Licence Appeal Tribunal File Number: 22-010684/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:
Rochelle Pugne
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
For the Applicant:
Lawrence Calenti, Counsel
For the Respondent:
Sivan Bune, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1Rochelle Pugne, the applicant, was involved in an automobile accident on September 30, 2021 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 to be decided in this hearing 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 limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,585.63 for chiropractic services, proposed by Toronto North Rehab in a treatment plan/OCF-18 (“plan”) dated October 21, 2021?
iii. Is the applicant entitled to $2,291.91 for chiropractic services, proposed by Toronto North Rehab in a plan dated December 20, 2021?
iv. Is the applicant entitled to $1,495.05 for chiropractic services, proposed by Toronto North Rehab in a plan dated January 17, 2022?
v. Is the applicant entitled to $87.19 ($1,382.41 less $1,295.05) approved for chiropractic services, proposed by Toronto North Rehab in a plan dated February 8, 2022?
vi. Is the applicant entitled to $1,189.55 for chiropractic services, proposed by Toronto North Rehab in a plan dated April 2, 2022?
vii. Is the applicant entitled to $983.81 for chiropractic services, proposed by Toronto North Rehab in a plan dated May 31, 2022?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s impairments are predominantly minor as defined by the Schedule and are subject to the treatment limits of the Minor Injury Guideline (“MIG”).
4As the MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.
5As no benefits are owing, no interest is payable.
ANALYSIS
minor injury guideline
6The applicant submits that her injuries fall outside of the minor injury definition, based on two grounds: a concussion resulting from the accident, and concussions resulting from past injuries, which prevent her recovery under MIG limits. The applicant also references physical injuries resulting from the subject accident, but it is unclear whether she is arguing that it is grounds for removal from the MIG. As the reference to physical injuries have not clearly been established as an individual argument for MIG removal on the basis of chronic pain with functional impairment, I did not consider it in my decision regarding removal from the MIG.
7The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
8Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that they have a pre-existing condition, documented by a medical practitioner, that prevents maximal medical recovery under the MIG, or if they provide evidence demonstrating that their injuries are not included in the minor injury definition.
9The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG: Scarlett v Belair Insurance, 2015, ONSC 3635 at paragraph 20.
Did the applicant sustain a concussion from the subject accident that would remove her from the MIG?
10Upon a review of the submissions and evidence, I find that the applicant has not adduced sufficient evidence to establish that she experienced a concussion as a result of the subject accident which would warrant her removal from the MIG.
11The applicant submits that she sustained a concussion from the subject accident that would warrant her removal from the MIG. Concussions, if established, may fall outside of the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include concussions.
12Dr. Xavier Medina, documented the applicant symptoms in his report dated October 5, 2021, as “headache off and on” and “no dizziness, no vomiting.” The applicant claims that Dr. Medina communicated to her orally that she had suffered a concussion, but this was not indicated in his report. As a result, the applicant asserts that Dr. Medina diagnosed her with a concussion, which warrants her removal from the MIG.
13Further, the applicant submits she was diagnosed with a concussion by chiropractors at North Toronto Rehabilitation. In contrast, the respondent submits that the applicant has not produced documentation confirming a formal diagnosis of a concussion from a healthcare practitioner whereby such a diagnosis falls within their scope of practice (e.g., family doctor or neurologist).
14Although the applicant states she was diagnosed with a concussion by chiropractors at North Toronto Rehabilitation, and orally by Dr. Medina, I agree with the respondent that it is not within the scope of a chiropractor to diagnose a concussion, nor was there an official concussion diagnosis from Dr. Medina.
15To escape the MIG, a concussion diagnosis requires the development of ongoing, substantive, and residual symptoms or clinically significant psychological distress. Although there is some evidence to suggest that the applicant may have suffered some psychological sequelae, or consequences, immediately after the accident, a measure of psychological impact is expected to accompany minor injuries and is specifically contemplated in the MIG’s “functional restoration approach.”
16As a result, on a balance of probabilities, I find that the applicant has failed to establish that she sustained a concussion which caused ongoing, substantive, and residual symptoms or clinically significant psychological distress, as a result of the subject accident which would remove her from the MIG.
Did the applicant sustain a physical injury from the subject accident that would remove her from the MIG?
17I do not find that the applicant suffered a physical injury that caused functional impairment to the extent that would warrant her removal from the MIG.
18The applicant submits that, although the treatment incurred goes beyond the MIG limits, it was reasonable and necessary because it allowed her to return to work and day-to-day activities.
19The applicant saw Dr. Medina shortly after the subject accident and reported neck and back pain. Dr. Medina referred the applicant to North Toronto Rehabilitation for physiotherapy, massage, and chiropractic services. The applicant indicates in their written submissions that as of July 2023, her neck and back pain had largely resolved. The applicant appears to have returned to work and day-to-day activities.
20To be removed from the MIG for physical injuries, the applicant must prove on a balance of probabilities, not only that she experienced chronic pain, but that such pain has caused a functional impairment.
21As a result, on a balance of probabilities, I find that the applicant has failed to establish that she sustained a physical injury that would remove her from the MIG.
Does the Applicant have a Pre-Existing Condition that would Prevent Maximal Recovery under the MIG?
22I find that the applicant did not have a pre-existing medical condition which would prevent her from achieving maximal medical recovery within the MIG, under s.18(2) of the Schedule.
23The applicant’s submissions on the MIG imply that her prior injuries were exacerbated by the subject accident on September 30, 2021, which warrants her removal from the MIG. The applicant relies on an urgent care visit from 2019 by Dr. Ali Ansari as well as the submissions in her affidavit.
24The applicant submits that she experienced several concussions prior to the subject accident. On June 8, 2019, the applicant was injured playing softball and was assessed by Dr Ansari. Dr Ansari assessed her with experiencing a “concussion headache.” In contrast, paragraph 16 of the applicant’s affidavit states “my symptoms gradually improved after about one week” (after the June 8th injury).
25The applicant submits that she experienced two other concussions resulting from skiing injuries in 2017 and 2018. However, as the respondent notes, there is no documentation confirming a formal diagnosis of a concussion from a healthcare practitioner whereby such a diagnosis falls within their scope of practice.
26I find that although the applicant has evidence that she suffered from a concussion headache, and other concussion(s), prior to the subject accident, she has not met her requirement under s.18(2) of providing compelling medical evidence from any treating medical practitioner opining that this pre-existing injury would impact on her ability to achieve maximal medical recovery under the MIG.
27Further, the existence of a pre-existing injury and a potential exacerbation of the pre-existing injury on its own, does not remove an applicant from the MIG. Without additional medical evidence that the applicant’s concussions sustained prior to the subject accident would preclude maximal medical recovery within the MIG, I find that the applicant has not adduced sufficient evidence to establish that her pre-existing injury warrants removal from the MIG.
28As I found the applicant has failed to prove that her symptoms resulting from the subject accident warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s.51 of the Schedule.
30As no benefits are overdue, no interest is payable under s. 51.
ORDER
31For the reasons outlined above, I find that:
i. The applicant’s injuries fall within the MIG.
ii. The applicant is not entitled to the disputed treatment.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: November 21, 2024
Sarah Guergis
Adjudicator