Licence Appeal Tribunal File Number: 22-010327/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:
Brittney McGowan
Applicant
and
Intact Insurance Company*
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Agal Lankeswaran, Paralegal
For the Respondent:
Robbie Brar, Counsel
Written Hearing:
Heard by way of written submissions
OVERVIEW
1Brittney McGowan (the applicant) was involved in an automobile accident on March 21, 2020, 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $680.00 for chiropractic services from Apex Physiotherapy and Chiropractic in a treatment plan (OCF-18) dated October 30, 2020?
iii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from October 21, 2020, to October 21, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that, the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.
4I find that the applicant is subject to the MIG funding limitation and is therefore not entitled to the treatment plan in dispute.
5As the applicant has failed to prove she has a complete inability to carry on a normal life, the applicant is not entitled to an NEB.
ANALYSIS
The Minor Injury Guideline (“MIG”)
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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 accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
8The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed due to chronic pain with a functional impairment and a psychological condition.
9The respondent argues that the applicant has not met the burden of proof that she suffers from chronic pain with a functional impairment or a psychological condition.
The applicant remains within the MIG
10I find that the applicant has not met her onus and demonstrated on a balance of probabilities that she suffers from chronic pain with a functional impairment.
11I find that the applicant has not met her onus and demonstrated on a balance of probabilities that she suffers from a psychological condition that warrants removal from MIG.
Does the applicant suffer from chronic pain with a functional impairment?
12I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment.
13To support this position, the applicant relies on clinical notes and records (“CNRs”) of Dr. Khan, the applicant’s family doctor. The CNRs note the applicant reported the motor vehicle accident on March 23, 2020. The CNRs diagnose muscle pain and suggests physiotherapy. Back pain is reported on June 29, 2023, with mention in the CNR to a pain clinic referral. There is no mention of the motor vehicle accident in association with this pain report. The CNRs of Dr. Khan do not show any objective medical evidence that the doctor has diagnosed chronic pain in association with the motor vehicle accident. As well, throughout the CNRs, there is no discussion of any functional impairment in association with injuries suffered as part of the motor vehicle accident.
14The applicant also relies on the CNRs of Salem Medical Clinic, and Dr. Haim, physician. The applicant visited the clinic on July 22, 2023. The applicant refers to the motor vehicle accident, but the diagnosis rendered during the visit was strain related injuries. The visit also confirms that all of the diagnostic imagining undertaken, X-rays, Ultrasound, CT, and MRIs, have come back normal. The applicant was given information on chronic pain management/Neupath clinic.
15The applicant also relies on the CNRs of Dr. Marchie, physiatrist. The applicant visited Dr. Marchie on December 15, 2020. As a result of the visit, the applicant was diagnosed with strain/sprain of thoracic/lumbar, SI joint dysfunction, and bilateral GT bursitis. The CNR notes that the applicant reported that massage therapy, chiropractic therapy was not helpful. Dr. Marchie does note that radiography of the pelvis and SI joints revealed no evidence of recent fracture or abnormalities. No cause of pain was identified. There was no diagnosis of chronic pain, nor any mention of any chronicity in association with the applicant’s injuries.
16The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that she suffers from chronic pain with a functional impairment. The respondent relies on a musculoskeletal assessment by Dr. Bansal, physician, completed on March 30, 2023. The assessment was in-person and consisted of medical documentation review, clinical interview, and a physical examination. Dr. Bansal diagnosed the applicant with soft tissue injuries in association with the motor vehicle accident. The doctor further stated that “today’s physical examination contained no valid signs of musculoskeletal, orthopaedic, or neurological injury”. I found this report compelling as it corroborated the level of injury that I found in Dr. Khan’s CNRs.
17Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries she suffered in the accident have led to chronic pain with a functional impairment.
18I was led to this conclusion by the lack of medical evidence that the applicant suffers from chronic pain with a functional impairment directly linked to the motor vehicle accident. The CNRs provided do not speak to chronic pain, endorse the potential of chronic pain, or outline any functional impairment suffered by the applicant. The CNRs all seem in agreement that the injuries associated with the motor vehicle accident were sprain/strain related, and all medical imagining has come back normal.
19The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from chronic pain with a functional impairment due to the motor vehicle accident.
Does the applicant suffer from a psychological condition?
20I find that the applicant has not met her onus on a balance of probabilities to substantiate she suffers from a psychological condition.
21The applicant submits that she suffers from a psychological condition because of the motor vehicle accident. The applicant relies on a the CNRs of Dr. Khan, her family doctor. There is one entry in the CNRs on May 15, 2023 that notes “anxiety with driving, insomnia post mva”. As part of this visit, Dr. Khan states he will refer to a psychiatrist. In another entry, the doctor notes “post partum blues”. I am not directed to any other medical evidence. I was not directed to any indication that this referral was followed up on or not. As such, I find that a single entry in a CNR with no psychiatric follow up or diagnosis does not substantiate a psychological condition that warrants removal from MIG.
22The respondent submits that that the applicant has not met the burden of proof in providing sufficient medical evidence that she suffers a psychological condition.
23Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries she suffers a psychological condition. I was led to this conclusion by the lack of medical evidence that a psychological condition was present. I do not consider the entry in the Dr. Khan’s CNR to be a formal clinical diagnosis of anxiety, but a notation as to anxiety-related symptoms.
24The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers from a psychological condition due to the motor vehicle accident.
The Non-Earner Benefit (NEB)
25I find that the applicant is not entitled to an NEB. She has not proven that she suffers from a complete inability to carry on a normal life as a result of the accident in accordance with s.12(1) of the Schedule.
26Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident activities.
27The applicant has made no submission as to the reasons she should be granted NEB.
28The respondent argues that the applicant is not entitled to the NEB for any period, citing primarily that the applicant has not met her burden of proving that she suffers from a complete inability to carry on a normal life. The respondent points to the OCF-1 completed on June 3, 2020, that does not indicate a complete inability to carry on normal life, by indicating in the question “Did your injuries prevent you from working?”, the answer to that question was no. The respondent further argues that none of the medical records provided contain any evidence that would satisfy the criteria for the NEB,.
29Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that she suffers a complete inability to carry on normal life.
30The applicant has not satisfied her onus to prove on a balance of probabilities that she suffers a complete inability to carry on a normal life.
Conclusion
31For the reasons noted above, the applicant has not proven that she suffers from chronic pain with a functional impairment or a psychiatric condition to warrant removal from MIG.
32As I have found the applicant to remain within the MIG and is subject to its funding limit for treatment plans, and as the treatment plans in question are beyond the MIG limits remaining, the applicant is not entitled to payment for the plan.
Interest
33As the applicant is not entitled to any payments, no interest is due.
ORDER
34I find that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to payment for the disputed treatment plan.
iii. The applicant is not entitled to a Non-Earner Benefits.
iv. As nothing is owed, no interest is due.
v. The application is dismissed.
Released: October 18, 2024
Robert Rock
Adjudicator