Dhanmatie Jaipaul v. Unifund, 2024 CanLII 108246

Citation: Jaipaul v. Unifund, 2024 ONLAT 22-009134/AABS

Licence Appeal Tribunal File Number: 22-009134/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:

Dhanmatie Jaipaul

Applicant

and

Unifund

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Dean Trinetti, Counsel

For the Respondent: Theomarcus Giannou, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Dhanmatie Jaipul, the applicant, was involved in an automobile accident on December 29, 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, Unifund, 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 the Minor Injury Guideline (MIG) and the $3,500.00 funding limit on treatment?

ii. Is the applicant entitled to $2,650.00 for chiropractic services proposed by Physiocare & Rehab in a treatment plan/OCF-18 dated March 11, 2022?

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

3In her submissions, the applicant withdrew her claim for $2,650.00 for chiropractic services proposed by Physiocare & Rehab in a treatment plan dated April 11, 2022 as it was a duplicate of issue ii above.

RESULT

4I find that the applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

5The applicant is not entitled to the proposed treatment plan for chiropractic services dated April 11, 2022, as it proposes treatment that is outside of the MIG.

6As no benefits are payable, the applicant is not entitled to interest.

ANALYSIS

MIG

7For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

8Section 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. 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.”

9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10In this matter, the applicant submits that she should be removed from the MIG because she suffers from chronic pain, psychological injury, and pre-existing medical conditions.

Chronic Pain

11I find that the applicant has not demonstrated that she suffers from a chronic pain condition that warrants removal from the MIG.

12Chronic pain conditions are not included in the minor injury definition. In order to establish that he has a chronic pain condition, the applicant must demonstrate that her pain causes a functional impairment which adversely affects her well-being or that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

13The applicant submits that her accident-related back, neck, and shoulder pain have become chronic because it has been ongoing for over three years and impacts her ability to do any prolonged standing, walking, sitting, bending, lifting, or carrying activities. The applicant argues that she has consistently reported these complaints to her family doctor, Dr. Mahjabeen Ammad, and has attended physiotherapy since the accident. The applicant relies on the April 11, 2022 re-assessment at Physiocare & Rehab which supports that she reported difficulty with sleeping, lifting, prolonged sitting, prolonged standing, bending, vacuuming, cleaning, cooking, and washing dishes as a result of the accident.

14The respondent submits that on April 5, 2021, less than four months after the accident, the applicant reported to Physiocare & Rehab that her condition had improved 75%. A year later, on May 11, 2022, the applicant reported again to Physiocare & Rehab that she was feeling a lot better since the accident. The respondent also relies on the s. 44 assessment report of general physician, Dr. James Stewart, on June 11, 2021. The applicant reported to Dr. Stewart that she had improved 60% since the accident but still had intermittent mid-back pain and neck/shoulder pain. Dr. Stewart found that the applicant sustained minor soft-tissue injuries as defined by the Schedule and he concluded that the applicant did not suffer from any functional limitations or physical restrictions as a result of the accident.

15The respondent submits that the applicant has continued to work full-time performing her pre-accident duties as an early childhood assistant (ECA) at a daycare, having only taken the occasional time off. The applicant also reported to Dr. Stewart that she was independent with personal care and was able to complete household chores with only some pain when vacuuming and cooking. The respondent argues that ongoing pain over a period of time coupled with frequent visits to a treatment provider is not sufficient grounds for her removal from the MIG, and the applicant has not met any of the criteria for a chronic pain condition as set out in the AMA Guides.

16Although the AMA Guides criteria are not legally binding, I am persuaded that the applicant does not have a chronic condition for the following reasons. The applicant is not excessively dependent on healthcare providers, spouse, or family and has exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. There is also no evidence of her reliance or overuse of prescription medication to manage her pain, other than taking over the counter Tylenol. The applicant continued to work after the accident in a physically demanding role as an ECA, and she has exhibited minimal symptoms of a psychological injury. The applicant has not demonstrated an inability to pursue work, social, or recreational needs as a result of physical insufficiency.

17I find that the clinical notes and assessment reports of Dr. Ammad and Dr. Stewart support only that the applicant suffers intermittent, and not constant, activity dependent pain since the accident. I also agree that ongoing pain over a period of time coupled with regular visits to a treatment provider is not sufficient to warrant the applicant’s removal from the MIG. For these reasons, I find on a balance of probabilities that the applicant cannot be removed from the MIG based on chronic pain.

Pre-Existing Conditions

18I find, on a balance of probabilities, that the applicant does not suffer from a pre-existing condition that would warrant removal from the MIG.

19To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to s. 18(2) of the Schedule. She must provide documented evidence of a pre-existing medical condition by a health practitioner, and she must also provide evidence that the pre-existing condition will prevent her from achieving maximal recovery from the minor injury if she is subject to the MIG limits.

20The applicant submits that she had pre-accident headaches and neck pain related to a trip and fall incident in May 2019 that have been aggravated by the accident. She submits that the effects of the accident on her neck were more impactful given her pre-accident issues with pain in that area. The applicant relies on a clinical note from her family doctor, Dr. Ammad, dated August 2, 2019 which indicates that she continued to complain of neck pain and headaches since the trip and fall incident a few months earlier.

21The respondent accepts Dr. Ammad’s clinical note dated August 2, 2019, but submits that it reflects the applicant’s report of only occasional neck pain related to a slip and fall earlier that year. The respondent also submits there is no evidence of any further report of this slip and fall or related injuries after August 2, 2019. In addition, the applicant has not provided any medical opinion that a pre-existing medical condition would preclude her from maximal medical recovery if she is kept within the MIG.

22I agree with the respondent and find that the mere mention of a pre-existing injury or that the injury has been exacerbated by the accident is not sufficient on its own to be removed from the MIG. Pursuant to s.18(2) of the Schedule, the applicant must provide documented evidence that the pre-existing condition will prevent maximal medical recovery if she is subject to the MIG. I find that the applicant has not met that onus, on a balance of probabilities.

Psychological Injuries

23I find no compelling evidence, on a balance of probabilities, demonstrating that the applicant suffers from a psychological injury as a result of the accident.

24The applicant submits that Dr. Ammad noted complaints of anxiety when driving and fear when approaching intersections after the accident. She argues that she requires psychological treatment, which is only accessible to her if she is removed from the MIG.

25The respondent submits that the applicant has only made one complaint to Dr. Ammad about anxiety related to driving on December 11, 2021. According to Dr. Ammad’s notes, the applicant reported that she felt scared at an intersection. The respondent submits that the applicant has not provided any evidence that she has been prescribed medication related to psychological issues or that she has received any psychological treatment, which supports that any accident-related psychological symptoms have not had any discernible impact on her functionality.

26I am not persuaded by the applicant’s evidence and submissions. Apart from one isolated clinical note by Dr. Ammad, dated almost a year after the accident, the applicant has not provided any other documentary evidence of an accident-related psychological injury, any evidence of the recommendation for psychological treatment or a psychological/psychiatric referral by a healthcare provider, or evidence that she has been prescribed any psychiatric medication. As such, I am not satisfied, on a balance of probabilities, that the applicant suffered an accident-related psychological injury that has impacted her function and would justify her removal from the MIG.

27I find that the applicant’s injuries have been rightly captured by the MIG definition in s. 3 of the Schedule and that she is entitled to treatment up to the MIG limits.

28The only treatment plan in dispute is $2,650.00 for chiropractic services proposed by Physiocare & Rehab on April 11, 2022.

29The respondent submits that there is $1.50 remaining in the MIG, and that $3,498.50 has been paid to the applicant to date. The applicant did not address the amount remaining the in MIG in her submissions.

30As I find that the applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury, she is entitled to treatment up to the MIG limits. The treatment plan in dispute, however, proposes treatment outside of the MIG limits and is therefore not payable.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are overdue, it follows that no interest is payable.

ORDER

32I find that the applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

33The applicant is not entitled to the proposed treatment plan for chiropractic services dated April 11, 2022, as it proposes treatment that is outside of the MIG.

34As no benefits are payable, the applicant is not entitled to interest.

35The application is dismissed.