Licence Appeal Tribunal File Number: 22-002821/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:
Terry-Ann Cornelius
Applicant
and
Allstate Canada
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Thulasi Kandiah, Counsel
HEARD:
In Writing
OVERVIEW
1Terry-Ann Cornelius, the applicant, was involved in an automobile accident on February 7, 2019, 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, Allstate Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent took issue with the applicant’s failure to comply with the Tribunal’s Case Conference Report and Order (“CCRO”) dated February 14, 2023, that set the page limit for the parties at 10 pages and double spaced.
3The applicant’s submissions were 11 pages. The respondent requested that instead of striking the applicant’s submissions, the respondent sought leave to have the same 11 pages to respond to the applicant’s submissions.
4The applicant offered no explanation as to the reason(s) for exceeding the length, nor did the applicant file a motion to extend the page limit in advance of the hearing.
5In reviewing the evidence, I find that both applicant and the respondent’s submissions are 11 pages and did not comply with the CCRO.
6As a result, I will not admit the applicant or the respondent’s submissions after page 10.
ISSUES
7The following issues are to be decided:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,448.10 for Chiropractic Services proposed by Activa Brampton in an OCF-18 dated October 4, 2019?
iii. Is the applicant entitled to $975.59 for a Other Assistive assessment, proposed by Activa Brampton in an OCF-18 dated April 14, 2019?
iv. Is the applicant entitled to $2,199.00 for a Occupational Therapy assessment, proposed by Alcat Assessments Inc in an OCF-18 dated November 27, 2019?
v. Is the applicant entitled to $2,200.00 for a Chronic Pain assessment, proposed by Alcat Assessments Inc in an OCF-18 dated November 12, 2019?
vi. Is the applicant entitled to $282.50 for transport, proposed by Alcat Assessments Inc in an OCF-21 dated January 22, 2020?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
8I find that the applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, nor interest is payable.
ANALYSIS
APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)
9The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
10Section 8(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
11An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
12It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
13The applicant submits that she should be removed from the MIG on the basis of physical and psychological impairments, chronic pain or her pre-existing injury.
Did the applicant suffer physical injuries that warrant the removal from the MIG?
14I find that the applicant has failed to prove, on a balance of probabilities, that she suffered from physical injuries that are not predominately minor in nature as defined in the Schedule, as it has not been substantiated by medical evidence.
15On February 7, 2019, the date of the accident, the applicant drover herself to the Emergency Department at Brampton Civic Hospital. The clinical notes and records (“CNRs”) from Brampton Civic Hospital provide that the applicant did not lose consciousness, the diagnostic imaging was normal, and she was discharged with no prescriptions or medical referrals.
16The applicant relies on the CNRs of Dr. Philip Yu, family physician. The applicant attended the office of Dr. Yu with head, neck, shoulder and back pain. Dr. Yu did not refer the applicant to any medical specialist or provide pain medication and diagnosed the applicant with soft tissue injuries. Dr. Yu recommended physiotherapy and stretching. An x-ray ordered by Dr. Yu for the applicant’s right knee, came back unremarkable.
17The applicant also relies on the Disability Certificate (“OCF-3”) completed by Mr. Tomasz Furgal, chiropractor, who noted the applicant’s injuries as sprains and strains. In reviewing the OCF-3, I note that all injuries listed are identified as minor injuries.
18I am persuaded by the medical opinion of the respondent’s section 44 Insurer’s Examination (“IE”) assessor, Dr. Rajka Soric, physiatrist. Dr. Soric completed an assessment report, dated January 30, 2020, and concluded that the applicant suffered minor injuries.
19After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG, the applicant’s evidence only pointed to minor injuries. I am persuaded by the medical opinion of Dr. Yu and Dr. Soric, which is consistent with the soft tissue sprains and strains mentioned in the OCF-3.
20As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal form the MIG.
Did the applicant suffer psychological injuries that warrant the removal from the MIG?
21I find that the applicant has failed to prove, on a balance of probabilities, that she sustained a psychological injury that is not predominately minor in nature as defined in the Schedule.
22An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
23In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
24The applicant relies on her self-reporting to Dr. Soric during the IE assessment that she felt “depressed” since the accident, and the self reporting to Dr. Dima Rozen, interventional pain medicine during the section 25 chronic pain assessment dated February 14, 2020 that she was increasingly emotional with low motivation, anxiety and depression.
25The applicant cites 17-005791 v. Aviva Insurance Canada and argues that the mere presence of psychological symptoms is sufficient to warrant her removal from the MIG.
26I am not persuaded that this decision has any bearing on the matter before me. As accurately argued by the respondent, 17-005791 is distinguishable from the case at hand because there were records of psychological injuries in the family doctor records. I find that no such medical records are presented by the applicant here.
27After considering the evidence and submissions from the parties, based on a balance of probabilities I find that the applicant has not met her onus to demonstrate that she suffers from a psychological impairment as a result of the accident.
28I note that the CNRs and OCF-3 are completely void of any complaint or diagnosis of a psychological impairment. In reviewing the applicant’s medical records there is no indication of psychological symptoms, prescriptions or referrals.
29The applicant has the onus to establishing that she suffered a psychological impairment sufficient to remove her from the MIG treatment limits. In this regard, I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG.
Does the applicant suffer chronic pain that warrants the removal from the MIG?
30I find that the applicant failed to provide evidence demonstrating that she developed or suffers from chronic pain with functional impairment resulting from the accident, that warrants removal from the MIG.
31For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality.
32Chronic pain must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability. The applicant is not specific as to what physical injuries are chronic but submits that because they are not minor in nature, she should be exempt from the MIG.
33The applicant relies on the opinion of Dr. Rozen who opines that the applicant’s accident-related pains are chronic and diagnosed the applicant with chronic pain syndrome.
34The respondent contends that the applicant suffered predominately soft tissue injures and Dr. Rozen’s diagnosis of chronic pain is inconsistent with the bulk of medical evidence, and furthermore does not demonstrate functional impairment. I agree with the respondent that ongoing pain is insufficient grounds to take the applicant out of the MIG as it must be accompanied by functional impairment.
35The respondent submits that Dr. Yu’s CNR reveal the applicant suffered soft tissue injuries, the CNRs did not reveal referral to a specialist or further testing, did not describe how her pain affects her ability to function, nor mention chronic pain.
36The respondent referenced the American Medical Association Guides (“AMA Guides”). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six factors. I agree with the respondent, the applicant did not provide evidence to demonstrate: dependence on prescription medication for prolonged periods, excessive dependence on others or the healthcare system as she only sporadically consulted with Dr. Yu with significant gaps between appointments, secondary physical conditioning as the applicant has returned to full working hours and duties at work, withdrawal from social milieu, failure to restore pre-injury function, or the development of psychosocial sequalae, beyond the applicant’s self-reporting.
37I am not persuaded that the applicant demonstrated that her accident-related soft tissue injuries, confirmed by Dr. Yu’s CNRs, had a detrimental impact on her functionality. Although, Dr. Rozen diagnoses the applicant with chronic pain, I find it to be unsupported by other medical evidence. Even if I did accept Dr. Rozen’s chronic pain diagnosis, I am persuaded by the respondent’s submissions that for chronic pain to be more than just sequelae from soft tissue injuries it must be such a severity that it causes suffering and distress accompanied by functional impairment or disability. There is a lack of evidence advanced by the applicant to suggest that her injuries were severe enough to cause distress accompanied by functional impairment or disability.
38I find that the applicant has not met her onus to prove she has chronic pain with functional impairment that would remove her from the MIG. In addition, I find that her ongoing physical pain has not caused functional limitations.
Does the applicant suffer from a pre-existing condition that warrants the removal from the MIG?
39Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
40The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
41The applicant submits her pre-existing left knee and back pain warrants removal from the MIG. It is the applicant’s position that the pre-existing pain pose a barrier to her recovery and as such she should be removed from the MIG.
42I am persuaded by the respondent. The CNRs of Dr. Yu reveal that the applicant’s most recent report of knee pain before the accident was August 2017, and on January 25, 2019, the applicant told Dr. Yu that she no longer had any back pain. I accept that the applicant had back pain, but it has since resolved, and therefore would not prevent maximal recovery. Furthermore, no medical records, that were submitted reveal that the applicant has a pre-existing medical condition that would prevent the applicant from achieving maximal medical recovery under the MIG.
43Therefore, I am not persuaded that the applicant has established how she would be prevented from reaching maximum recovery within the MIG as a result of any pre-existing impairments.
THE DISPUTED TREATMENT PLANS
44The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
INTEREST
45There are no benefits payable, therefore no interest is owing.
ORDER
46The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest.
Released: February 9, 2024
Monica Ciriello
Vice-Chair