Citation: Ellenson v. Intact Insurance, 2023 ONLAT 21-006013/AABS

Licence Appeal Tribunal File Number: 21-006013/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:

Amanda Ellenson

Applicant

and

Intact Insurance

Respondent

DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Dylan Crosby, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Amanda Ellenson, the applicant, was involved in an automobile accident on April 27, 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 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 a medical benefit in the amount of $3,150.47 for the cost of physiotherapy and chronic treatment, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 dated July 11, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $3,790.70 for the cost of psychological treatment, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 dated October 27, 2020?

iv. Is the applicant entitled to a medical benefit in the amount of $2,180.00 for the cost of psychological treatment, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 dated September 22, 2020?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

4Having found that the applicant sustained a minor injury as a result of the accident, she is not entitled to the disputed OCF-18s because they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.

5Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The 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 defined in the Schedule.

7Section 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.

8It is the applicant’s burdento 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).

9The applicant submits she suffered physical and psychological impairments, including chronic pain, as a result of the accident and these injuries fall outside of the definition of a minor injury and she is therefore entitled to treatment beyond the $3,500.00 MIG limit. The respondent submits the applicant has failed to meet her evidentiary onus, as the evidence tendered does not support the position that she suffered any physical or psychological impairments that fall outside the scope of the MIG. I agree with the respondent.

The applicant’s physical impairments fall within the definition of a minor injury

10The applicant has not established her physical accident-related impairments fall beyond the definition of a minor injury.

11The Disability Certificate (“OCF-3”) dated May 4, 2018 completed by B. Milen, chiropractor, indicated the applicant suffered predominantly soft-tissue injuries including a superficial injury to the neck, whiplash associated disorder (“WAD2”) with complaint of neck pain with musculoskeletal signs, sprain and strain of lumbar spine, low back pain, sprain and strain of the thoracic spine. The anticipated duration of these impairments were 9-12 weeks.

12The clinical notes and records provided establish the applicant suffered only soft-tissue injuries as a result of the accident. The applicant initially did not report the accident to her family physician, Dr. Gertler. Her first visit occurred on May 13, 2020, more than two years post-accident, when she complained of neck pain. On June 24, 2020 she reported “chronic neck pain”, but this was noted after a subsequent accident. The applicant then visited Dr. K. Chahal, family physician, six times between May 13, 2021 and July 26, 2022, noting neck pain. However, it remains unclear what symptoms were related to the April 2018 accident. Dr. Chahal twice refers to accidents in 2017 and 2020, but not in 2018. These family physician records do not include any diagnostic imaging related to any accident-related impairments.

13The records provided by Whitby Wellness Centre Ltd., fail to make any connection between the applicant’s ongoing neck pain, and the index accident. The applicant attended for treatment six times between May and October 2018, then fifteen times between January and May 2020. The records indicate the applicant reported a subsequent accident on June 9, 2020, but by August 2020 reported that her neck was “improved” and “a lot better than before” and the clinician noted that she had full range of motion in her neck, with only mild tenderness. On September 3, 2020, these records note the applicant was involved in a third accident, and again, her neck was “really sore”. Otherwise, the applicant does not rely on any additional medical evidence with relation to her physical accident-related impairments.

14In contrast, I place weight upon the two expert reports tendered by the respondent. The first by Dr. R. Moola, physician, dated September 27, 2019, diagnosed the applicant with WAD2 cervical myofascial strain and provided that the prognosis was excellent for a full recovery. The applicant reported to Dr. Moola she was independent with her self care, activities of daily living and there had been no change to her social life or cognitive function following the accident. Dr. Moola further noted no evidence of musculoskeletal or neurological impairment upon examination. Finally, he noted that no follow-up facility-based treatment was necessary.

15The second report by Dr. P. Dimakis, chiropractor, dated September 27, 2019, also concluded she demonstrated no functional impairment. Dr. Dimakis noted there were no shortfalls, or deficiencies noted precluding the applicant from performing the essential and non-essential tasks of her employment as a flight attendant. The applicant also reported a 70% improvement in her condition, and that she was fully independent in all respects of her self care.

16I cannot conclude that the applicant would not have suffered physical impairments but for the accident. The clinical notes and records tendered illustrate a pattern of neck pain approximately thirteen months post-accident. However, few of these reports are directly tied to the index accident. There are issues with causation of this alleged impairment, as the applicant was involved in at least two subsequent accidents in June and September 2020, making a causal determination for her neck pain difficult. These difficulties are compounded by the lack of reporting immediately post-accident and the lack of diagnostic imaging related to her physical impairments. In direct contrast, the expert reports tendered by the respondent indicate the applicant suffered only a neck strain as a result of the accident, is independent, physically capable of resuming her employment, and required no further facility-based treatment.

17Given these issues, I am persuaded the applicant suffered soft-tissue physical injuries as a result of the accident. Her sprain-strain type injuries fall squarely within the definition of a minor injury in s. 3 of the Schedule. Thus, I am satisfied the applicant’s physical impairment may be treated within the remaining the MIG funding limits.

The applicant has not established he suffered accident-related psychological impairment

18Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of a “minor injury.” I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment.

19I place no weight upon the Psychological Pre-Screen Report provided by Dr. L. Steiner, psychologist, dated September 22, 2020. This report provided a diagnosis of adjustment disorder, mixed anxiety, depression, and specific phobia. However, it appears this diagnosis is based wholly on the applicant’s self-reporting. There is no reference to the medical records reviewed, nor to any psychometric testing undertaken in making these psychological diagnoses. This is detrimental to the applicant’s claim because the report is anomalous to and unsupported by the balance of her medical evidence. In fact, psychological symptoms are not mentioned anywhere in the clinical notes and records of Dr. Gertler and Dr. Chahal. Otherwise, there are no psychological symptoms reported throughout the entirety of the clinical notes and records provided. Aside from this report, the applicant does not rely on any additional expert medical report to establish any accident-related psychological impairment.

20Given the conspicuous lack of any psychological symptom reporting in the clinical notes provided and the weaknesses of Dr. Steiner’s Pre-Screen Report, I find that the applicant has not established she suffered a psychological impairment as a result of the accident. As a result, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of a minor injury.

The applicant has not established she suffers accident-related chronic pain

21The applicant has not established she suffers chronic pain, or a chronicity of pain symptoms causing a functional impairment as result of the accident.

22I have been provided with little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on her functionality. The applicant failed to make any reference to potential chronic pain or a chronicity of pain symptoms tied to the index accident. The clinical notes do not provide any reporting of pain symptoms until more than a year post-accident and there is no expert report or diagnosis of chronic pain syndrome in the evidence tendered. In addition, the clinical notes fail to demonstrate that the applicant suffers a functional impairment due to ongoing pain. Although not required, the applicant makes no reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”), nor the criteria for helping to determine if the applicant suffers from accident-related chronic pain.

23Critically, the clinical notes and records failed to establish the applicant met three of the six AMA Guides criteria to demonstrate that she suffers from chronic pain as a result of the index accident. The records do no establish abuse or dependence upon prescription drugs, excessive dependence upon health care providers or family, any secondary deconditioning due to disuse or fear-avoidance, no withdrawal from social milieu, failure to restore pre-injury function insufficient to pursue work, family, or recreational needs, nor any psychosocial sequelae stemming from the accident.

24Based on the evidence adduced, and in consideration of the AMA Guides criteria, I find the applicant has failed to demonstrate that her injuries fall beyond the treatment limits of the MIG. The applicant has not provided sufficient medical evidence to establish that her functionality is otherwise impaired and chronic pain is the cause of her disability.

The applicant is not entitled to the OCF-18s in dispute

25Having found that the applicant sustained a minor injury as a result of the accident, it follows that she is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

The applicant is not entitled to interest

26Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

26The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

ii. The applicant is not entitled to the disputed treatment plans, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;

iii. The applicant not entitled to interest pursuant to s. 51 of the Schedule.