Citation: Markovska v. Pembridge Insurance Company, 2023 ONLAT 20-015385/AABS

Licence Appeal Tribunal File Number: 20-015385/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:

Tetyana Markovska

Applicant

and

Pembridge Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Christopher Evans

APPEARANCES:

For the Applicant:

Kateryna Vlada, Paralegal

For the Respondent:

Briana Cott, Counsel

HEARD:

By Way of Written Submissions

1Tetyana Markovska (the “applicant”) was involved in an automobile accident on May 10, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (the “Schedule”). The applicant was denied certain benefits by Pembridge Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute.

2The applicant was rear-ended when she stopped to let some ducks cross the street. She alleges that she suffers from anxiety, depression, dizziness, and chronic back pain due to the accident.

3The respondent took the position that the applicant sustained an impairment that was predominantly a minor injury, and that she was therefore limited to $3,500.00 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”). When she submitted a treatment plan (OCF-18) for chiropractic services, the respondent denied it on the grounds that she had exhausted the benefits available to her.

4The applicant seeks determinations that she is not subject to the $3,500.00 limit on benefits and that she is entitled to the OCF-18 in dispute with interest.

ISSUES

5The issues are as follows:

Did the applicant sustain a predominantly minor injury subject to treatment under the $3,500.00 limit on medical and rehabilitation benefits?
Is the applicant entitled to medical benefits in the amount of $1,628.52 for chiropractic services, proposed by Active Health and Wellness Centre in an OCF-18 dated November 8, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6The applicant has not established that she sustained a non-minor injury, or that she has a documented pre-existing medical condition that prevents her from achieving full recovery from her accident-related injuries subject to the $3,500.00 limit on medical and rehabilitation benefits and treatment under the MIG.

7The applicant is not entitled to the OCF-18 in dispute or interest.

ANALYSIS

1. Did the Applicant Sustain a Predominantly Minor Injury Subject to Treatment Under the $3,500.00 Limit on Medical and Rehabilitation Benefits?

8Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.

9A minor injury is defined in s. 3 of the Schedule 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.”

10Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500.00 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

11The onus is on the applicant to prove that she is not subject to the $3,500.00 limit on benefits: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

12Dr. I. Yelenbaugen, the applicant’s family doctor, diagnosed her with a soft tissue injury to her neck at her first appointment after the accident.² Soft tissue injuries are sprains and/or strains, which are minor injuries. The applicant alleges that she also suffers from anxiety, depression, dizziness, and chronic back pain, which are non-minor injuries. She alleges that she has two documented pre-existing medical conditions—anxiety and chronic low back pain—that prevent her from achieving maximal recovery from her injuries subject to the $3,500.00 limit on benefits and treatment under the MIG.

13The respondent submits that the applicant sustained none of the alleged non-minor injuries due to the accident, and that no pre-existing health conditions prevent her from achieving maximal recovery from her accident-related injuries if she remains subject to the $3,500.00 limit on benefits and treatment under the MIG. It relies on an independent assessment conducted by Dr. R. Zarnett, an orthopaedic surgeon. Dr. Zarnett opined that the applicant’s accident-related injuries were strains of her cervical and lumbar spine, and that no pre-existing medical conditions prevent her from achieving maximal recovery from these injuries subject to the $3,500.00 limit on benefits or the goods and services available under the MIG.³

14I find that the applicant has not established that she sustained the alleged non-minor injuries due to the accident, or that she has a documented pre-existing medical condition that prevents her from achieving maximal recovery from her accident-related injuries subject to the $3,500.00 limit on benefits and treatment under the MIG.

Did the Applicant Sustain a Non-Minor Injury?

15Dr. Yelenbaugen diagnosed the applicant with an anxiety disorder and insomnia on May 13, 2019, one year after the accident.⁴ Dr. Yelenbaugen’s clinical note does not indicate that these symptoms were connected with the accident. The applicant did not report any psychological symptoms at earlier post-accident appointments on May 25 and August 9, 2018, and Dr. Yelenbaugen’s clinical notes from those appointments state “[p]sychiatric (normal)” under the heading “Objective.”⁵ There is no evidence that anxiety and insomnia continued to be issues after the May 13, 2019 appointment. Dr. Yelenbaugen recommended a follow-up appointment in three months,⁶ but the applicant’s next appointment was not until July 27, 2020, more than a year later.⁷ The appointment concerned a different issue, and there is no reference to anxiety or insomnia in Dr. Yelenbaugen’s clinical note of that date.⁸ The applicant has not obtained any treatment for these disorders.

16There is virtually no evidence that supports the applicant’s claim she suffers from depression due to the accident. Depression was one of the complaints the applicant reported to Dr. Zarnett at the independent assessment on December 6, 2018.⁹ Dr. Zarnett did not inquire further into this issue, presumably because psychological disorders fell outside his area of expertise as an orthopaedic surgeon. The applicant has identified no other evidence that she experienced depression after the accident. The applicant did not report experiencing depression to Dr. Yelenbaugen after the accident, and has not obtained treatment for depression.

17The applicant has not established that she had any ongoing issues with dizziness due to the accident. Dr. Yelenbaugen referred her to Dr. X. Punthakee, an ear, nose, and throat specialist, when she complained of occasional dizziness and nausea at the August 9, 2018 appointment.¹⁰ The applicant reported to Dr. Punthakee that she felt vertigo, imbalance, and weakness for two to three days after the accident, but felt significantly better after that.¹¹ She reported that she felt some intermittent sensations of imbalance over the summer, but could not specifically recall any issues with dizziness over the month preceding the appointment on November 1, 2018.¹² Dr. Punthakee did not identify any inner ear pathologies that would cause dizziness.¹³ The applicant did not report any further issues with dizziness until she experienced a second episode of vertigo on July 23, 2020.¹⁴ There is no evidence that indicates this episode was related to the accident, which had occurred more than two years earlier.

18The applicant has not established that the accident caused additional back pain. Dr. Zarnett diagnosed the applicant’s lumbar strain as a separate injury from her pre-existing chronic back pain.¹⁵ The applicant has not identified any evidence that refutes this opinion. In fact, the applicant complained of pain in her neck, right shoulder, and right upper back at the May 25, 2018 appointment, but Dr. Yelenbaugen only diagnosed her with a soft tissue injury to her neck.¹⁶ This suggests that Dr. Yelenbaugen did not consider the applicant to have injured her back in the accident, but it is not entirely clear given that her clinical note does not explicitly rule out a back injury either. In any event, the applicant did not report any further issues with back pain to Dr. Yelenbaugen after the May 25, 2018 appointment.

Does the Applicant Have a Pre-Existing Medical Condition Within the Meaning of Section 18(2)?

19I find that the applicant has not established that she has a documented pre-existing medical condition that prevents her from achieving maximal recovery from her accident-related injuries subject to the $3,500.00 limit on benefits and treatment under the MIG.

20The applicant reported experiencing anxiety to Dr. Yelenbaugen once before the accident, at an appointment on June 3, 2015.¹⁷ There is no evidence that anxiety was still an issue by the time of the accident on May 10, 2018. The applicant did not report experiencing anxiety to Dr. Yelenbaugen over the three intervening years, and did not obtain treatment for it. As noted above, the applicant next reported experiencing anxiety at the May 13, 2019 appointment, one year after the accident.¹⁸ I am not persuaded that this episode of anxiety was caused by the accident, but even if it were, there is no evidence that a pre-existing anxiety condition prevented her from achieving maximal recovery from it.

21While the applicant did suffer from pre-existing back pain, the evidence does not indicate that her back pain interfered with her recovery from her accident-related injuries. As noted above, Dr. Yelenbaugen did not diagnose the applicant with a back injury due to the accident, and the applicant did not subsequently report any issues with back pain after the May 25, 2018 appointment.¹⁹ Dr. Zarnett opined that her lumbar strain was a separate injury from her chronic back pain, and that the latter would not prevent her from achieving maximal medical recovery from the former if she were limited to $3,500.00 in benefits and the goods and services available under the MIG.²⁰ The applicant has not identified any evidence that refutes this opinion.

22The applicant argues that Dr. Zarnett’s opinion is inconsistent with s.18(2) of the Schedule because it acknowledges that she had pre-existing medical conditions yet still concludes that she sustained minor injuries. I disagree. Dr. Zarnett concluded that the applicant sustained minor injuries due to the accident, and that her pre-existing medical conditions do not prevent her from achieving maximal recovery from those injuries subject to the $3,500.00 limit on benefits or treatment under the MIG. His opinion is consistent with the test under s. 18(2).

2. Is the Applicant Entitled to the OCF-18 in Dispute?

23As the applicant continues to be limited to $3,500.00 in medical and rehabilitation benefits and she has exhausted that limit, I need not consider whether she is entitled to the OCF-18 in dispute.

3. Is the Applicant Entitled to Interest?

24As there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

25The applicant continues to be subject to the $3,500.00 limit on medical and rehabilitation benefits.

26The applicant is not entitled to the OCF-18 in dispute or interest.

27The application is dismissed.

Released: February 1, 2023

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