Citation: Wright v. Cooperators General Insurance Co., 2023 ONLAT 20-014488/AABS

Licence Appeal Tribunal File Number: 20-014488/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:

Deneisha Wright

Applicant

and

Cooperators General Insurance Co.

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Deneisha Wright (“D.W.”) was involved in an automobile accident on October 16, 2018 and sought benefits from the respondent, Cooperators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). D.W. was denied certain benefits by Cooperators based on its determination that she sustained predominantly minor injuries as a result of the accident and was therefore subject to treatment within the Minor Injury Guideline (the “MIG”). D.W. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2Are D.W.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?

3Is the medical benefit in the amount of $1,309.46 for chiropractic services proposed by Dan Shlepakov in a treatment plan (OCF-18) dated December 21, 2018, reasonable and necessary?

4Is the medical benefit in the amount of $3,963.69 for psychological services proposed by Aparna Sekhar in an OCF-18 dated February 11, 2019, reasonable and necessary?

5Is the medical benefit in the amount of $2,925.60 for chiropractic services proposed by Dan Shlepakov in an OCF-18 dated February 3, 2019, reasonable and necessary?

6Is the cost of examination expense in the amount of $1,995.00 for a psychological assessment, proposed by Aparna Sekhar in an OCF-18 dated December 21, 2018, reasonable and necessary?

7Is. D.W. entitled to interest on any overdue payment of benefits?

RESULT

8D.W. has failed to establish that the injuries she suffered as a result of the accident were not predominantly minor. Accordingly, the claimed OCF-18s are not reasonable and necessary.

ANALYSIS

9Section 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 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.” An 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. In all cases, the burden of proof lies with the applicant.

10An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1).

11For the reasons that follow, D.W. has failed to establish that she suffered injuries as a result of the accident that are not predominantly minor.

Did D.W. suffer physical injuries that remove her from the MIG?

12D.W. relies on an October 27, 2018 Disability Certificate (OCF-3), which notes that she suffered a sprain and strain of the thoracic and lumbar spine, sprain and strain of the sacroiliac joint, shoulder joint and rotator cuff capsule, as well as experiencing malaise and fatigue. Chiropractor, Dr. Yen also noted insomnia, stress, anxiety disorders and nervousness. In addition, D.W. relies on a December 12, 2018 Minor Injury Treatment Discharge Report (OCF-24) completed by Dr. Shlepakov, chiropractor, who also noted the same injuries as the OCF-3. Dr. Shlepakov opined that due to range of motion limitations, pain and difficulties performing housekeeping activities, D.W. should be removed from the MIG.

13In response, Cooperators argues that D.W. has only relied on the OCF forms and has therefore not established that she suffered predominantly non-minor physical injuries as a result of the accident. I agree with Cooperators.

14On the evidence, I find that D.W. has failed to point me to any clinical notes and records from any treatment providers. Based on the evidence she has put forth, I place little weight on the OCF-18s, as they do not contain the necessary objective testing or evidence that establishes the within recommendations for treatment are reasonable and necessary. Nor do the OCF-18s provide compelling medical evidence that D.W.’s impairments are outside of the MIG. This is the test that must be met and her evidence falls short of meeting her onus.

15What I find lacking in this case, is corroborative objective evidence which can sometimes be found in assessment reports and the notes of treating medical practitioners.

16In the absence of supporting medical documentation, I agree with Cooperators that an adverse inference be drawn; in that any medical evidence would not support any of D.W.’s claims regarding the extent of her injuries or that treatment beyond the MIG limits is reasonable.

17For these reasons, I find that D.W. has not established that her accident-related physical injuries warrant removal from the MIG.

Did D.W. suffer psychological impairments that remove her from the MIG?

18I find she did not.

19D.W. relies on a January 31, 2019 psychological report from Dr. Sekhar. On testing, Dr. Sekhar opined that D.W. suffered a moderate level of depressive thoughts or feelings, and mild anxiety. Dr. Sekhar diagnosed D.W. with other reactions to severe stress, moderative depressive disorder.

20I place very little weight on Dr. Sekhar’s report as the doctor is not licenced to provide psychological services in Ontario. Her certificate of registration has been inactive since 2019. D.W. has not addressed this issue in her submissions. Consequently, I see no basis to consider Dr. Sekhar’s report.

21D.W. has not directed me to any other contemporaneous medical documentation to support that she suffered a psychological impairment as a result of the accident. Accordingly, I find that she has failed to satisfy her onus to establish that she requires treatment beyond the MIG limits as a result of a psychological diagnosis that is beyond mere sequelae.

22D.W. has failed to establish that both her alleged physical and psychological impairments require treatment beyond the MIG. While she had an opportunity to provide reply submissions, she did not. D.W.’s failure to respond to Cooperators position on the issues, in my view, is a confirmation that she does not contest its findings. As such, I see no reason to interfere with Cooperators determination.

23For the reasons above, I find that D.W. has failed to establish that any accident-related psychological impairment warrant removal from and treatment beyond the MIG.

Are the treatment plans reasonable and necessary?

24While approximately $78.00 remains available under the MIG, the totality of the disputed OCF-18s exceeds the amount available under the MIG. Accordingly, should D.W. choose to use the remaining balance, she has that right. However, as she remains in the MIG, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required.

CONCLUSION

25D.W. suffered predominantly minor injuries that are treatable within the MIG limits. The disputed OCF-18s are not reasonable and necessary.