition at the time of the appointment. Granted, the applicant only began seeing Dr. Elia in March 2018. But the applicant did not submit medical documentation from another health practitioner between the time of the accident and March 2018 aside from the single Health-Wise Medical Clinic prescription mentioned above. This is also the only significant mention of the accident featured in Dr. Elia’s CNRs. All of the applicant’s other appointments with the family doctor involved unrelated health matters.
12As a result, there is no objective medical support for the applicant’s OCF-3, which was submitted on February 7, 2020, by Dr. Frisina. This OCF-3 also describes only soft-tissue injuries, such as whiplash (“WAD 3”), sprain/strain of the lumbar and thoracic spine, arm neuralgia, and right elbow strain (“tennis elbow”). The applicant submitted extensive treatment records from Stoney Creek Rehab and Wellness Centre to back up her allusions to these injuries having become chronic by this point in time, but this is not sufficient to demonstrate that removal from the MIG is warranted—particularly in the absence of medical records, diagnostic imagining, or specialist reports. At any rate, I find no evidence in the applicant’s submissions to support the existence of a chronic condition that would necessitate the applicant’s removal from the MIG.
13All of the above demonstrates, in my view at any rate, that the applicant experienced whiplash and associated spinal sprains and strains in the accident that she was appropriately treated for within the MIG. Nothing here supports the applicant’s claim that she suffered from physical injuries outside of the MIG definition of a “minor injury,” or that she was afflicted by any pre-existing condition that impeded her recovery within the MIG. Although the applicant argues that the respondent has not properly substantiated the MIG decision due to the absence of insurer’s examinations, it is the applicant’s burden to demonstrate that MIG removal is warranted. In my opinion, she has not been successful in doing so, regardless of the medical evidence submitted by the respondent, or the lack of same.
14Accordingly, I find that the applicant has not demonstrated that she suffers from injuries that warrant her removal from the MIG.
The Treatment Plans
15As the applicant has been found to remain within the MIG, and as the MIG has been exhausted and all of the treatment plans in dispute propose treatment outside of the MIG, it follows that she is not entitled to these plans, or interest.
ORDER
16The application is dismissed and I find that:
i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as the MIG has been exhausted and the treatment plans in dispute propose treatment outside of the MIG, she is not entitled to these plans, or interest.
Released: June 16, 2023
Brett Todd
Vice-Chair