Licence Appeal Tribunal File Number: 21-001766/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:
Agnes Lubega
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Khelan Soogrim, Counsel
HEARD: In Writing
OVERVIEW
1Agnes Lubega, the applicant, was involved in an automobile accident on March 16, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Belair, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
2The motor vehicle accident occurred more than seven years ago. This file has a lengthy procedural history with several delays related to adjournments and non-attendance at adjudicative events prior to the hearing. A case conference was held on September 10, 2021. A motion hearing was held on May 10, 2022 where the applicant did not attend, and the Notice of Motion was dismissed.
3Further, the applicant's submissions for this hearing were received more than two weeks past the agreed-upon deadline of November 30, 2022.
procedural ISSUES
Late Submissions
4The respondent argues that the late submissions of the applicant prejudiced its own submissions by limiting its time for review and response. In the context of submissions from the applicant of only three pages in length (exclusive of evidence), I am satisfied that the respondent's submissions are fulsome, address the applicant's position with respect to the issues in dispute, and no prejudice has been suffered.
ISSUES
5The 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 (MIG)?
ii. Is the applicant entitled to $4,240.82 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 submitted on February 11, 2019?
iii. Is the applicant entitled to $3,283.67 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 submitted on April 5, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
7Having found that the applicant sustained a minor injury as a result of the accident, she is not entitled to the disputed OCF-18s because they propose services which surpass the MIG.
8As no benefits are payable, no interest is owed pursuant to s. 51 of the Schedule.
ANALYSIS
Applicability of the MIG
9The MIG establishes a framework available to injured persons who sustain a minor injury as a result of a motor vehicle accident.
10Section 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."
11An 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.
12In all cases, it is the applicant's burden to establish entitlement to the coverage beyond the $3,500.00 cap on a balance of probabilities.
13The applicant submits she sustained injuries because of the accident that left her with chronic pain and psychological symptoms, and for these reasons she should be removed from the MIG. The respondent submits that the applicant failed to prove that she suffered either chronic pain or psychological impairment as a result of the accident that warrants removal from the MIG. I agree with the respondent.
Did the applicant suffer physical injuries that are not minor in nature?
14I find that the applicant's injuries fall within the definition of minor under s. 3 of the Schedule.
15The applicant submits that her injuries are not minor, since more than five years after the accident she still experiences pain in her neck and back, with accompanying issues of headaches and anxiety. She refers to Dr. Tong's OCF-3 completed on December 16, 2021, which notes persistent neck and back pain, an inability to return to full-time work, and a complete inability to carry on a normal life including the housekeeping she normally performed prior to the accident. She further submits that although she returned to full-time studies and part-time work following the accident, over time, she worked fewer hours "due to these lingering and documented injuries".
16The respondent submits that the applicant's injuries are minor and treatable within the MIG limits, as determined by two s. 44 reports from Dr. Silver, one in 2018 and a follow-up in 2022. Dr. Silver's credentials are outlined in his reports, which indicate that he is internationally-certified in Impairment and Disability Ratings. In 2018, he completed an in-person musculoskeletal assessment and diagnosed the applicant with "uncomplicated soft tissue injuries...amenable to the MIG". In 2022, he conducted an in-person exam along with a comprehensive review of the clinical notes and records, diagnostics and multiple insurer examination reports from the applicant's medical history. He concluded once again that "her injuries fall within the auspices of the MIG".
17The findings of the second report of Dr. Silver dated January 25, 2022, contradicts those of Dr. Tong in an OCF-3 dated only a few weeks earlier on December 16, 2021. Likewise, the applicant herself provides contradictory information to Dr. Silver. She did not report any functional or physical limitations during the examination, confirming that she was able to operate independently for personal care and housekeeping tasks, as well as driving.
18Based on the evidence before me, I am persuaded by the insurer's examination report from Dr. Silver dated January 25, 2022, for its comprehensiveness, integrated perspective on the applicant's previous medical history, and consistency with his initial findings. I also place weight on the fact that shortly after the accident in 2016, the applicant successfully returned to her full-time studies and part-time work schedule. Despite modified duties at the outset, she eventually managed to work full-time as a Registered Nurse following graduation from her program.
19I find that the applicant suffered only minor physical injuries as a result of the accident and consequently remains in the MIG.
Does the applicant suffer from chronic pain that precludes recovery within the MIG?
20I find that the applicant has not provided sufficient evidence of a chronic pain condition, arising from the accident, that warrants removal from the MIG.
21The applicant submits that chronic pain substantially interferes with her daily life. She points to the notations of chronic neck and back pain on the OCF-3 prepared by Dr. Tong on December 16, 2021, and the Chronic Pain Assessment Report from Dr. Grigory Karmy dated April 15, 2019. Following an examination of the applicant, and review of her medical records, Dr. Karmy concludes that the applicant exhibited the following injuries: mechanical lower back pain, myofascial pain syndrome, chronic pain syndrome, and sleep and mood disorders.
22The respondent points to the consistent findings in the two s. 44 reports from Dr. Silver, several years apart, both of which indicate that the applicant sustained only soft tissue injuries with no significant functional impairment. In the 2018 report, Dr. Silver diagnosed the applicant with neck, upper trapezius, back, left wrist and knee soft tissue pain. He confirmed that she had functional ranges in both the spine and upper and lower extremities and determined that no objective musculoskeletal impairments were observed. In the 2022 report, he concludes that there is still "no objective evidence of an ongoing accident-related injury or impairment" and that "Ms. Lubega sustained uncomplicated soft tissue injuries to her chest, neck, and back".
23I find that the assessments by Dr. Silver are more persuasive than the findings of Dr. Karmy and Dr. Tong. The respondent points to the Tribunal's decision in 16-000438 v The Personal Insurance Company, 2017 CanLII 59515, underlining that ongoing pain alone does not remove an applicant from the MIG, it must be continuous or of a severity that includes a significant functional impairment or disability. I am persuaded that the applicant has not presented evidence of a chronic pain condition accompanied by functional impairment or disability.
Does the applicant suffer from psychological symptoms that prevent recovery within the MIG?
24I find that the applicant does not suffer from a psychological condition that warrants removal from the MIG.
25The applicant submits that she experiences anxiety, poor sleep and stress, and requires psychological treatment to address these symptoms. These symptoms are noted in the OCF-3 completed by Dr. Tong as well as the Chronic Pain Assessment Report of Dr. Karmy. Despite the mention of anxiety and sleep issues in these reports, particulars are few and there is little detail provided regarding what type of psychological treatment is necessary, nor the goals and expected outcomes of such treatment.
26The respondent asserts that the applicant's psychological issues are not severe enough to warrant removal from the MIG, pointing to a decision by the Tribunal in Nguyen v Wawanesa Mutual Insurance Company, 2021 CanLII 96836, which held that anxiety alone is insufficient to be removed from the MIG, and likewise for slight mood or behavioural changes or sleep disruptions.
27I find that the medical documentation supports a determination that the applicant's complaints of anxiety, sleep and mood issues are minor and treatable within the limits of the MIG. There is no evidence that persuades me, on a balance of probabilities, of the existence of a more significant psychological impairment because of the accident.
28As I have found that the applicant is not entitled to treatment beyond the MIG, and the MIG limits have been exhausted, she is not entitled to the disputed treatment plans.
Interest
29No benefits being payable, no interest is owed pursuant to section 51 of the Schedule.
ORDER
30I find that the applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
31Having found that the applicant sustained a minor injury as a result of the accident, she is not entitled to the disputed OCF-18s because they propose services which surpass the MIG and the $3,500.00 funding limit for treatment.
32As a result, no benefits are payable and no interest is owed.
33The application is dismissed.
Released: August 3, 2023
Bonnie Oakes Charron
Adjudicator