Acevedo-Filiponi v. Intact Insurance Company, 2023 CanLII 58505

Citation: Acevedo-Filiponi v. Intact Insurance Company, 2023 ONLAT 20-013988/AABS

Licence Appeal Tribunal File Number: 20-013988/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:

Elsy Acevedo-Filiponi

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Antonia Hristova, Paralegal

For the Respondent: Theomarcus Giannou, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Elsy Acevedo-Filiponi (the “applicant”) was involved in a motor vehicle accident on November 11, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Intact 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.

2The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The issues in dispute involve a determination of the applicant’s MIG status, five treatment plans for chiropractic services plus interest, and an award.

3The respondent notes in submissions that it has paid $3,415.00 in medical benefits under the MIG, leaving a remainder of $85.00. However, each of the treatment plans before me indicate that the applicant’s impairment is not predominately a minor injury and propose treatment outside of the MIG. As a result, the applicant must be found to warrant treatment outside the MIG to be entitled to any of the treatment plans in dispute.

ISSUES IN DISPUTE

4The following issues are 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 MIG?
2. Is the applicant entitled to $1,338.81 for chiropractic services in a treatment plan/OCF-18 recommended by VIP Health Care Limited dated August 16, 2018?
3. Is the applicant entitled to $2,352.81 for chiropractic services in a treatment plan/OCF-18 recommended by VIP Health Care Limited dated September 12, 2018?
4. Is the applicant entitled to $1,328.33 for chiropractic services in a treatment plan/OCF-18 recommended by VIP Health Care Limited dated December 30, 2018?
5. Is the applicant entitled to $1,113.76 for chiropractic services in a treatment plan/OCF-18 recommended by VIP Health Care Limited dated March 22, 2019?
6. Is the applicant entitled to $1,236.95 for chiropractic services in a treatment plan/OCF-18 recommended by VIP Health Care Limited dated March 26, 2019?
7. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

5I 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 treatment plans in dispute propose treatment outside of the MIG, she is not entitled to the treatment plans in dispute, nor interest.

iii. The respondent is not liable to pay an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6Section 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 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.

7The 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 suffers from neck, thoracic, lumbar, sacroiliac, and left knee pain that has become chronic. She relies on the clinical notes and records (“CNRs”) of Dr. Dragoljub Malisic and Dr. Preston Tran, her family physicians from the Appletree Medical Group, dating from June 7, 2017 until March 29, 2018; CNRs and correspondence from Dr. Nguyen T. Lam, chiropractor, of VIP Health Care, dated September 12, 2017 to February 19, 2021; and the treatment plans in dispute.

8Intact counters that the applicant has not submitted sufficient medical information to demonstrate a chronic pain condition, and that she should therefore remain within the MIG. It relies primarily on an s. 44 insurer’s examination (“IE”) report of Dr. Paul Tepperman, physician, dated August 31, 2021 (the result of an August 17, 2021 in-person examination).

Is the applicant suffering from chronic pain that warrants removal from the MIG?

9I 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. Correspondingly, she remains within the MIG.

10Little medical evidence has been proffered to support the applicant’s contention that she suffers from chronic pain, let alone chronic pain with an accompanying functional limitation that would warrant removal from the MIG. The applicant makes frequent references in submissions to how much time has passed since the accident, noting that she has been enduring physical pain and physical limitations for far longer than the three to six months post-accident standard that is typically required for a diagnosis of chronic pain. But experiencing pain over a significant length of time is not the only criteria required to establish chronic pain. Medical evidence is also necessary, which the applicant has not submitted in support of her claims

11Most notably, the applicant has presented no evidence that she has ever been diagnosed with chronic pain. She has apparently never submitted a Disability Certificate/OCF-3. She only attended her family physicians’ office twice with concerns about the accident—on November 14, 2017, when the CNRs note that she was “experiencing body pain,” and on February 23, 2018, where the CNRs show that she complained about back, neck, and left knee pain. X-rays of her left knee on November 11, 2017 revealed nothing abnormal. Her family physicians do not seem to have prescribed any medication for this pain, ordered additional medical diagnostic testing, or referred her to another physician to further investigate these symptoms. The records actually more thoroughly document the applicant’s history of anxiety and issues with a prior motor vehicle accident that occurred on April 18, 2017 than the subject accident. However, the applicant does not make an argument that the subject accident exacerbated either condition, or submit medical evidence to support such a contention. In all, there is not enough medical evidence to prove chronic pain and justify the applicant’s removal from the MIG.

12I assign limited weight to the majority of the applicant’s evidence, as it consists of treatment records from VIP Health Care and a letter from Dr. Lam to Dr. Malisic dated March 19, 2019 discussing how he has been treating her for “chronic pain.” These documents prove that the applicant participated in a significant amount of physical therapy and chiropractic manipulation, and that her chiropractor believed her symptoms to have resulted in chronic pain and some functional limitations that affected her work performance. However, both the records and the correspondence are of minimal evidentiary value without the support of objective medical records, which as noted above are not present here. Dr. Lam also ventured well outside of his area of expertise in his letter, which covered a wide range of topics from chronic pain to functional limitations to fibromyalgia. He also wrote that he was recommending that the applicant see Dr. Jason Su, an apparent sport medicine/chronic pain specialist, although there is no evidence that this referral or an appointment occurred. Again, these chiropractic records are not sufficient to demonstrate that the applicant suffers from chronic pain and should be removed from the MIG.

13I prefer the IE report of Dr. Tepperman. Although the applicant contends in submissions that this report should be deemed unreliable due to Dr. Tepperman not reviewing her chiropractic records from Dr. Lam of VIP Health Care, I assign it significant weight. While the full VIP Health Care treatment file would certainly have afforded Dr. Tepperman more information, I do not agree that this would have impacted in any significant way on his observations and conclusions, as they were arrived at through an in-person physical examination and a clinical interview. Further, Dr. Tepperman noted in his report that he did review a report by Dr. Lam (although specifics about this document are not provided), along with the CNRs from Appletree Medical Group, the left knee x-ray from November 11, 2017, the applicant’s OHIP summary, the applicant’s Application of Accident Benefits/OCF-1 and Treatment Confirmation Form/OCF-23, and the treatment plans in dispute. In my view, Dr. Tepperman sufficiently reviewed at least the majority of the medical evidence.

14I also see no medical reason to doubt Dr. Tepperman’s report, as his report is the most thorough medical assessment of the applicant before me. I accept his conclusion that the applicant suffered soft-tissue injuries that fall under the definition of a minor injury in the Schedule—namely myofascial strain of her cervical and lumbar paraspinal musculature and contusion of her knees—without identifiable functional limitations, and therefore should remain within the MIG.

15Further, I find that the applicant does not suffer from a psychological impairment that would warrant removal from the MIG. Although she does not advance this argument in submissions, there are allusions in the evidence to a pre-existing anxiety condition being exacerbated by the accident. Dr. Tepperman concluded that the applicant suffered from increased anxiety as a result of the accident, but declined to comment further as this was out of his area of expertise. This aligns with Appletree Medical Group CNRs, which show that the applicant was treated for anxiety through prescription medication. However, neither the observation of Dr. Tepperman nor the evidence in the CNRs seem to have been followed up on medically. So, allusions notwithstanding, not enough medical support has been provided in submissions to substantiate a finding that the applicant should be removed from the MIG for a psychological impairment.

16For the reasons noted above, I find that the applicant has failed to demonstrate that she suffers from an injury that is not minor as defined in the Schedule. She remains within the MIG and is subject to its $3,500.00 limit on treatment.

The Treatment Plans

17As the applicant has been found to remain within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, it follows that she is not entitled to these plans, nor interest.

AWARD

18As no benefits are owing, it also follows that the respondent is not liable to pay an award.

ORDER

19The 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 all of the treatment plans in dispute propose treatment outside of the MIG, she is not entitled to these plans, nor interest.

iii. The respondent is not liable to pay an award.