Licence Appeal Tribunal File Number: 21-005350/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:
Alexia Manuel
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Pasquale Maiolo, Paralegal
For the Respondent:
Ravinder Chahal, Counsel
HEARD: By way of written submissions
OVERVIEW
1Alexia Manuel (“the Applicant”) was involved in an automobile accident on September 11, 2018 and sought benefits from Allstate Insurance (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week for the period from October 11, 2018 to October 11, 2020?
Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit for medical and rehabilitation benefits?
Is the Applicant entitled to a medical benefit in the amount of $1,292.78 for physiotherapy services recommended by Applewood Sports & Physiotherapy Ltd. in a treatment plan dated March 20,2021?
Is the Applicant entitled to a medical benefit in the amount of $4,4165.88 for services recommended by Essential Physio in a treatment plan dated June 22, 2021?
Is the Respondent liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest on any overdue payment of the benefits?
RESULT
3I find that the Applicant has not met her onus to demonstrate that she is entitled to the benefits claimed, interest, or an award.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck from behind by another vehicle while approaching a suburban intersection. She sought no medical attention at the scene of the accident or immediately thereafter and reported to an assessor that she drove to work following the accident.
5The Applicant claims entitlement to NEBs and treatment beyond the MIG funding limit of $3,500.00. She submits that she suffers from ongoing neck and lower back pain that is chronic and forced her to change employment to a less physically demanding job. The Respondent submits that the Applicant does not suffer a complete inability to carry on a normally life and that she sustained predominantly minor injuries and was appropriately treated within the MIG.
6I agree with the Respondent and find that the Applicant has not met her onus to demonstrate that he is entitled to the benefits claimed.
ANALYSIS
Non-Earner Benefits (“NEBs”)
7I find that the Applicant is not entitled to NEBs as claimed.
8Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.
9The Applicant has provided no evidence depicting a change in her ability to engage in a normal life. The Applicant’s evidence is limited to the disability certificate by Dr. Z. Yousef, chiropractor, dated November 14, 2018. This document is outweighed by the other evidence when considering whether she meets the test for NEBs outlined in Heath. The disability certificate identifies no pre-accident activities that the Applicant is unable to engage in and does not include the section which list of injuries sustained by the Applicant. Additionally, the Applicant made submissions that following the accident she continued to work, albeit at a reduced rate, until she found new employment that was less physically demanding. However, she provided no evidence to support her claim regarding a change in employment.
10On the other hand, I am persuaded by the insurer’s examination (“IE”) report by Dr. S. Bhangu, physiatrist and find that the Applicant is not entitled to NEBs. Dr. Bhangu concluded that the Applicant was not entitled to NEBs because she did not suffer a complete inability to carry on a normal life. Dr. Bhangu noted that the Applicant reported independence with all personal care tasks, most of her household chores, and returned to dancing for leisure. Dr. Bhangu’s recommendation was for the Applicant to engage in a self-directed exercise program.
11It’s clear to me that the Applicant does not suffer a complete inability to carry on a normal life. She returned to work following the accident and continued to engage in her daily activities. As a result, I conclude that the Applicant is not entitled to NEBs.
Minor Injury Guideline (“MIG”)
12The 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 the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
13Pursuant to section 18(2) of the Schedule, the $3,500.00 funding limit for minor injuries does not apply if the Applicant can demonstrate that she had a documented pre-existing medical condition which would prevent her from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit.
14I find that the Applicant has not met her onus of demonstrating that she sustained an injury that is not a minor injury as defined in section 3 of the Schedule.
15The Applicant sustained predominantly sprain and strain injuries. As noted previously, the disability certificate by Dr. Yousef never included a list of accident-related injuries. Dr. Bhangu concluded in the June 15, 2021 report that the Applicant sustained soft-tissue injuries to her neck and low back – which are predominantly a minor injury as defined in the Schedule.
16The Applicant provided no evidence demonstrating that her sprain and strain injuries have developed into a chronic pain condition. The disability certificate completed by Dr. Yousef is from about a month post-accident. Findings in this immediate post-accident acute stage of one’s recovery hold virtually no relevance when assessing chronic conditions. Dr. Bhangu’s assessment and report are dated more than two-and-a-half years after the accident, which is timely for considering potential chronic conditions. Yet, Dr. Bhangu identified no ongoing chronic condition and concluded that the Applicant sustained soft-tissue injuries which could be treated with a self-directed exercise program.
17Accordingly, I find that the Applicant had not met his onus to demonstrate that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule.
The Treatment and Assessment Plans in Dispute and Interest
18The Treatment and assessment plans in dispute propose goods and services that fall outside the parameters of the MIG. Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he would not be entitled to benefits outside the MIG and the $3,500.00 funding limit on treatment.
19Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, I find that no interest is payable either.
CONCLUSION AND ORDER
20The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.
21The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the funding limit for a minor injury.
22No interest is payable.
23The Application is dismissed.
Released: June 30, 2023
Brian Norris
Adjudicator