[S.T.] v. Co-operators General Insurance Company, 2023 CanLII 56009

Citation: [S.T.] v. Co-operators General Insurance Company, 2023 ONLAT 20-003452/AABS

Licence Appeal Tribunal File Number: 20-003452/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:

[S.T.] (A Minor by his Litigation Guardian, [S.F.])

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Amanda Lennox, Counsel

HEARD: By way of written submissions

OVERVIEW

1[ST], the minor Applicant, was involved in an automobile accident on May 31, 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 Co-Operators General Insurance Company, the Respondent, and through his litigation guardian, [SF] (“S.F.”), applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute to be decided in the hearing are:

i. Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the MIG and the $3,500.00 funding limit on treatment?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,983.35 for a psychological assessment dated March 27, 2018?

iii. Is the Applicant entitled to interest on overdue payment of benefits?

RESULT

3The Applicant sustained a minor injury as a result of the accident.

4The Applicant is not entitled to the medical benefits in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

5Given there are no benefits owed, no interest is payable.

6The application is therefore dismissed.

ANALYSIS

7The Applicant was six years old at the time of the accident. He was a passenger in a van operated by his mother, when they were rear ended when traffic suddenly slowed on the highway.

8Based on the accident report, he was taken to hospital by ambulance however, it is not clear if he was assessed in hospital, as there are no hospital records from the date of the accident. The Applicant’s mother explained that she was taken to hospital in one ambulance, and the children were taken in a separate ambulance who were then joined by a family member at the hospital. The Applicant’s mother and his siblings were evaluated, but there are no records relating to any imaging or evaluation of the Applicant at hospital for any injuries. According to the psychological assessment prepared by Dr. A. Kaminska, dated February 23, 2021, the Applicant reported that a doctor asked him if he “puked”. Given that report, it is possible that he was evaluated, but there was no imaging or other hospital record for review. According to the decoded OHIP summary which covered the period up to April 2018, there are no entries on the date of the accident nor at any date thereafter for any accident-related injuries. The first visit to a medical professional after the accident occurred on August 4, 2017, when he was seen in the emergency room after falling off his bicycle.

9The initial application for benefits was filed on December 15, 2020, about three and a half years after the accident. S.F. submitted an affidavit on behalf of the minor Applicant, dated July 5, 2022, wherein she reported that the Applicant suffered from injuries to his neck, shoulder, chest, stomach and back in the accident. He reportedly continued to complain of constant pain in his neck and back, ongoing headaches and occasional stomach pain. She reported that, more than five years post-accident, she continued to rub topical heated muscle relaxant on his back daily, she gave him Advil, and that he had undergone chiropractic treatment to try to reduce his pain.

10In the four years of records produced since the accident, the Applicant has not seen his family physician, [the doctor], for any accident-related physical complaints. The Applicant provided no evidence of the chiropractic treatment received.

The Minor Injury Guideline

11The MIG establishes a treatment 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.”

12Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An Applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.

13It is the Applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).

14The Applicant submits that he suffers from chronic pain and psychological impairments that fall outside the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The Respondent submits that the Applicant has not met the burden of proving that the accident caused injuries that are not included in the definition of a minor injury as outlined in s. 3 of the Schedule. I agree with the Respondent.

Chronic Pain

15The Applicant submits that he has suffers from chronic pain or chronic pain syndrome, and as such his injuries fall outside of the definition of a minor injury. I find that the Applicant has not established that he sustained physical impairments that fall outside of the definition of a minor injury.

16Chronic pain conditions are not included in the minor injury definition. In order to establish that he has a chronic pain condition, the Applicant must demonstrate that his pain causes a functional impairment which adversely affects his well-being or that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

17The Applicant’s medical records include no ongoing pain complaints, contrary to the Applicant’s submissions. It was not until Dr. Kaminska’s report, almost four years post accident, that S. F. reported that the Applicant was suffering from constant pain. The Applicant told Dr. Kaminska that sometimes he doesn’t feel it. I find it hard to accept that a young child was complaining of constant neck and back pain for four years, yet no one took him to visit his family doctor or conduct imaging or reports of his pain to any other medical professional. While I appreciate that S.F. is a busy parent with her own issues, the medical evidence simply does not support a finding that the Applicant suffers from continuous pain of such severity that it causes distress accompanied by a functional impairment or disability.

18I further find that the Applicant does not meet the criteria for chronic pain syndrome in the AMA Guides. These criteria are not binding, however the Tribunal has found the AMA Guides provide a useful and persuasive analytical tool for assessing functional capacity as it relates to chronic pain. The AMA Guides require that at least three of the following six criteria are met in order to qualify for a diagnosis of chronic pain syndrome.

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances: he does not use prescription medication for pain.

(ii) Excessive dependence on health care providers or family: there is no such evidence that the Applicant’s alleged pain has been reported to a health care provider nor any corroborating evidence of excessive reliance on family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain: there is no evidence of such;

(iv) Withdrawal from social milieu: S.F. reports that he retreats into videogames. The Applicant had resumed riding his bike, per the ER report. At the first visit to [the doctor] after the accident, in December 2018, S.F. reported that there were issues with anxiety, anger, and rules at home, and was playing a “fair bit of videogames”. The doctor observed him to be happy and quite active, and S.F. reported that he was doing well in school.

(v) Failure to restore pre-injury function: the Applicant returned to school full time, was reportedly doing well, and apparently resumed riding his bicycle.

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors: Dr. Kaminska determined that his symptoms strongly indicated a diagnosis of PTSD, including insomnia, nightmares, hypervigilance and vehicular anxiety.

19I am not persuaded, based on the limited medical evidence beyond the report of Dr. Kaminska, that the Applicant satisfied three of the foregoing criteria. The medical evidence does not support that the Applicant sustained any physical impairment or chronic pain condition that would remove him from the MIG.

Psychological Impairment

20Psychological impairments that are the result of an accident may warrant removal from the MIG since the “minor injury” definition does not include such. That being said, such impairments must be more than mere “clinically associate sequelae” for a minor injury. The Applicant has not satisfied his burden to prove that he suffers from psychological impairments as a result of the accident.

21I find the psychological assessment report of Dr. Kaminska, dated February 2021, to be unpersuasive evidence demonstrating that the Applicant sustained a psychological impairment as a result of the accident.

22Dr. Kaminska noted that the Applicant had already been assessed for concerns of shyness and separation anxiety in May 2015, but no support was recommended. Following a 2016 incident that led to the Applicant and his mother being separated for five months, S.F. reported that during that period he experienced behavioural and anger issues on and off, but that he was better once he came home. During cross examination on her affidavit, S.F. reported that the Applicant’s anxiety and anger issues after the accident were “way worse” than they were after the separation following the 2016 incident. S.F. testified that the Applicant also received counselling with an organization called [organization name] for anxiety, for about a year or so, apparently a year or two after the accident; however, none of these records have been produced. He was reportedly diagnosed with ADD or ADHD. S.F. reported to Dr. Kaminska that in 2021, he had an individual education plan implemented.

23Dr. Kaminska noted that it would have been beneficial review the Ontario School Records and records from [organization name] to understand the Applicant’s history. The records were not provided to Dr. Kaminska, nor were they produced as evidence for the hearing. I decline to draw an adverse inference requested by the Respondent for failure to produce the [organization name] records, as they were not requested by the Respondent as part of the production order, and no motion was filed seeking their production. However, I find the Applicant has fallen short of the burden of proof to establish that he sustained a psychological impairment as a result of the accident.

24Other than one occasion in December 2018 when S.F. reported to [the doctor] that she thought the Applicant may be experiencing anxiety related to the car accident, there is little corroborating evidence of any of the purported symptoms the Applicant was experiencing. [the doctor] also questioned at that time whether the reported anxiety was accident related, as suggested by S.F., or whether it was more from behavioural problems at home. There was no further follow up with the family doctor after this visit.

25Overall, I am not sufficiently persuaded that the evidence provided supported a finding that the Applicant sustained a psychological impairment as a result of the accident. When considered within the context of all the evidence, or lack thereof, I find the psychological assessment report inconsistent. The Applicant returned to school and was reportedly doing well. Other than the one visit to the family doctor about 1.5 years post-accident, there were no reports of psychological symptoms. The family doctor also queried at that time whether the Applicant’s reported symptoms were accident related.

26For the foregoing reasons, I find the Applicant has not demonstrated that his physical or psychological impairments fall outside the minor injury definition.

27Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit on treatment.

CONCLUSION

28The Applicant sustained a minor injury as a result of the accident.

29The Applicant is not entitled to the treatment plans outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

30Given there are no benefits owed or payments outstanding no interest is payable.

31The application is dismissed.

Released: June 19, 2023

Kate Grieves

Adjudicator