Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-006281/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:
Donna Angus
Applicant
And
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Anita Goela
APPEARANCES:
For the Applicant:
Hermia Leung, Paralegal
For the Respondent:
Laura Meschino, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on March 30, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").
2The applicant was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
3The 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 the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to medical benefits in the amount of $2,782.50 for chiropractic services recommended by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan submitted on May 17, 2019 and denied by the respondent on May 23, 2019?
iii. Is the applicant entitled to medical benefits in the amount of $855.79 for chiropractic services recommended by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan submitted on October 16, 2019 and denied by the respondent on October 21, 2019?
iv. Is the applicant entitled to a cost of examination expense in the amount of $2,260.00 for an in-home Form-1 assessment recommended by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan submitted on May 17, 2019 and denied by the respondent on May 24, 2019?
v. Is the applicant entitled to a cost of examination expense in the amount of $2,260.00 for a psychological assessment recommended by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan submitted on May 17, 2019 and denied by the respondent on May 24, 2019?
vi. Is the applicant entitled to a cost of examination expense in the amount of $2,260.00 for a chronic pain 1 assessment recommended by Mount Dennis Weston Physiotherapy and Chiropractic Centre in a treatment plan submitted on April 19, 2021 and denied by the respondent on April 21, 2021?
vii. Is the respondent liable to pay an award under s.10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payments?
RESULT
4The applicant is subject to the MIG.
5The applicant is not entitled to the disputed benefits, interest or an award.
ANALYSIS
Minor Injury Guideline
6The applicant bears the onus of proving, on a balance of probabilities, that she is not subject to the MIG.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained impairments that are predominantly a minor injury in accordance with the MIG.
8Section 3(1) defines a "minor injury." This definition includes "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and clinically-related sequelae."
9Section 18(2) provides the MIG does not apply if the insured has a documented pre-existing injury or condition that precludes maximal medical recovery if confined to the MIG.
10Following the accident, the applicant received chiropractic therapy. She has incurred treatment beyond the $3,500.00 monetary limit of the MIG that has not been approved by the respondent.
11In her Disability Certificate, dated April 15, 2019, the applicant states that an ultrasound determined that she suffered a tear in her right shoulder from the accident.
12In the "Prior and Concurrent Conditions" section of the Disability Certificate, Megha Patel, physiotherapist, states that the applicant has a pre-existing condition in the form of postural deformities due to a mastectomy in 2011.
13In order to receive benefits under the Schedule, the applicant must first prove that her impairments were caused by the accident. For the reasons that follow, I do not find that the applicant has met her burden that the shoulder injury was caused by the accident.
14The clinical notes and records (CNRs) of her family physician, Dr. Mahdi Murti, indicate that she has complained of right shoulder pain since June 2017. There may also be complaints before that date but the entries are illegible. The applicant reported to Dr. Murti that she believes her shoulder pain is related to her job as a personal support worker, as her job requires her to frequently lift patients, and that many of her colleagues have similar pain complaints. I find that this self-reporting two years pre-accident weakens her claim that the accident caused her shoulder injury.
15After the accident, she worked modified duties, as she could not perform the heavier tasks associated with her job, such as bathing and lifting her patients. Again, this calls into question whether her shoulder pain was because of the accident and not a condition that has affected her for years.
16Pursuant to s. 18(2), an applicant may be removed from the MIG if they can demonstrate that a documented pre-existing condition will prevent maximal medical recovery if they are kept in the MIG. While the applicant's shoulder complaints are documented pre-accident, there is no indication that the pain requires treatment beyond the MIG. For example, Dr. Murti referred the applicant to Dr. Seligman, orthopedic surgeon and was seen on September 9, 2019. Dr. Seligman did not opine that the applicant's shoulder was exacerbated by the accident. Dr. Seligman did not endorse further follow-up treatment or investigations. He recommended Advil to manage the pain. He confirmed that the applicant had good range of motion. The applicant did not direct the Tribunal to another professional opinion to support removal from the MIG under s. 18(2).
17On balance, where the applicant must demonstrate that her shoulder injury was as a result of the accident, I am not persuaded that the applicant's shoulder injury was caused by the accident. It appears to be a pre-existing injury suffered as a result of the applicant's employment that resolved to its pre-accident condition. Further, I do not find that the applicant has demonstrated that her pre-existing shoulder impairment would prevent maximal recovery if confined to the monetary limits of the MIG, as she did not provide the Tribunal with compelling medical evidence to support removal on this ground.
18An applicant may also be removed from the MIG based on a psychological impairment. The applicant was seen by Dr. Deborah Cowman, psychologist, pursuant to a s. 44 insurance examination. Dr. Cowman noted that there were some features of adjustment disorder, but that these features did not warrant a diagnosis of the disorder. In her examination with Dr. Cowman, the applicant reported that she continues to work, drive, socialize and manage the household. She indicated that she has some sleep disturbances and memory issues. She is frustrated about her limitations with her dominant arm.
19I agree with the respondent that the applicant's medical evidence is insufficient to demonstrate that she suffers from an accident-related psychological impairment. The CNRs of Dr. Murti do not indicate that the applicant complained of accident-related psychological issues.
20The applicant submits that she suffers from accident-related chronic pain. She submits that the duration of pain has been longer than six months and that her pre-existing right shoulder impairment was exacerbated by the accident. This Tribunal has repeatedly found1 that evidence of functional limitation or impairment is essential when an applicant claims to be impaired by chronic pain.
21I do not find that the applicant has demonstrated that she has functional limitations as a result of pain from the accident. She continues to work and, as stated in her psychological assessment with Dr. Cowman, drive, socialize and manage the household. Her sleep disturbances do not rise to the level of functional impairment.
22The applicant also attended s. 44 insurance examinations with Dr. Melissa Hershberg and Dr. James Choi, general practitioners, to determine the applicability of the MIG. The assessors found that the applicant's medical evidence, specifically diagnostic imaging, indicated that the applicant had partial tears and strains, which are captured within the definition of "minor injury."
23For the reasons above, I find that the applicant's accident-related injuries and impairments are subject to the MIG. She has not demonstrated, on a balance of probabilities, that her accident-related injuries were caused by the accident or, in any case, are more than minor injuries, as defined by the Schedule.
Interest and Award
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
25As I have found that no benefits are owing, the applicant is not entitled to interest or an award.
ORDER
26The applicant is subject to the MIG.
27No benefits are owing.
28The application is dismissed.
Released: July 19, 2023
Anita Goela
Adjudicator