Licence Appeal Tribunal File Number: 21-001956/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:
Pamela Lorejo-Alforque
Applicant
and
Travelers Insurance
The Dominion of Canada General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Michael A. Yermus, Counsel
For the Respondent:
Sara Baum, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Pamela Lorejo-Alforque, the Applicant, was involved in an automobile accident on October 12, 2019, 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 Travelers Insurance The Dominion of Canada General Insurance Company, 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:
i. Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
ii. Is the Applicant entitled to medical benefits for chiropractic services proposed by Downsview Healthcare as follows:
a. $220.00 ($1,242.56 less $1,022.56) in a treatment plan/OCF-18 (“plan”) January 20, 2020;
b. $1,910.08 in a plan dated October 16, 2019;
c. $2,076.71 in a plan dated February 13, 2020;
d. $3,570.16 in a plan submitted on October 16, 2019;
e. $1,517.60 in a plan dated November 11, 2020;
f. $1,565.60 in a plan dated February 13, 2021;
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 treatment and assessment plans or expenses because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.
5No payments are overdue therefore no interest is payable.
BACKGROUND
6The Applicant was the seat-belted passenger in a van driven by her husband when their vehicle was rear-ended while slowing for traffic. The airbags did not deploy, and the Applicant did not lose consciousness. No emergency services attended the scene. The Applicant’s husband drove to a collision reporting centre and then home.
ANALYSIS
The Minor Injury Guideline
7The 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.” Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
8Pursuant to subsection 18(2), the funding limit does not apply if the Applicant provides compelling evidence from a health practitioner, documented before the accident, that the Applicant has a pre-existing medical condition will preclude her recovery if subject to the MIG.
9An insured may also be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the Applicant.
10The Applicant submits that she suffered physical injuries such as a concussion and 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 she has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. I agree with the Respondent.
Pre-Existing Condition
11The Applicant claims that she suffered pre-existing upper back pain and infers that it precludes her from recovering within the MIG and the $3,500.00 funding limit for treatment. The Respondent submits that there is no evidence that her pre-existing condition would preclude her recovery.
12The Applicant’s pre-accident clinical notes and records fail to demonstrate any concern that the Applicant’s pre-existing medical condition would preclude her recovery. The clinical notes and records of the family doctor, Dr. Gerstein, from one year prior to the accident contain one notation in August 2019 of upper back pain for one month after standing and leaning forward a lot at work. Post-accident, the Applicant saw a doctor at a walk-in clinic on October 12, 2019 and reported some pain in the trapezius area. She was diagnosed with whiplash and advised to take Tylenol and attend physiotherapy. She next saw her family doctor, Dr. Gerstein, on December 3, 2019. There is no indication that Dr. Gerstein was concerned about a prolonged recovery for the Applicant. Further, the Applicant repeatedly denied any prior musculoskeletal complaints to the IE assessors.
13Accordingly, I am unable to conclude that the Applicant had a pre-existing condition that would preclude her recovery from her accident-related injuries if subject to the MIG and $3,500.00 funding limit.
Concussion
14I find that the Applicant has not met her burden to prove that she sustained a concussion as a result of the accident.
15The only diagnosis of concussion was made by Dr. Pivtoran, chiropractor, in the initial disability certificate. It is beyond the scope of his practice to make such a diagnosis and therefore I give it no weight. As noted above, the Applicant did not seek immediate medical attention. At the walk-in clinic on October 14, 2019 the doctor noted “possible concussion’. No referrals were made for further investigation, she was discharged and told to take Tylenol. To Dr. Gerstein in December 2019, she reported that she struck her head but denied any loss consciousness, and no ongoing headaches or nausea. The Applicant has not met her burden to prove that she sustained a concussion as a result of the accident.
Chronic Pain
16I find that the Applicant has not met her burden to prove that she suffers from a chronic pain condition.
17None of the Applicant’s doctors have diagnosed chronic pain. Further, the Applicant has not demonstrated a functional impairment as a result of ongoing pain, nor does she meet the criteria for a chronic pain condition as outlined by the American Medical Association. As a result, I conclude that she does not suffer from accident-related chronic pain.
18The clinical notes and records of the family doctor in 2020 largely relate to the Applicant’s pregnancy, and she gave birth in October 2020. There were no referrals to any specialists for any accident-related complaints.
19Both of the IE assessors, Dr. Belfon, general physician, and Dr. Hosseini, physiatrist, diagnosed the Applicant with sprain/strain injuries to her spine, consistent with the diagnoses from the walk-in clinic and the family doctor. Imaging of her cervical spine dated February 13, 2020 revealed minimal degenerative changes.
20Dr. Belfon noted in his report dated January 31, 2020 that the Applicant was a full-time homemaker prior to the accident, and mother to four children (aged 10, 8, 5, and 2). She continued to perform her pre-accident housekeeping tasks, such as cooking, cleaning, and childcare, albeit with pacing as she had pain in her neck and back if she was standing for too long. She remained independent with her personal care.
21Dr. Hosseini’s report dated December 16, 2020 also indicates that the Applicant was independent with her personal care and had resumed her housekeeping and caregiving tasks, but needed assistance with outdoor maintenance. She had not resumed participation in some of her social or recreational activities, such as dancing and Zumba classes. She had resumed driving, but less frequently. She was staying home most of the time, due to the COVID-19 restrictions.
22Given the Applicant’s described level of function, I am not satisfied that her pain caused a functional impairment. Although she required assistance with outdoor chores and engaged in some pacing techniques for tasks that required prolonged standing, this does not rise to a level to find that the Applicant suffered from an ongoing functional impairment due to pain.
23Further, I find that the Applicant has not met the criteria for a chronic pain condition, as outlined in the the AMA Guides. The Applicant has not provided any prescription summaries, nor any evidence that she is dependent on prescription drugs or other substances. She is not excessively dependent on healthcare providers, spouse, or family and exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. The Applicant continued to perform her pre-accident caregiving and housekeeping tasks, and there was no compelling evidence of any psychological injury.
24Considering the totality of the evidence with respect to the Applicant’s function, I find that she does not suffer from a chronic pain condition that would constitute and injury that is not included in the minor injury definition of the Schedule.
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 for a minor injury.
26Likewise, interest is only payable on overdue payment of benefits pursuant to s. 51 of the Schedule. Having found that the Applicant is not entitled to the disputed treatment plans, no payments are overdue, and thus no interest is payable.
CONCLUSION
27I find that the Applicant sustained a minor injury as defined in s. 3 of the Schedule.
28She is not entitled to the remaining treatment and assessment plans in dispute because they proposed goods and services that fall outside the MIG and the $3,500.00 funding limit.
29No interest is payable as there are no benefits owing.
30The Application is dismissed.
Released: August 2, 2023
__________________________
Kate Grieves
Adjudicator