Sneha v. Intact Insurance Company, 2023 CanLII 67910

Citation: Sneha v Intact Insurance Company, 2023 ONLAT 21-005935/AABS

Licence Appeal Tribunal File Number: 21-005935/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:

Sneha Sneha Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Sneha Sneha, Applicant Alim Ramji, Counsel

For the Respondent: Intact Insurance Company Susana Cardoso, Counsel

HEARD: In Writing

OVERVIEW

1Sneha Sneha, the applicant, was involved in an automobile accident on December 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 Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided are as follows:

I. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 limit set out in s.18(1) of the Schedule?

If the applicant’s injuries are not predominantly minor, I must determine whether the following are reasonable and necessary:

II. $1,247.50 for physiotherapy services from Wanless Rehab proposed by Stephanie Behmer, chiropractor, in a treatment plan (OCF-18) dated August 19, 2019.

III. $3,520.00 for physiotherapy services from Total Care Management proposed by Dr. T. Dhotar, chiropractor, in a treatment plan (OCF-18) dated December 24, 2020.

IV. $2,572.37 for an orthopaedic assessment at Elite Specialist Group proposed by Dr. Richard Tutak, chiropractor, in a treatment plan (OCF-18) dated April 13, 2021.

V. $200.00 ($317.04 less $117.04 approved) for preparation of an OCF-3 disability certificate by Dr. Behmer dated March 13, 2019.

VI. Interest on any overdue payment of benefits.

VII. Costs, if the respondent’s conduct or course of conduct has been unreasonable, frivolous or vexatious or the respondent has acted in bad faith.

RESULT

3I find that the applicant has not demonstrated that her accident-related injuries and impairments justify removal from the MIG. She is not entitled to the benefits in dispute, and no interest or costs are payable.

ANALYSIS

Applicability of the MIG

4Under the Schedule, section 18(1) provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.”

5An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. The onus is on the insured to demonstrate on a balance of probabilities that their injuries fall outside of the MIG.

6The applicant submits that she suffers from chronic pain and should be removed from the MIG as chronic pain is not a ‘minor injury’ as defined in the Schedule.

7I find that the applicant has not met her burden of proving that her chronic pain was caused by the motor vehicle accident and therefore she remains within the MIG.

Did the applicant suffer physical impairments that are non-minor in nature?

8The applicant submits that she continues to suffer from ongoing pain and physical impairments, as a result of the accident, and requires ongoing treatment. She relies on the clinical notes and records of her visits to:

i. Mississauga Hospital; ii. Dr. Sehravat; iii. Dr. Iqbal; iv. Dr. Dhota (chiropractor); v. Dr. Behmer (chiropractor); and vi. Dr. Alexander (orthopaedic surgeon).

9Throughout these clinical notes and records are notations of minor injuries following the accident such as strains, sprains, and stiffness. A variety of treatments are proposed including physiotherapy, massage, chiropractic, heating and ice, structured exercises, among others. No fractures or more serious injuries not captured by the MIG are documented.

10The respondent submits that the applicant’s accident-related injuries are all captured by the definition of a “minor injury” in the MIG, and that the medical evidence provided supports this conclusion. The respondent points to the fact that only soft tissue injuries have been documented in the medical evidence, no fractures have been identified, and both disability certificates identified injuries that were expected to heal in a short period of time.

11Further, in 2021, the respondent argues that the applicant underwent two section 44 assessments. In the first assessment, Dr. Walters concluded that the injuries sustained by the applicant were within the definition of a minor injury. In the second assessment, Dr. Mohammed opined in his assessment report that the applicant had “sustained predominantly uncomplicated soft-tissue injuries that have already been treated with sufficient course of formal therapy, and no further treatment was deemed necessary”.

12Between these two assessments, the applicant underwent a section 25 assessment with Dr. Alexander, an orthopaedic surgeon, on May 17, 2021. In his assessment report, Dr. Alexander opined that the “prognosis for her neck, low back, both hips and left shoulder pain is guarded”. He recommended more therapy, and if still necessary after treatment, a referral to a chronic pain clinic.

13Of note, the respondent submits that although the applicant sought medical attention several times in the months following the 2018 accident, there was a lag of over a year where no medical attention was sought. Subsequently, the next time the applicant attended a doctor, in late 2020, the clinical notes and records of Dr. Iqbal indicate that the onset of the new medical issue was “one week prior”.

14I find this information persuasive to conclude that the original injuries suffered in the accident were minor, and unrelated to the symptoms arising suddenly more than two years after the 2018 accident. It is noteworthy that the applicant herself requested that the respondent close her accident benefits file in May of 2020, before the onset of the new symptoms.

15I am persuaded by the evidence of the s. 44 assessors. I find the s. 44 reports to be more consistent with the clinical notes and records of the other medical professionals the applicant attended in the months following the accident. I find that the medical evidence supports that the applicant sustained soft-tissue injuries as a result of the accident. Her accident-related physical injuries do not warrant removal from the MIG.

Does the applicant suffer from chronic pain as a result of the accident?

16The applicant suffered soft tissue injuries in the motor vehicle accident. In the months following the accident, the applicant visited medical professionals several times. After which, there was a lengthy period where no medical attention was sought, followed by a series of medical appointments in 2020 and 2021 for back, leg, shoulder, and neck pain of various degrees and types.

17On November 9, 2020, the clinical notes and records of Dr. Iqbal indicate that the onset of these symptoms was very recent, arising “one week” earlier. Dr. Iqbal’s diagnosis is back pain with bilateral sciatica. At the applicant’s next visit on January 5, 2021, the doctor’s notes and records indicate the onset of the pain to be only “two days” earlier and the diagnosis is low back and leg pain, sciatica, and scoliosis. There is no mention in the doctor’s clinical notes and records of the pain being defined as chronic. The onset of these symptoms occurs almost two years after the accident, raising causation issues since the applicant must demonstrate that their pain was as a result of the 2018 accident.

18The applicant submits that these symptoms are chronic in nature and stem from the motor vehicle accident. The applicant points to the definition of chronic pain established in T.S. v Aviva General Insurance of Canada, 2018 CanLII 83520 (ON LAT), that is, that chronic pain is ongoing recurrent pain lasting beyond 3 to 6 months which adversely affects an individual’s well being. I am not persuaded that there is alignment between the definition in T.S. v Aviva, and the applicant’s chronic pain, given the lengthy gap in time between the accident and the sudden onset of new symptoms in 2020. I give weight to the section 44 report of Dr. Walters, dated May 13, 2021, who opines that “a secondary condition has occurred in the years post-accident” and “there is an impairment in the lumbar spine...not causally associated with the subject motor vehicle accident”.

19Secondly, the applicant relies on 17-007825 v Aviva Insurance Company, 2018 CanLII 98282 (ON LAT), that adopted the American Medical Association Guides (“AMA Guides”) as a framework to evaluate a chronic pain condition in the absence of a diagnosis.

20The applicant claims to meet three of the six AMA Guides criteria, as follows:

• Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances.
• Withdrawal from social milieu, including work, recreation, or other social contracts.
• Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.

21The applicant submits that she was prescribed and used pain medication on a number of occasions since the accident, missed three months of work in late 2020, and continues to experience pain in daily tasks at work and at home.

22I find that there is insufficient evidence to prove the applicant meets any of the AMA criteria. There is no record of the applicant using prescription drugs beyond the recommended duration, nor withdrawal from social milieu. She returned to both school, work, and a volunteer role following the accident in 2018. Any functional impairments have not impeded the applicant from participating in the activities of daily living, other than for brief periods under a short-term disability certificate.

23Based on all of the evidence before me, and in consideration of both T.S. v Aviva and the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain. If the applicant experiences ongoing pain, I find there is insufficient evidence to conclude that the cause is the motor vehicle accident of December 27, 2018.

24Therefore, the MIG limits apply and the applicant is not entitled to the benefits in dispute.

25Lastly, regarding the applicant’s submission that there remains $82.96 to be paid for the preparation of the OCF-3 Disability Certificate dated March 13, 2019, no supporting evidence was provided to establish that funds remain under the MIG. The Case Conference Order indicates that the MIG limits were exhausted. Having determined that the MIG applies, the applicant is only entitled to payments up to the $3,500 limit.

Is the applicant owed interest on the benefits in dispute?

26As there are no overdue benefits, no interest applies.

Are costs owed due to unreasonable behaviour on the part of the respondent?

27Pursuant to Rule 19, the applicant has not demonstrated how the respondent’s conduct was unreasonable, frivolous, vexatious or in bad faith. Therefore, no costs are owing.

ORDER

28The applicant has not met her burden to demonstrate that treatment beyond the MIG is warranted. On this basis, she is not entitled to the disputed treatment plans or assessment fee. She is not entitled to interest nor costs.

29The application is dismissed.