Licence Appeal Tribunal File Number: 20-011053/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:
Amal Yousuf
Applicant
And
Waterloo Insurance
Respondent
DECISION
VICE-CHAIR:
Nancy Aquilina
APPEARANCES:
For the Applicant:
Ryan St Aubin, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD: In Writing
August 4, 2023
OVERVIEW
1Amal Yousuf, the applicant, was involved in an automobile accident on December 19, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Waterloo Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
MOTION oN PRELIMINARY ISSUES
2In the Case Conference Report and Order dated July 6, 2021, a preliminary issue was noted, and the parties were given until August 5, 2021, to file a Notice of Motion to address it.
3On August 5, 2021, the respondent filed a Notice of Motion requesting that the Tribunal issue a decision considering if the applicant should be barred from proceeding with her appeal on the grounds that she failed to submit to an Insurer’s Examination (“IE”) pursuant to section 44 of the Schedule. The Tribunal issued a motion decision on January 4, 2022, staying the proceeding for 120 days to allow for the completion of the physiatry IE. In their submissions, the parties confirmed that the physiatry IE was completed on April 8, 2022. This issue is no longer in dispute.
ISSUES
4The 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. If the applicant’s injuries are not considered to be predominantly minor:
i. Is the applicant entitled to a medical benefit in the amount of $3,175.80 for physiotherapy treatment, proposed by Umana Health in a treatment plan (OCF-18) submitted on October 12, 2018, and denied on October 19, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based on the totality of the evidence before me, I find:
The applicant has sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the $3,500.00 MIG limit.
As I have found that the applicant’s injuries are within the MIG, there is no need to determine if the treatment plans are reasonable and necessary and, therefore, no interest is payable.
ANALYSIS
Applicability of the Minor Injury Guideline
6Section 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 Minor Injury Guideline (“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.”
7An insured person may be removed from the MIG if it can be established that their accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
8The onus falls on the applicant to prove that her injuries are not predominantly minor and are not limited to the $3,500.00 MIG cap.
9For the following reasons, I find that the applicant has not established that, on a balance of probabilities, her injuries are not predominantly minor as defined in section 3 the Schedule and subject to the treatment limits of the MIG.
10The applicant submits that her accident-related injuries fall outside of the MIG on the basis that she suffers from ongoing neck, shoulder, and back pain, headaches and TMJ that would prevent her from maximum medical recovery if she were to be kept within the MIG.
11The hospital records and the clinical notes and records of Dr. Berih, family physician, show that the applicant sustained neck strain, back strain, bilateral shoulder strain, right knee strain, a right thigh contusion, left hip pain, dizziness, and right jaw pain. The applicant is referred to physiotherapy by her family physician and a clinical note from Royal York Massage Therapy and Osteopathy dated December 26, 2017 is produced that identifies rib and sternum pain, whiplash and TMJ pain. Similar injuries are noted by Felix Umana, physiotherapist who completed the OCF-18 in dispute, including upper and lower back pain, neck pain, migraines, and TMJ. In the clinical notes and records of Revitamax Rehab and Wellness of September 2020, the applicant reports TMJ, and neck pain.
12The respondent takes the position that the applicant has not met her onus to establish that her physical injuries fall outside the MIG limits and relies on the applicant’s medical evidence along with an IE report of Dr. Soric, physiatrist, dated April 18, 2022, who opines that the applicant has sustained blunt trauma to her knees, a WAD II injury, and soft tissue trauma to her left shoulder girdle and that no physical impairment is detected.
13Upon review of the parties’ submissions and medical evidence, I find that the applicant has sustained soft tissue injuries consistent with the definition of minor as set out in s. 3 of the Schedule. The limited clinical notes and records of Dr. Berih, Umana Health, Royal York Massage Therapy and Osteopathy and Revitamax Rehab and Wellness show findings of strains with pain and contusions, injuries that fall squarely within the definition of the MIG.
14On September 11, 2018, the applicant sees Dr. Berih, family physician, almost nine months following her initial visit post accident and reports that she had TMJ pain and headaches since March of 2018. A TMJ x-ray is ordered, and the findings are normal with no fractures, bone lesions or any other non minor related injuries to the applicant’s joints.
15In October of 2018, Dr. Berih notes that the applicant’s range of motion is normal in the neck, back, and shoulders and this is consistent with Dr. Soric’s findings of normal strength and complete range of motion in the cervical, thoracic spine and both shoulders. Accordingly, I find her physical injuries fall within the definition of a minor injury under the Schedule.
Does the applicant suffer chronic pain that warrants removal from the MIG?
16I do not find that the applicant’s ongoing physical pain has caused functional impairment or chronic pain and does not warrant removal from the MIG.
17The applicant contends that her injuries affect her daily and that she continues to have ongoing headaches and pain in her jaw, neck, back and shoulder that interfere with her work as a dental hygienist and warrant removal from the MIG.
18In support of her claim, the applicant submits a clinical note of Dr. Berih dated October 25, 2018, in which she reports that she has bad a 3-month history of lower back and neck pain. Dr. Berih notes that it is aggravated by prolonged sitting and sustained positions at work. Further to this, the applicant submits clinical notes and records of Dr. Patel, entries ranging from January 16, 2019, to July 16, 2020, and commencing over a year post accident, that reference chronic fatigue, dizziness, foot, back, headaches, and chronic neck muscle spasms. Dr. Patel refers the applicant to Dr. Di Fonzo who diagnoses mechanical neck pain and left myofascial pain syndrome.
19The respondent contends that the applicant’s chronic neck, jaw and back pain is tied to her employment and not accident-related and that ongoing pain is insufficient grounds to take the applicant out of the MIG as it must be accompanied by functional impairment. The respondent submits that there is no functional impairment given the applicant had returned to full-time work as a dental hygienist and is independent in her personal care.
20In Y.X.Y. v. The Personal Insurance Company, (16-000438/AABS) the Tribunal held that for pain to be considered chronic, it must be more than mere sequelae from injuries and that its severity must cause functional impairment.[1] It does not appear that the applicant’s lingering physical pain has caused functional impairment, as she resumed work as a dental hygienist a few weeks following the accident and continues to work full-time. I am not pointed to evidence that the applicant is unable to perform her activities of daily living including her personal care or unable to care for her young son.
21The applicant points to a note in Dr. Patel’s records dated February 3, 2020, that states that the applicant has chronic pain syndrome and the note of Dr. Di Fonzo who recommends injections for neck pain and left myofascial pain syndrome, but I am not pointed to compelling medical evidence that establishes the degree of pain and its relation to functional limitations.
22The applicant submits clinical notes and records of Revitamax Rehab and Wellness that note an increase in jaw and neck pain at the end of a day of work and the days following. I am not persuaded that the TMJ pain is directly related to the accident as the records also state that TMJ has been a consistent complaint in the applicant’s life. Nonetheless, I am not pointed to evidence that this ongoing pain has reduced the applicant’s functionality.
23Lastly, I agree with the respondent that the applicant’s ongoing pain is attributable to her employment and prefer Dr. Soric’s physiatry report of April 18, 2022, that opines that the applicant’s work as a dental hygienist and her need to maintain a certain posture while working is what is preventing her from becoming fully asymptomatic and not her accident-related injuries.
24Therefore, I find that the applicant has not met her onus to prove that she has chronic pain syndrome or chronic pain with functional impairment that would remove her from the MIG. In addition to this, I find that that her ongoing physical pain has not caused functional limitations.
ORDER
25For the reasons outlined above, I find the following:
The applicant has sustained predominantly minor injuries as defined in the Schedule and is subject to treatment within the $3,500.00 MIG limit.
As I have found that the applicant’s injuries are within the MIG, there is no need to determine if the treatment plans are reasonable and necessary and, therefore, no interest is payable.
As there is no benefit payable, no interest is payable.
Released: August 15, 2023
Nancy Aquilina
Vice-Chair
12017 CanLII 59515 (ON LAT) (“Y.X.Y.”)