Citation: Carter v. Intact Insurance Company, 2023 ONLAT 21-010120/AABS
Licence Appeal Tribunal File Number: 21-010120/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:
Marcus Carter
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Ryan Jeffries, Paralegal
For the Respondent: Revathi Moturi, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Marcus Carter, the Applicant, was involved in an automobile accident on August 22, 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 Intact 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:
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?
Is the Applicant entitled to medical benefit in the amount of $2,260.00 for a psychological assessment proposed by Medex Assessments Inc. (“Medex”) in a treatment plan dated November 21, 2019?
Is the Applicant entitled to medical benefit in the amount of $2,260.00 for a driver’s reintegration evaluation proposed by Medex in a treatment plan dated November 21, 2019?
Is the Applicant entitled to a medical benefit in the amount of $1,298.10 for physiotherapy services proposed by Medex in a treatment plan dated February 25, 2020?
Is the Applicant entitled to a medical benefit in the amount of $70.00 ($1,298.10 less $1,128.10 approved) for physiotherapy services proposed by Medex in a treatment plan dated January 27, 2020?
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.
ANALYSIS
The Minor Injury Guideline
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.”
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the Applicant.
8The Applicant’s submissions are silent on which of the three avenues (pre-existing condition, a psychological impairment, or chronic pain) that the Applicant relies upon to demonstrate that he is entitled to treatment beyond the MIG funding limits. The Applicant provides a summary of the medical evidence and submits that he suffers from neck pain, shoulder pain, and headaches from the accident. An Applicant cannot simply submit evidence and leave it up to the Tribunal to connect the dots and make his case. Notwithstanding the lack of guidance in the Applicant’s submissions, I find that upon a review of the evidence before me that the Applicant has not met the burden of proving that his accident-related impairments require treatment beyond the MIG.
Pre-Existing Conditions
9There is some evidence that the Applicant had pre-existing left-shoulder tendinosis in 2017. I agree with Adjudicator Johal’s reasoning in B.W. v. Royal Sun Alliance Insurance, 2017 CanLII 19203 (ON LAT) at para. 25:
The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The Applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG. The Applicant did not point me to any evidence that demonstrates this.
10I agree that the presence of a pre-existing condition alone is not sufficient to remove an applicant from the MIG. I find that the Applicant has not pointed me to evidence to support that he has a pre-existing injury that would prevent maximal recovery under the MIG.
Injuries Sustained
11Clinical notes and records from North Park Medical (a walk-in clinic) show that the Applicant attended on September 5, 2019 and reported pain in his right shoulder. Full range of motion was noted, with the exception of mildly reduced internal rotation. She diagnosed right shoulder strain. An ultrasound of his shoulders on September 7, 2019 revealed mild bursitis on the right and a partial thickness tear on the left. The doctor at the walk-in clinic reviewed the results and recommended ibuprofen. The Applicant followed up in October 2019 for right shoulder pain, the doctor noted that the examination was normal, and suggested acetaminophen. Further visits in December 2019 and January 2020 were for unrelated reasons.
12It appears that the Applicant began attending a different walk-in clinic, Bedford Park Medical, in June 2020 when he reported bilateral shoulder pain, and had “noticed some headaches”. He was observed to have good ranges of motion with tenderness at the extremes and was referred for imaging. An x-ray and ultrasound report dated June 16, 2020 of the left shoulder was largely unremarkable and revealed no evidence of a tear or tendinopathy. The imaging of his neck was unremarkable. A right shoulder x-ray and ultrasound dated July 8, 2020 was normal.
13The Applicant saw Dr. Prutis for neck and right shoulder pain. She reviewed the imaging and determined that he sustained myofascial cervical strain and suspected right rotator cuff tendinosis.
14An MRI of the right shoulder dated September 15, 2021 revealed a cyst but no evidence of a tear. Dr. Prutis noted in her October 19, 2021 report that the Applicant was suffering from chronic neck pain, chronic low back pain, and chronic right shoulder pain as a result of the accident, and arranged further imaging. An MRI of the right shoulder dated December 9, 2021 revealed no tear, mild tendinopathy, the cyst that had significantly decreased in size, and a suspected small undisplaced SLAP lesion. An MRI of his cervical spine revealed mild degenerative changes. After reviewing the imaging, Dr. Prutis referred the Applicant for an orthopaedic consult.
15The Applicant underwent an orthopedic consultation with Dr. C. Lopez on February 8, 2022. He noted that the Applicant was occasionally apprehensive with shoulder level and overhead activities. He did not describe any gross weakness, but discomfort. On examination there was no wasting observed, and full active and passive ranges of motion. Dr. Lopez suggested physical therapy and to follow up in three months if he was still symptomatic.
16With the exception of the chronic pain diagnosis, which I address further below, the Applicant’s injuries fall squarely within the definition of a minor injury. While the imaging reports do reveal a partial tear, a partial tear is captured within the definition of “minor injury”.
Chronic Pain
17Chronic pain conditions are not included in the minor injury definition. In order to establish that he has a chronic pain condition, the Applicant must demonstrate that his pain causes a functional impairment which adversely affects his well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
18The evidence does not support that the Applicant experienced a functional impairment. The Applicant was 25 years old at the time of the accident and lived with his parents. He was employed as a safety advisor at a car dealership prior to the accident. He took a few days off and then returned to work.
19On October 30, 2019, the Applicant completed an activities of daily living checklist. The checklist indicates that, post-accident the Applicant had no change to his ability to complete functional tasks, personal care, household tasks, outdoor tasks, community access, or cognitive functions.
20The Applicant was assessed by Dr. A. Belfon, general practitioner, report dated December 22, 2020. The Applicant reported that he wasn’t permitted to lift anything heavy at work for approximately two months post-accident. He subsequently began working full time as a delivery driver for Amazon in November 2020. The Applicant reported independence with his personal care and housekeeping since the accident. Dr. Belfon noted that there were no objective impairments on examination and diagnosed sprain/strain injury to the right shoulder.
21The evidence does not support that the Applicant suffers from chronic pain with a functional impairment. According to his self-reports, he returned to work, and was independent with all of his activities of daily living. Based on all of the evidence, the Applicant has not shown that his pain meets the level of impairment that rises to a level to remove him from the MIG.
Psychological Impairment
22An insured person may be removed from the MIG if they sustained a psychological impairment because of the accident, because the definition of “minor injury” in the Schedule does not include psychological impairments. The Applicant made no submissions regarding any psychological impairment that would remove him from the MIG. On that basis alone, I find that the Applicant has not met his burden to prove that he sustained a psychological impairment that would remove him from the MIG.
23For the sake of completeness, I have reviewed the evidence and further conclude that the evidence does not support that the Applicant sustained a psychological impairment that would remove him from the MIG.
24There is no evidence that the Applicant reported any psychological concerns to any of the doctors at the walk-in clinics he visited post-accident. According to the treatment plans in dispute, the Applicant reported driver’s anxiety. I find that wholly inconsistent with the fact that the Applicant left his job as a safety advisor to become a full-time delivery driver post-accident. The Applicant underwent a psychological insurer’s examination with Dr. Bacchiochi, dated May 11, 2021. He reported some dysphoria which he attributed to a relationship issue with his girlfriend and the COVID-19 lockdowns. Dr. Bacchiochi determined that the Applicant did not meet the diagnostic criteria for a psychological diagnosis.
25I find that the Applicant has not met his burden to prove that he sustained a psychological impairment as a result of the accident.
26The treatment and assessment plans in dispute all 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.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
CONCLUSION AND ORDER
28The Applicant sustained a minor injury as a result of the accident.
29The 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.
30No payments are overdue therefore no interest is payable.
Released: August 2, 2023
Kate Grieves
Adjudicator