Citation: Patterson v CAA Insurance Company, 2024 ONLAT 22-013557/AABS

Licence Appeal Tribunal File Number: 22-013557/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:

Julia Patterson

Applicant

and

CAA Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Lorne Climans, Counsel

For the Respondent: Ethan Edwards, Counsel

HEARD: By way of written submissions

OVERVIEW

1Julia Patterson ("the Applicant") was involved in an automobile accident on March 30, 2021, and sought benefits from CAA Insurance Company ("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.

ISSUES

3The 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 $1,302.40 for a physiotherapy treatment plan proposed by DRS Physio and Wellness in a treatment and assessment plan dated April 25, 2022?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,812.48 for a physiotherapy treatment plan proposed by DRS Physio and Wellness in a treatment and assessment plan dated May 16, 2022?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,050.00 for a physiotherapy treatment plan proposed by Focus Physiotherapy in a treatment and assessment plan dated September 13, 2022?

v. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment proposed by Finch Health Centre in a treatment and assessment plan dated February 28, 2023?

vi. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonable withheld or delayed the payment of benefits to the Applicant?

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

RESULT

4The 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 treatment and assessment plans in dispute because they propose goods and services which fall outside the MIG.

6No interest and no award are payable.

Background

7The Applicant was the driver of a vehicle which was struck from behind while stopped at a suburban traffic light. She sought no medical attention at the scene of the accident or that day, but visited her family physician, Dr. F. Asekomhe two days later with complaints of headaches, jaw pain, and back pain. Dr. Asekomhe assessed the Applicant and referred her to physiotherapy and prescribed Naproxen. Despite the referral, the Applicant waited nearly 10 months before engaging in physiotherapy for her accident-related injuries, pursuant to the MIG.

8The Applicant claims that she should not be subject to the MIG and the $3,500.00 funding limit for a minor injury because she has pre-existing back, neck, and shoulder pain, as well as other conditions such as type 2 diabetes, hypertension, and anxiety, which precludes her recovery if subject to the MIG. Alternatively, she submits that she now suffers from a chronic pain condition as a result of the accident and that this is an injury that is not included in the minor injury definition.

9The Respondent submits that the existence of pre-existing health conditions does not automatically preclude the Applicant's recovery if subject to the MIG and the funding limit. It submits that there remains the obligation to provide compelling evidence demonstrating that the Applicant's pre-existing health condition impacted her ability to recover if subject to the MIG and the $3,500.00 funding limit. It further submits that there is no compelling evidence of causation between the accident and the Applicant's chronic pain.

10I find that the Applicant has not demonstrated that she sustained an injury that is not included in the minor injury definition. Accordingly, I find that she is subject to the MIG and the $3,500.00 funding limit for a minor injury.

ANALYSIS

Minor Injury Guideline ("MIG")

11The 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.

12The 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.

Pre-existing condition and chronic pain

13I find that the Applicant has not demonstrated that her pre-existing health condition precludes her recovery within the MIG. Further, I find that her chronic pain is not as a result of the accident.

14The Applicant's health history is significant for pre-existing neck, back, and shoulder pain. By 2018, she had injured her neck, back, and right wrist while working as a personal support worker. As a result, she was placed on permanent work restrictions with respect to lifting, carrying, pushing, pulling, grasping, and pinching, by the Workplace Safety Insurance Board ("WSIB"), effective November 2019. The Applicant also developed right shoulder issues at this time, or shortly thereafter. These issues continued, and on August 11, 2020, the Applicant was diagnosed with right rotator cuff syndrome and tendonitis. On February 7, 2021, less than two months prior to the accident, the Applicant met with Dr. Asekomhe regarding her issues with WSIB, and she was advised to engage in physiotherapy, massage therapy, and get legal help with respect to her WSIB claim.

15There is no evidence indicating that Dr. Asekomhe, or any other primary healthcare provider, concluded that the Applicant's pre-existing chronic pain precludes her recovery if subject to the MIG. The Applicant met with Dr. Asekomhe two days after the accident, was examined and diagnosed with musculoskeletal pain, and prescribed naproxen and advised to continue physiotherapy and massage therapy. There is no indication that the accident, or the Applicant's pre-existing health condition, would have any impact on the other. In fact, the Applicant met with Dr. Asekomhe at least six times in the following year with various pain and other complaints, yet the subject accident is never mentioned. It is only on April 28, and May 16, 2022, more than a year later, when the subject accident is connected to the Applicant's current presentation. I am unable to conclude that the Applicant's current presentation is caused by the accident based on these two notes because the two notes are outweighed by the numerous other references in Dr. Asekomhe's CNRs which clearly connect the Applicant's current presentation to her multiple injuries pre-dating the accident, as identified by the WSIB.

16Likewise, there is no indication that the Applicant's ongoing chronic illnesses impact her recovery if subject to the MIG. Dr. Asekomhe's CNRs are absent of any notation that the Applicant's pre-existing type 2 diabetes, hypertension, and anxiety preclude her recovery from minor soft-tissue injuries sustained in the Accident. The Applicant reported the accident to Dr. Asekomhe, but the CNRs from that visit, and the entries thereafter, do not make any connection between the Applicant's pre-existing condition and her recovery from soft-tissue injuries.

17I find the report of Dr. A. Belfon, physician, dated July 19, 2022, to be consistent with the balance of the Applicant's medical record and prefer it over the report of Dr. D. Brooks, dated April 18, 2023. Dr. Belfon assessed the Applicant and determined that she sustained sprain and strain injuries as a result of the accident. It was noted that the Applicant reported that her pre-existing injuries were different than her accident-related injuries, and Dr. Belfon concluded that the pre-existing issues would not impact her recovery if subject to the MIG. Dr. Belfon maintained the same position in an addendum report, dated February 8, 2023, in which Dr. Asekomhe's CNRs for the period from July 2010 to October 2022 were reviewed for further comment.

18I give virtually no weight to the report of Dr. D. Brooks, physician, dated April 18, 2023. Dr. Brooks never provided any rationale on the Applicant's pre-existing conditions and how they would influence her current presentation. Instead, Dr. Brooks attributes all of the Applicant's current symptomology to the subject accident, including chronic pain. This mistaken finding is made despite having the opportunity to review the Applicant's extensive medical records, including the CNRs of Dr. Asekomhe, which include multiple references to workplace injuries and an ongoing dispute with the WSIB. Dr. Brooks' failure to clearly address the cause of the Applicant's current presentation is fatal to the overall persuasiveness of the report, given the clear and present injuries pre-dating the accident as outlined in Dr. Asekomhe's CNRs.

19Accordingly, I find that the Applicant has not demonstrated that she suffers from a pre-existing health condition which would preclude her recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury. Likewise, I find that the Applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident. Her injuries are rightfully characterized as a minor injury.

The Applicant is not entitled to the treatment and assessment plans

20The treatment and assessment plans in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The Applicant is not entitled to these benefits because she sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.

Interest

21Interest 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

22The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

23The Applicant is not entitled to the treatment and assessment plans in dispute, nor interest.

24The application is dismissed.