Citation: S.T. v. The Co-operators General Insurance Company, 2023 ONLAT 20-004904/AABS

Licence Appeal Tribunal File Number: 20-004904/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:

S.T.

(A Minor by her Litigation Guardian, S.F.)

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Sherilyn Pickering, Counsel

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By way of written submissions

OVERVIEW

1S.T., the minor Applicant, was involved in an automobile accident on May 31, 2017, 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 Co-Operators General Insurance Company, the Respondent, and through her litigation guardian, S.F., applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute to be decided in the hearing are:

i. Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the MIG and the $3,500.00 funding limit on treatment?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,983.35 for a psychological assessment dated March 27, 2018?

iii. Is the Applicant entitled to interest on overdue payment of benefits?

PRELIMINARY ISSUE: confidentiality order – initializing the decision

3With the consent of the parties, the Tribunal orders that the Applicant’s name be initialized in this decision.

4The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586. The Tribunal Adjudicative Records Act (“TARA”) requires that the Tribunal make its adjudicative records available to the public. Public access to adjudicative records is also protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, therefore restrictions on access are exceptional.

5Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the tribunal determines that:

i. matters involving public security may be disclosed; or

ii. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

2The test established by the Supreme Court of Canada for ordering publication bans provides further guidance when considering whether to override the principle that tribunal proceedings should be open to the public: Toronto Star at paras. 89-93; R. v. Mentuck, 2001 SCC 76 at para. 32. The test was more recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”). In Sherman Estate, the Court outlined a three-part test. To limit the open court presumption, it must be established that:

i. Court openness poses a serious risk to an important public interest;

ii. The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

iii. As a matter of proportionality, the benefits of the order outweigh its negative effects.

6While I am cautious to the fundamental importance of the open court rule, I find that there is an important public interest to protecting the Applicant’s private information. This decision involves a minor Applicant and contains personal and sensitive information including domestic violence and alleged sexual abuse of the Applicant by a family member. I further find that reducing the name of the Applicant and her litigation guardian to initials only on the Tribunal’s decision published in the public domain is the least restrictive way of protecting the identity of the minor Applicant and preventing the disclosure of the sensitive information. The benefits of initializing the decision to protect the Applicant’s identity outweighs the public interest in the openness of this proceeding. I order that the name of the Applicant and her litigation guardian be initialized in this decision.

RESULT

7The Applicant sustained a minor injury as a result of the accident. The Applicant is not entitled to medical benefits outside of the MIG and the $3,500.00 funding limit on treatment.

8Given that no benefits are owed, no interest is payable.

9The Application is dismissed.

BACKGROUND

10The Applicant was seven years old at the time of the accident. She was a passenger in a van operated by her mother, when they were rear ended when traffic suddenly slowed on the highway.

11She was taken to hospital with complaints of neck pain. X-rays of her neck and back taken the same day were negative for fractures.

The Minor Injury Guideline

12The 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.”

13Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An Applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.

14It is the Applicant’s burdento establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities, see: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).

15The Applicant submits that she suffers from 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 the Applicant has not met the burden of proving that the accident caused injuries that are not included in the definition of a minor injury as outlined in s. 3 of the Schedule. I agree with the Respondent.

Chronic Pain

16The Applicant submits that she suffers from chronic pain or chronic pain syndrome, and as such her injuries fall outside of the definition of a minor injury. I find that the Applicant has not established that she sustained physical impairments that fall outside of the definition of a minor injury.

17Chronic pain conditions are not included in the minor injury definition. In order to establish that she has a chronic pain condition, the Applicant must demonstrate that her pain causes a functional impairment which adversely affects her well-being or that she meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

18The Applicant submits that she had ongoing complaints of headaches, neck pain and back pain, and occasional pain in her legs and stomach, and has missed school on numerous occasions as a result.

19The medical records do not support that the Applicant suffered from chronic pain as a result of the accident. The Applicant saw her family physician, Dr. Howard, for the first time post-accident in December 2017 for an unrelated issue. She was assessed at hospital and diagnosed with acute early appendicitis in May 2018 and treated with antibiotics. The first report of the MVA to Dr. Howard post-accident occurred in December 2018, when S.F. reported that the Applicant had back pain since the MVA in May 2017, that it was “worse at certain times and other times she is completely fine”. Dr. Howard noted that the Applicant looked well, was quite active in the office, and range of motion was normal in all planes. There are no further reports of back pain, nor are there any reports of neck pain, or leg pain in any of the medical records provided. Approximately two years post-accident, starting in April 2019, the Applicant was seen for abdominal cramping, with a diagnosis of probable IBS. Investigations in the summer of 2019 for abdominal pain were largely unremarkable. Records from November 2020 again indicate findings in keeping with early appendicitis. In September 2020 there is a notation of a two-week history of headaches and dizziness briefly after eating, which then resolves.

20It was not until Dr. Kaminska’s psychological assessment in February 2021, almost four years post-accident, that S.F. reported that the Applicant missed three months of school in the year after the accident mostly due to stomach and back pain, and that she complained of sensitivity to bright light, and getting headaches in school. The Applicant described waking up with a sore back and neck, sometimes pain in her legs and stomach, and headaches twice a week. I find it hard to accept that a young child was complaining of constant pain and allegedly missing months of school without any visits to her family physician or a paediatrician until over a year and a half post-accident. There is no mention of headaches, neck pain, or leg pain due to the accident in the family doctor’s records and the abdominal pain was determined to be early appendicitis in 2018 and 2020.

21The medical evidence does not support a finding that the Applicant suffers from continuous pain as a result of the accident, of such severity that it causes distress accompanied by a functional impairment or disability. While S.F. alleges that the Applicant missed three months of school in the year after the accident, she provided no corroborating evidence, such as school records.

22I further find that the Applicant does not meet the criteria for chronic pain syndrome in the 6th Edition of the AMA Guides. These criteria are not binding; however, the Tribunal has found the AMA Guides provide a useful and persuasive analytical tool for assessing functional capacity as it relates to chronic pain. The AMA Guides require that at least three of the following six criteria are met in order to qualify for a diagnosis of chronic pain syndrome.

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances: the Applicant does not use prescription medication for pain;

(ii) Excessive dependence on health care providers or family: there is no evidence of such;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain: there is no evidence of such;

(iv) Withdrawal from social milieu: S.F. reports that the Applicant missed school for three months, is disconnected from those around her and fights with her family. This is not corroborated by the medical evidence, nor were any school records provided. There are no reports of these issues to the family doctor.

(v) Failure to restore pre-injury function: there is no evidence to support S.F.’s assertion that the Applicant missed months of school post-accident. Her grades were also reportedly good post-accident, until recently.

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors: Dr. Kaminska provided a preliminary diagnosis of Specific Phobia, situational type related to traffic, and Somatic Symptom Disorder with predominant pain. This is the only criteria that the Applicant meets and is insufficient for a finding that she suffers from, or even likely suffers from, chronic pain.

23I am not persuaded that, based on the limited medical evidence beyond the report of Dr. Kaminska, that the Applicant satisfied three of the foregoing criteria. The medical evidence does not support that the Applicant sustained any physical impairment or chronic pain condition as a result of the accident that would remove her from the MIG.

Psychological Impairment

Psychological impairments that are the result of an accident may warrant removal from the MIG since the “minor injury” definition does not include such injuries.

24The parties disagree about the cause of the Applicant’s psychological injuries. The Applicant relies on the February 2021 report of Dr. Kaminska and submits that she suffers from Specific Phobia, situational type related to traffic, Somatic Symptom Disorder with predominant pain, and exacerbation of her pre-existing anxiety as a result of the accident.

25The Respondent submits that the Applicant had a psychologically impactful upbringing causing psychological trauma unrelated to the accident.

26The leading case on causation is set out in the Divisional Court’s decision in Sabadash v. State Farm (“Sabadash”). It establishes that the test for determining causation in accident benefits is the “but for” test. The Applicant bears the onus to prove that “but for” the accident, she would not have suffered an impairment. The court held that an accident need not be the sole cause of the impairment but must be a “necessary cause”.

27Based on the evidence, I find that the accident was not a necessary cause of the Applicant’s impairments.

28I find the psychological assessment report of Dr. Kaminska, dated February 2021, to be unpersuasive evidence demonstrating that the Applicant sustained a psychological impairment as a result of the accident. S.F. reported that the Applicant began experiencing issues with separation anxiety and nightmares following a March 2016 incident that led to the Applicant being separated from her mother for five months, and that her attendance at school was affected. S.F. reported that after the 2017 accident, her separation anxiety and nightmares had increased, and the Applicant was anxious in cars, and had sudden mood changes. However, S.F. told Dr. Kaminska that some of the changes to her mood were attributed to the onset of menstruation. Dr. Kaminska provided a preliminary diagnosis of Specific Phobia, situational type related to traffic, and Somatic Symptom Disorder with predominant pain.

29Overall, I find Dr. Kaminka’s report inconsistent with the evidence provided.

30The family doctor’s notes indicate that prior to the accident, in October 2016, the Appellant was assessed for possible sexual abuse by her father. The first post-accident mention of any mental health concerns to the family doctor was in April 2019, when the Applicant was seen for abdominal cramping, and Dr. Howard suspected probable IBS “which is starting at an earlier age but she does have some anxiety, unfortunately, with her family situation”. In October 2019 the Applicant was evaluated again for abuse. CAS was contacted and the police were involved. Since that time, the Applicant’s visits with her father were supervised. In April 2020 S.F. spoke to Dr. Howard about the Applicant’s sleeping issues, and he suggested Melatonin. He noted that Kinark (which appears to be an agency that provides mental health services) was involved. In September 2020 S.F. indicated that she wanted to discuss the Applicant’s abdominal pain and mental health but did not feel it was a crisis. She wanted the Applicant to see a psychiatrist and Dr. Howard encouraged her to book another appointment for a full mental health visit. Dr. Howard noted that the Applicant was looking well, cheerful, and acting appropriately for her age. It’s unclear if the Applicant did follow up, as no further records were provided beyond October 2020.

31Both Dr. Kaminska and the family doctor mention that the Applicant has been involved with Kinark however these records were not provided. Thus, the timing and nature of their involvement is unclear.

32According to a prescription summary, it appears that more than five years post-accident the Applicant was prescribed anti-psychotic medications commencing in July 2021, and anti-depressants in June 2022, prescribed by a different doctor, Dr. Pappu. None of Dr. Pappu’s records were provided. S.F. testified that the Applicant was hospitalized for a depressive episode in October 2021. These records were also not provided.

33No school records were provided either to Dr. Kaminska or as evidence for this hearing, despite S.F.’s reports that the Applicant missed months of school following the accident.

34The Respondent submits, and I agree, that there are inconsistencies between the information provided by S.F. in her affidavit and her reports to Dr. Kaminska, than was described to Dr. Howard. Dr. Howard’s records do not contain any reports of nightmares, anxiety around to travelling in a car, or having missed months of school. Thus, I find Dr. Kaminska’s opinion less reliable. I find then the Applicant has fallen short of her burden to prove that the accident was a necessary cause of any psychological impairment.

35The Applicant has failed to meet her burden of proof, demonstrating that she sustained a psychological impairment as a result of the accident hat warrants removal from the MIG.

36Having 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 because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit on treatment. Given that no benefits are owed or payments outstanding, no interest is payable.

CONCLUSION AND ORDER

37The Applicant sustained a minor injury as a result of the accident.

38The Applicant is not entitled to the treatment plans outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

39Given there are no benefits owed or payments outstanding no interest is payable.

40The Application is dismissed.