Citation: De Vuono v. BelairDirect, 2024 ONLAT 22-009738/AABS

Licence Appeal Tribunal File Number: 22-009738/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:

Maria De Vuono

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Carlos Bernal, Paralegal

For the Respondent:

David Koots, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Maria De Vuono ("the Applicant") was involved in an automobile accident on September 27, 2018, and sought benefits from BelairDirect ("the Respondent") pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The Respondent characterized the Applicant's injuries as falling within the "minor injury" definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUES

3The preliminary issue in dispute is:

i. Is the Applicant barred from proceeding with her application to dispute entitlement to a treatment and assessment plan in the amount of $1,437.92, dated February 11, 2019, because she failed to dispute the denial of benefits within two years?

ISSUES

4The substantive issues in dispute are:

i. Are the Applicant's injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (the "MIG") and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $1,437.92 for a physiotherapy treatment plan proposed by Focus Physiotherapy, dated February 11, 2019?

iii. Is the Applicant entitled to medical benefits proposed by A&B Medical Assessments as follows:

a. $2,486.00 for a chronic pain assessment plan, dated August 26, 2022; and

b. $2,486.00 for an orthopaedic assessment plan, dated August 26, 2022?

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

RESULT

5I find that the Applicant sustained an injury that is not included in the minor injury definition in section 3 of the Schedule. According, she is not subject to the MIG and the $3,500.00 funding limit for a minor injury.

6The Applicant is barred from disputing her entitlement to the treatment and assessment plan in the amount of $1,437.92, dated February 11, 2019, pursuant to section 56 of the Schedule.

7The Applicant has not met her onus to demonstrate that the treatment and assessment plans are reasonable and necessary as a result of the accident. Accordingly, she is not entitled to the assessments.

8No interest is payable as no payments went overdue.

BACKGROUND

9The Applicant was a passenger of a vehicle which was struck on the passenger's side by a commercial delivery truck in a perpendicular fashion. She was taken from the scene of the accident to the hospital, via ambulance, due to complains of headache, neck, right shoulder, right hip, and other body pain. Imaging taking at the hospital showed a "high riding shoulder consistent with chronic complete supraspinatus tendon tear." The Applicant followed-up with her family physician the following day and was diagnosed with soft tissue injuries and referred for physiotherapy.

10Aside from the preliminary issue, the underlying issue at this hearing is whether the Applicant sustained a full thickness tear of her right shoulder as a result of the accident. If the Applicant sustained a full tear as a result of the accident, she would not be subject to the MIG and the $3,500.0 funding limit for a minor injury.

ANALYSIS

The Applicant is barred from disputing entitlement to the treatment and assessment plan in the amount of $1,437.92, dated February 11, 2019

11I find that the Applicant is barred from disputing entitlement to this treatment and assessment plan because it was denied more than two years prior to submitting her application.

12Pursuant to section 56 of the Schedule, an application in respect of a benefit under the Schedule shall be commenced within two years of the denial.

13I find that the Treatment and assessment plan was denied by the Respondent by letter dated February 19, 2019. The letter identifies the treatment plan and confirms that the Respondent will not pay for the goods and services based on an insurer's examination ("IE"), completed November 23, 2018. This is a clear an unequivocal denial which starts the limitation clock. The application to dispute this denial was made on September 6, 2022, more than three and a half years following the denial.

14I find that the subsequent denial, dated January 15, 2021, does not upset or restart the limitation clock. The Respondent's letter of January 15, 2021 confirms the position that the treatment and assessment plan in the amount of $1,437.92 is not reasonable and necessary following a subsequent IE. This is an example of the Respondent upholding its ongoing obligation to adjust a file and does not reset the limitation clock.

15The Applicant has provided no rationale to permit her late application. Section 7 of the Licence Appeal Tribunal Act (the "LAT Act") permits me to extend the limitation period when considering the length of delay, whether there was a bona fide intention to appeal within the appeal period, the prejudice to the other side, and the overall merits of the appeal. Having provided no submissions on extending the deadline to file an appeal, it follows that the Applicant has not met her onus to demonstrate that an extension of the limitation period should be granted in her situation.

Minor Injury Guideline ("MIG")

16The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

17The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

18For the following reasons, I find that the Applicant's complete supraspinatus tendon tear is as a result of the accident. A full thickness tear is not a minor injury. Accordingly, she is not subject to the MIG and the $3,500.00 funding limit for a minor injury.

Full thickness tear is as a result of the accident

19I find that the Applicant's full thickness tear of her right shoulder is as a result of the subject accident.

20The clinical notes and records ("CNRs") of the Applicant's family physician fail to demonstrate ongoing issues leading up to the accident to rationalize a full thickness tear, as there are only two right arm issues identified in the CNRs. In July 2016, the Applicant complained on right arm pain from gardening, and a May 15, 2018 entry where the Applicant complained on right shoulder pain, but the physician considered that it was likely inflammation and ordered no investigations or further treatment. The lack of pre-accident complaints and imaging related to the right shoulder cause me to conclude on a balance of probabilities that the issue does not pre-date the accident, as the Respondent suggests.

21I give no weight to the IE report of Dr. L. S. Corrin, physician, dated January 22, 2019 because it failed to provide a fulsome account for the Applicant's right shoulder issues. The report does not include a full thickness tear in the list of accident-related injuries, nor in the list of pre-existing injuries. Dr. Corrin's report includes reference to the bilateral shoulder ultrasound in which a full thickness tear is suspected, and the hospital imaging which stated that she had a "high riding shoulder consistent with chronic complete supraspinatus tendon tear". But there is no opinion by Dr. Corrin regarding a tear in the Applicant's right shoulder – whether it is accident-related, a pre-existing condition, or whether it would impact the Applicant's recovery if subject to the MIG. Considering the findings of the ultrasound and the emergency records, it is incumbent upon the assessor to provide additional insight regarding the Applicant's right shoulder injury. The fact that Dr. Corrin never gave this insight is fatal to the overall persuasiveness of the report.

22Similarly, when considering whether the Applicant is subject to the MIG, I give no weight to the report of Dr. S. Tu, physician, dated December 29, 2020. Dr. Tu discounted the full thickness tear of the Applicant's right shoulder on account that the imaging has poor visibility and suboptimal quality, and because the hospital records characterized her high riding shoulder as consistent with a chronic complete supraspinatus tendon tear. However, as discussed previously, there are no records pre-dating the accident that indicate ongoing right shoulder pathology to attribute the complete tear to and the records from a visit immediately following the accident note the Applicant's difficulty lifting above her shoulders. Considering these findings, I conclude on a balance of probabilities that the complete thickness tear of the Applicant's right shoulder is as a result of the accident.

23A full-thickness tear of the right shoulder is an injury that is not included in the definition of a minor injury. The definition of a minor injury, as indicated in section 3 of the Schedule includes a "strain". A "strain" is further described in the MIG. There, it states that a strain is an injury to one or more muscles, including a partial but not a complete tear. Isolating a "complete tear" from the definition causes me to conclude that a full thickness tear is akin to a complete tear and is therefore not a minor injury.

24Having concluded that the Applicant sustained a complete thickness tear of her right shoulder, it follows that it is not necessary to analyse as to whether she sustained a psychological injury or chronic pain as it relates to whether the Applicant is subject to the MIG.

Chronic pain and orthopaedic assessment plans, dated August 26, 2022

25I find that the Applicant has not met her onus to demonstrate that the chronic pain and orthopaedic assessment plans are not reasonable and necessary as a result of the accident.

26The Applicant's submissions on her entitlement to these assessments are far too vague to consider. She simply states that they are reasonable and necessary pursuant to the evidence she presented. She has not addressed how or why chronic pain and orthopaedic assessments are reasonable and necessary. There is insufficient information before me to make a finding that the assessments are reasonable and necessary as a result of the accident. Accordingly, I find that the Applicant is not entitled to the chronic pain and orthopaedic assessments.

Interest

27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits are payable, it follows that no interest is payable.

CONCLUSION AND ORDER

28The Applicant sustained a complete tear of her right supraspinatus. This is an injury that in not included in the minor injury definition. Accordingly, she is not subject to the MIG and the $3,500.00 funding limit for a minor injury.

29The Applicant is barred from disputing her entitlement to the treatment and assessment plan in the amount of $1,437.92, dated February 11, 2019, pursuant to section 56 of the Schedule.

30The Applicant has not met her onus to demonstrate that the treatment and assessment plans are reasonable and necessary as a result of the accident. Accordingly, she is not entitled to the assessments.

31No interest is payable as no payments went overdue.