Citation: Barrett v. Intact Insurance Company, 2023 ONLAT 21-006491/AABS

Licence Appeal Tribunal File Number: 21-006491/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:

Jordonne Barrett

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Gareth Neilson

APPEARANCES:

For the Applicant:

Jordonne Barrett, Applicant Camille Narine-Ramrattan, Paralegal

For the Respondent:

Kristen Ogden, Counsel

HEARD: In Writing

OVERVIEW

1Jordonne Barrett, the applicant, was involved in an automobile accident on July 20, 2016, 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, Intact 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 an income replacement benefit of $400.00 per week from March 8, 2017 to date and ongoing?

iii. Is the applicant entitled to $1,900.48 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted on November 1, 2019 and denied on November 4, 2019?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicants injuries fall predominantly within the minor injury guideline and therefore the appeal to be removed from the minor injury guideline is dismissed.

4I find that the applicant is not entitled to an income replacement benefit of $400.00 per week from March 8, 2017 to date and ongoing and therefore this appeal is dismissed.

5I find that the applicant is not entitled to $1,900.48 for physiotherapy services and therefore this appeal is dismissed.

6I find that the applicant is not entitled to interest on any overdue payments and therefore this appeal is dismissed.

ANALYSIS

Applicability of the Minor Injury Guideline (MIG)

7Section 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The Applicant’s injuries fall within the Minor Injury Guideline

8I find that the applicant failed to meet the burden of proof needed for removal from the Minor Injury Guideline.

9The applicant submits that they should be removed from the MIG due to physical injuries to their back, neck, sprain and strain of the shoulder joint, radiculopathy, sprain and strain of the lumbar spine, sprain and strain of the sacroiliac joint as well as psychological and chronic pain issues, sustained as a result of the motor vehicle accident.

10The applicant relies on reports from Physiotherapist Chaitalikumar Patel and Psychologist Dr. Leon Steiner. The applicant partially relies on reports from family doctor Dr. Al-Ward Harith, but concedes that they were only able to obtain CNRs up until 2019. Its important to note that the applicant did not provide or rely upon any medical imaging such as a CT Scan or X-Ray, to provide evidence of the severity of the sprains and strains. It is also important to note that the applicant did not refer to or rely upon a Chronic Pain Assessment nor has the applicant provided the tribunal with a prescription summary of any kind.

11The evidence of PT Patel and Dr. Harith describe symptoms that are consistent with injuries that fall within the minor injury guideline. PT Patel opines that the applicant has sprains and strains in numerous areas while Dr. Harith notes that the applicant has “full bending normal” and does not prescribe the applicant any medication.

12The respondent relies on a s. 44 Report of Psychologist Dr. Kelly McCutcheon, CNRs from family doctor Dr. Al-Ward Harith and an IE report from Dr. Neetan Alikhan GP. Both reports are consistent with injuries that can be considered within the minor injury guideline.

13The applicant relies upon the report from Physiotherapist Patel and the examination done on October 13, 2016. PT Patel noted that the applicant had Whiplash, lower back pain, Radiculopathy, 4 different sprains and strains, headache and disturbance of activity and attention, again, consistent with injuries sustained which fall within the minor injury guideline.

14The applicant further relies on a psychological report by Dr. Steiner which opines that the applicant has Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Steiner’s report describes a symptomology far different than all of the other professionals who assessed the applicant. For this reason, I am assigning less weight to Dr. Steiner’s assessment than I am to the other assessors and practitioners, whose reports are more consistent with each other.

15Intact counters with the report of the Rouge Valley Health Emergency department immediately following the accident where the applicant was administered Advil or Tylenol and sent home without any further treatment or medication needed.

16The respondent also counters with the report dated October 16, 2016 from Dr. Al-Ward Harith, family doctor. Dr. Harith states that the applicant has “full bending normal” and recommends taking Advil or Robaxacet. In addition, the respondent relies on the Dr. Neetan Alikhan, GP and the assessment done on January 28, 2017. Dr. Alikhan opines that the applicant had soft tissue injuries, was not taking any prescription medication and had not been referred to any specialists. Once again, these reports are consistent with injuries sustained that can be judged to be within the minor injury guideline.

17Lastly, the respondent relies on Dr. McCutcheon, who opines in the May 27, 2017 assessment of the applicant that: “In my opinion, Mr. Barrett’s symptoms of anxiety and depression are subclinical, and there is no evidence to indicate the presence of a diagnosable psychological condition at this time. I am of the opinion that his mild accident-related psychological symptoms fall within the limits of the Minor Injury Guideline.”

18After reviewing the evidence presented, I prefer the respondent’s position that the applicant’s injuries fall inside the minor injury guideline. The Tribunal has long put more weight on contemporaneous evidence as well as that of family physicians. The emergency room report clearly indicates soft tissue injuries with the recommendation to take over the counter medication. The applicant’s family physician recommends the same as does Dr. Alikhan.

19I find that the applicant has failed to prove that their injuries warrant removal from the Minor Injury Guideline.

The applicant is not entitled to an Income Replacement Benefit (IRB) in the amount of $400.00 per week from March 8, 2017 to date and ongoing.

20Section 5(1) of the Schedule states that an IRB is payable to an insured person who, within the first 104 weeks following the accident, is substantially unable to perform the essential tasks of their pre-accident employment due to an impairment sustained as a result of the accident. Additionally, Section 6(a) of the Schedule sets out that the test for entitlement to an IRB post-104 weeks is that the applicant must demonstrate that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

21The applicant is denied any Income Replacement Benefit because the applicant has failed to meet the test to qualify for IRBs.

22The applicant was working prior to the accident and had been working full time with a company for 8 months. The applicant went back to work within a week after the accident, working on modified duties. The applicant left his place of employment in February of 2017, but the reasons for the applicant leaving the workplace are unclear.

23The applicant argues that he was terminated or forced to leave because he could not perform certain tasks as a result of injuries sustained in the accident. I do not accept the applicant’s submission on this issue. The applicant provides no evidence to support this claim. The applicant provided no termination letter or any employment records that would support this claim. Additionally, it would seem logical that if the applicant was unable to work due to injuries sustained in the accident, the applicant would file for Short or Long Term disability before being let go and/or would have applied for ODSP. It is noted that along with EI benefits the applicant did collect CERB throughout the pandemic period.

24There has been no medical evidence presented by the applicant that would suggest that he could not continue to work. The applicant has failed to provide any medical imaging or substantive medical evidence, chronic pain assessment or a prescription summary that could prove that the applicant’s injuries are severe enough that he needed to stop work and therefore qualified for IRBs. Multiple doctor’s have recommended over the counter medication and the applicant has given evidence that they are not on any prescriptions.

25I find that the applicant is not entitled to Income Replacement Benefits.

The applicant is not entitled to $1,900.48 for physiotherapy treatment.

26The applicant is denied the appeal for physiotherapy treatment because the applicant injuries fall within the minor injury guideline and the MIG limits have been exhausted.

27I find that the applicant is not entitled to the amount claimed for physiotherapy treatment.

Interest

28Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I find that the applicant is not entitled to the disputed benefits, none of them are overdue and therefore no interest is payable by the respondent.

ORDER

29I order as follows:

i. The Applicant’s injuries are predominantly minor as defined in Section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG.

ii. The Applicant is not entitled to an income replacement benefit of $400.00 per week from March 8, 2017, to date and ongoing.

iii. The Applicant is not entitled to $1,900.48 for physiotherapy services proposed by Alexmuir Wellness Centre in a treatment plan (OCF-18) submitted on November 1, 2019, and denied on November 4, 2019.

iv. No interest is due.