Johnston v. Novex Insurance Company, 2023 CanLII 72648
Licence Appeal Tribunal File Number: 21-004687/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:
Jaden Johnston
Applicant
and
Novex Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Yong
APPEARANCES:
For the Applicant: Hermia Leung, Paralegal
For the Respondent: Robbie Brar, Counsel
HEARD: In Writing
OVERVIEW
1Jaden Johnston, the applicant, was involved in an automobile accident on March 3, 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 the respondent, Novex Insurance Company, 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 treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to the medical benefits proposed by Total Care Management (Peel), as follows:
a. $217.10 ($1,370.00 less $1,152.81 approved) for physiotherapy services, in a treatment plan, submitted on July 3, 2019, denied on July 10, 2019; and
b. $1,760.00 for physiotherapy services, in a plan, submitted on December 14, 2019, denied on December 24, 2019?
iii. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“plan”) submitted on February 25, 2020, denied on March 9, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met her burden of proof on the balance of probabilities that she suffered injuries beyond the treating limit of $3,500.00 in the MIG.
4As the applicant is found to be within the MIG, and the monetary limit of MIG has been exhausted, an analysis of the treatment plans in dispute are not required.
ANALYSIS
Minor Injury Guideline (MIG)
5Section 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.”
6An 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
The applicant has not sustained injuries which would take her outside the treatment limits of the MIG
7I find that the applicant has failed to demonstrate that she suffered injuries as a result of the accident that are not predominantly minor as defined by the Schedule. Therefore, she remains within the MIG.
8The applicant submits that, due to the respondent’s continued denials, she has not received the required ongoing treatment to enable recovery from her injuries sustained from the accident. The applicant submits that the clinic notes and records (hereafter “CNR”) from both her previous and current family physicians reported that she has sustained injuries that are outside the definition of the MIG. She submits that her chronic pain and psychological conditions show that she is unable to recover from the confines of the treatment limits of the MIG.
9The respondent relies on its s. 44 musculoskeletal assessment report (prepared for the purposes of an NEB assessment) by Dr. James Steward dated August 2, 2019, which concluded that the applicant suffers from myofascial type discomfort “which should continue to fully resolve with her continued MIG based treatment.” The respondent also relies on its s. 44 occupational therapy assessment dated August 2, 2019 by Dr. Andrew Phillips where he found that there is no ongoing accident-related impairments causing disability and the result of the examination was essentially normal and recommended ongoing rehabilitation within the MIG. Lastly, the respondent submits that the applicant does not suffer any psychological impairments and relies on the finding of its s. 44 psychological MIG assessment report by Dr. Douglas Saunders dated December 15, 2020.
10Based on the applicant’s evidence tendered, I am not persuaded that the applicant suffers from any injuries that are not minor. The Credit Valley Hospital records, on the day of the accident, noted that the x-rays of both knees showed no fractures or dislocations. The applicant was discharged with prescriptions for Tylenol or Advil to be taken where required and to follow up with her family physician.
11The CNRs from both previous and current family physicians, Dr. Andrew Wozniak and Dr. Richa Sharma, respectively, both had only observed and diagnosed the applicant with lumbar spine sprain or strain. I find the following particular CNR entries to be persuasive:
i. On April 8, 2019, the applicant’s first visit post-accident, Dr. Wozniak noted that the applicant reported the accident and made complaints about the accident-related injuries. He reported that the applicant “looks well, undistressed. (sic) She is fully mobile. Her posture is completely normal and straight. Examination of the cervical spine and thoracic spine appears to be normal. Examination of the lower back revealed small area tenderness on the left side spine with slight increased musculoskeletal tone but mobility is well preserved.”
ii. Dr Wozniak then diagnosed the applicant with mild musculoskeletal injury without residual physical impairments. He further noted that he explained to the applicant that “this is a rather short term [musculoskeletal] injury strain type. We will book full diagnostic imaging in addition to the x-rays that were done shortly after the accident. She is to attend physiotherapy and use Tylenol or Advil [on an as needed basis]. Again, I told her those injuries usually resolve within six to eight weeks maximum. I advised her to do self stretching exercise as well… The findings diagnosis and symptoms are discussed and explained.”
iii. Dr. Wozniak provided referrals for blood tests, ultrasound of the bladder and kidneys. I find that these referrals were made in response to the applicant’s other medical complaints that were unrelated to the accident. In the lengthy ultrasound referral letter written by Dr. Wozniak, on the same day, he noted that, while he is investigating the other medical concerns, the applicant’s “general health is excellent”. I find that Dr. Wozniak was more focused on investigating the other medical complaints rather than the injuries sustained as a result of the accident. Therefore, this demonstrates that the accident-related injuries were more likely minor injuries.
iv. Separately, Dr. Wozniak’s CNR dated March 15, 2019 noted that the applicant was observed walking without difficulties.
v. In relation to the psychological conditions or symptoms, there was only one entry by Dr. Sharma on November 26, 2020 where he noted that the applicant reported nightmares and sleep difficulties. However, there was no suggestion that it was related to the accident. I note that this CNR is dated more than one year after the accident. In the applicant’s subsequent visits with Dr. Sharma on January 14, February 18 and June 29, 2021, there were no further reports of any psychological symptoms or conditions. Dr. Sharma also noted, on June 29, 2021, the applicant’s MRI of the knee was “within normal limits”.
vi. On September 8, 2020, Dr. Sharma diagnosed the applicant with lumbar strain or sprain as a result of the accident and recommended physiotherapy, heat pads and NSAIDs and referred the applicant to undergo an x-ray. In a subsequent visit on September 24, 2020, Dr. Sharma noted that the applicant queried whether her ultrasound was reported correctly and he reassured the applicant that the ultrasound of the knee was checked properly.
vii. On June 29, 2021, Dr. Sharma’s CNR revealed that the applicant reported that she stopped physiotherapy as it was not helping her condition despite experiencing ongoing knee pain with swelling around her knee joint and lower back ache. Dr. Sharma noted that the applicant was “well appearing, NAD, comfortable”. I note that the applicant only submitted 14 of the 17 pages of Dr. Sharma’s CNR and hence I am unable to determine Dr. Sharma’s diagnoses and recommendations for the reported medical issues on June 29, 2021 and any subsequent visits. I can only conclude from the applicant’s report that she had stopped physiotherapy as she did not find it helpful.
12I am not satisfied that the applicant has chronic pain, a pre-existing condition or psychological impairment that would take her outside of the limits of the MIG. The applicant did not make any specific submissions nor any reply submissions on this point.
13As stated above, the applicant did not report any psychological symptoms to her family physician until over a year after the accident. I find the respondent’s s. 44 psychological report by Dr. Douglas Saunders dated December 15, 2020 and his addendum report dated March 14, 2022 to be persuasive and in line with the rest of the medical evidence. I am not persuaded that the applicant suffers from any psychological impairment as a result of the accident.
14I note that the CNRs do not reveal that the applicant suffers from chronic pain as the majority of her visits to the family physician were about an unrelated medical condition.
15For the above reasons, I find that the applicant has failed to demonstrate that she sustained an injury that is not defined as minor by the Schedule. As a result, she remains within the MIG and its $3,500.00 limit on treatment.
The applicant is not entitled to the treatment and assessment plans in the OCF-18s for physiotherapy services and psychological assessment
16Based on the above analysis, I have determined that the applicant sustained minor injuries that are treatable within the MIG. The respondent confirmed in its submissions, with the support of the denial letter dated July 10, 2019, the treatment limits of the MIG have been exhausted. As such, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required because the OCF-18s propose treatment outside the MIG funding limit.
17As no benefits are payable, it follows that no benefits are overdue. Therefore, I find that interest does not apply pursuant to s. 51 of the Schedule.
ORDER
18I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG.
19The applicant is not entitled to any treatment plans for physiotherapy services and psychological assessment, as the MIG limit have been exhausted.
20As there are no medical benefits owed, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.
21The application is dismissed.
Released: August 11, 2023
Lisa Yong
Adjudicator