Shepherd v. Intact Insurance Company, 2024 CanLII 123338

Licence Appeal Tribunal

Citation: Shepherd v. Intact Insurance Company, 2024 ONLAT 23-014441/AABS

Licence Appeal Tribunal File Number: 23-014441/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:

Shivon Shepherd

Applicant

and

Intact Insurance Company

Respondent

DECISION

PANEL:

Jeremy Roberts

Nathan Prince

APPEARANCES:

For the Applicant:

Shivon Shepherd, Applicant (Self-represented)

For the Respondent:

Lori J. Sprott, Counsel

Heard by Videoconference:

October 7, 2024

OVERVIEW

1Shivon Shepherd, the applicant, was involved in an automobile accident on February 9, 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, Intact Insurance Company, 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 treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from September 28, 2020 to date and ongoing?

iii. Is the applicant entitled to $521.24 for chiropractic services, proposed by Total Health Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted April 7, 2021 and denied May 25, 2022?

iv. Is the applicant entitled to $4,537.51 for chiropractic services, proposed by Point Grey Physiotherapy in a plan submitted January 7, 2022 and denied January 31, 2022?

v. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Innovative Occupational Therapy in a plan submitted March 6, 2022 and denied March 24, 2022?

vi. Is the applicant entitled to $2,200.00 for a social work assessment, proposed by Critical Trauma Therapy in a plan submitted August 22, 2023 and denied September 27, 2023?

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

RESULT

3The applicant has not established that her accident-related impairments warrant removal from the MIG.

4The applicant is not entitled to income replacement benefits.

5The applicant is not entitled to the treatment plans in dispute.

6No interest is payable.

ANALYSIS

The applicant has not demonstrated that she warrants removal from the MIG

7We find that the applicant is subject to the MIG because she did not meet her onus of demonstrating, on a balance of probabilities, that she sustained an accident-related impairment that is not a minor injury.

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.

10The applicant submits that she should be removed from the MIG because of various impairments which have developed over time after the accident. The applicant submits she has a range of symptoms including headaches, abdominal pain, non-epileptic seizures, loss of peripheral vision, blurred vision, Eagle syndrome, and idiopathic intercranial hypertension (“IIH”). The applicant sought medical attention for these symptoms in the United States from Caring Medical Florida, Stand-up MRI, and NYU hospital, and she relies on medical records from these caregivers in support of her position that her injuries fall outside of the MIG.

11The respondent submits that the injuries sustained in the accident are soft tissue injuries which fall within the definition of a minor injury. It supports this position with reference to several diagnostic CT scans that were conducted after the accident, all of which returned negative or normal results. It further submits that the applicant has not met her burden of showing that her current symptoms are accident related. It relies on the CNRs of NYU hospital, Caring Medical Florida, Scarborough Health Network (“SHN”), University Health Network, Sunnybrook Heal Sciences Centre (“SHSC”) and the section 44 reports of Dr. Safir who found that the applicant sustained sprain/strain injuries.

12We agree with the respondent and find that the applicant has not demonstrated on a balance of probabilities that her accident-related impairments fall outside the MIG.

13The applicant did not point us to any contemporaneous diagnostic imaging that would contradict the respondent’s conclusion that the applicant suffered only soft-tissue injuries. While we acknowledge the impairments described by the applicant, we find that the medical evidence she has provided does not support the position that her symptoms are related to the accident. In reaching this conclusion, we note that while the MRI conducted by Stand-up MRI and CNRs from NYU hospital indicate the applicant has IIH, these records are from over four years post-accident. We find that given the passage of time and lack of corroborating evidence; this MRI does not establish that the IIH impairment is accident related. Moreover, a neuro-ophthalmology consultation at SHSC in December of 2021 indicates that the applicant had the demographic risk factors for IIH, which we find is also evidence in support of a finding that the IIH is not the result of the accident of February 2020. With respect to the applicant’s other purported impairments, she did not submit evidence that would support the position that these are accident related.

14Furthermore, we find the expert reports of Dr. Safir persuasive because they involved a thorough review of the medical records and an in-person assessment, leading Dr. Safir to conclude that the applicant suffered sprain/strain injuries as a result of the accident. The applicant did not point us to any contemporaneous medical evidence which would contradict the findings of Dr. Safir.

15Based on the lack of medical evidence tying the applicant’s purported impairments to the accident and the persuasive medical evidence provided by the respondent, and in particular the expert reports of Dr. Safir, we find that the applicant’s injuries are minor injuries as defined in section 3(1) of the Schedule.

16As such, on a balance of probabilities, the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.

The applicant is not entitled to income replacement benefits (“IRBs”)

17We find that the applicant has not demonstrated that she meets the test for IRBs.

18The applicant is claiming both pre and post-104 week IRBs.

19To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of her employment, which tasks she is unable to perform and to what extent she is unable to perform them.

20To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. The applicant bears the burden of proving, on a balance of probabilities, that she meets these tests.

21At the time of the accident, the applicant was working two jobs: a warehouse associate with Addeco Employment Services (“Amazon”) and a customer service representative with Arrow Workforce Solutions Inc. (“Reliance”). The applicant testified that she continued to work with Reliance after the accident on a full-time basis before transferring to Nardia Inc. (“Bell”) where she worked until June of 2022.

22The applicant testified that she was unable to continue working as a warehouse associate with Amazon. An OCF-3, submitted by chiropractor Dr. Daniel Chan indicated that the applicant was substantially unable to complete the essential tasks of her employment at Amazon. She further argued that her various impairments now lead to significant periods of time where she can barely get out of bed and that she experiences loss of speech, which lead to an inability to engage in any employment. However, the applicant did not identify the essential tasks of her employment which she was unable to perform.

23The respondent submits that the applicant has not met her onus of demonstrating that she meets the test for IRBs. It relies on the section 44 reports of Dr. Safir and Dr. Becker and the clinical notes and records (“CNRs”) of treating general practitioner Dr. Vellathottam. Given that the applicant had returned to work post-accident, Dr. Safir found that she does not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a customer service representative, from a musculoskeletal perspective. With respect to the applicant’s employment with Amazon, Dr. Safir opined that she should be capable of resuming her employment and that there are no medical contraindications to resuming her employment, from a physical perspective. The functional abilities evaluation conducted by Dr. Becker supports the findings of Dr. Safir. Specifically, Dr. Becker found that the applicant met the job demands of her pre-accident jobs as a warehouse associate and customer service representative. Finally, the respondent points us to the CNRs of Dr. Vellathottam, who saw the applicant on March 29, 2023 and indicated that the applicant was “fit for sedentary duties”.

24We find that the applicant has not met her onus of demonstrating that she is entitled to IRBs.

25With respect to pre-104 IRBs, the applicant did not identify which essential tasks of her employment she was unable to perform or to what extent she was unable to perform them. Moreover, she did not point us to any medical evidence which would suggest that she was substantially unable to perform the essential tasks of her employment or that support the symptomology she described as being accident related. As such, we find the applicant has not met her onus of demonstrating that she is entitled to pre-104 IRBs.

26With respect to post-104 IRBs, the respondent has proffered evidence from independent assessors indicating that the applicant is able to return to work. We are persuaded by the respondent’s section 44 reports as they involved in-person assessments of the applicant and a thorough review of the medical file. In contrast, the applicant failed to provide compelling, contemporaneous medical evidence to support her claim that she suffered from accident-related impairments that precluded her return to any employment for which she was reasonably trained or suited. In fact, the applicant’s treating general practitioner has indicated that the applicant is fit for sedentary duties. As such, we find that the applicant does not suffer from a complete inability to engage in any employment.

27We find that the applicant has not met her burden of proving entitlement to IRBs.

The applicant is not entitled to the treatment plans in dispute

28As we have found the applicant to remain within the MIG she is not entitled to treatment beyond the MIG limits. As the MIG limits have been exhausted, she is not entitled to the treatment plans in dispute.

The applicant is not entitled to interest

29As there are no payments owed, the applicant is not entitled to interest.

ORDER

30For the reasons above, we find that:

i. The applicant’s injuries fall within the MIG;

ii. The applicant is not entitled to income replacement benefits;

iii. The applicant is not entitled to the treatment plans in dispute;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.