Licence Appeal Tribunal File Number: 22-006188/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:
Erica Kim
Applicant
And
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gareth Neilson
APPEARANCES:
For the Applicant:
Micheal Lee, Counsel
For the Respondent:
Ainsley Shannon, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Erica Kim, the applicant, was involved in an automobile accident on July 27, 2018, 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, 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?
ii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Humber River Diagnostics in a treatment plan dated November 26, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor and, therefore, are subject to treatment within the MIG.
4The applicant is not entitled to $2,200.00 for a psychological assessment or to interest.
PROCEDURAL ISSUES
5In her hearing submissions, the applicant sought to add an issue in dispute. The applicant’s position was that the issue should be added because the case conference adjudicator erred by noting that the issue had been withdrawn in the case conference report and order. The respondent opposed the request and submitted that the applicant should have brought a motion to the Tribunal if she believed there was an error in the case conference report and order. Further, the respondent submitted that trying to add an issue in dispute at the hearing is procedurally incorrect and prejudicial to the respondent.
6I agree with the respondent. The applicant should have brought a motion to the LAT if she believed an error had occurred. The applicant had approximately eight months to bring such a motion to the LAT. The request to add an issue in dispute is denied.
7The applicant sought to exclude pages 11-14 of the respondent’s written submissions, as Adjudicator Griffith in the CCRO dated March 16, 2023 limited the written submissions to 10 pages. While I agree with the applicant that the respondent violated the order of Adjudicator Griffith, the applicant did not satisfy their onus and therefore the breach of the order is moot.
ANALYSIS
The Minor Injury Guideline (MIG)
8The applicant did not prove on a balance of probabilities that her accident related injuries warrant removal from the MIG.
9Section 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.”
10An 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 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.
11The applicant seeks to be removed from the MIG because they have a well documented pre-existing injury and the medical evidence shows that the pre-existing injury precludes recovery with the confines of the MIG.
a) Pre-existing condition
12The applicant has failed to prove that based on the balance of probabilities that the applicant should be removed from the MIG because 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.
13The applicant has an extensive pre-accident medical history. The applicant was diagnosed with cancer and underwent a mastectomy, chemotherapy, and other cancer-related treatments and experienced their side effects. The applicant was diagnosed with depression and relied on a significant dose of opioids.
14The applicant primarily relies on the reports of Dr. Ng, Dr. Ko, Dr. Chang and Dr. Hannon. The applicant argues that the doctors’ reports show that the applicant had significant pre-existing medical conditions, the accident has exacerbated her injuries and prolonged the recovery time period.
b) Chronic pain
The respondent argues that the applicant does not have chronic pain as defined under the 6th edition of the AMA Guides.
I agree with the respondent that the applicant does not meet the criteria needed to be diagnosed with chronic pain as a result of this accident. The applicant has failed to show that they have more than intermittent pain or a significant functional reduction as a result of the accident. The 6th edition of AMA Guides require the applicant to meet 3 out of 6 diagnostic criteria to be considered to have chronic pain. The applicant has not been able to meet this burden of proof.
c) Psychological impairment
In addition, the applicant argues that the accident created a significant psychological impairment which requires anti-depressants.
Lastly, while the applicant has argued that the psychological impairment should warrant removal from the MIG, the have not shown that on the balance of probabilities, the accident was the cause of any psychological impairments, that the applicant may have.
15The respondent relies on reports by Occupational Therapist Birbrager, Dr. Levy, Dr. Rubenstein and Dr. Pohani. The respondent argues that the applicant did not have a dependence on the healthcare system for any accident related injuries, only using $1,392.55 of the $ 3,500.00 available. Rather, the applicant received treatment for injuries unrelated to the motor vehicle accident.
16I prefer the evidence and reasoning given by the respondent as it is unclear whether any of the ailments suffered by the applicant are related to the accident, the pre-existing medical conditions or both. The applicant suffers from intermittent pain which was not severe enough for her to leave her place of employment. The level of activities of daily living exhibited by the applicant do not show someone who suffers from chronic pain as a result of this accident. The applicant has not been able to meet its burden of proof that they should be removed from the Minor Injury Guideline.
17The applicant’s injuries are 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.
The applicant is not entitled to $2,200.00 for a psychological assessment
18The applicant has failed to meet her onus to prove on a balance of probabilities that the psychological assessment in dispute is reasonable and necessary as a result injuries sustained in the accident.
19To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
20As I have found that the applicant's accident-related injuries are minor, it is not necessary for me to determine whether the treatment plan is reasonable and necessary. The assessment is not payable.
21The applicant is not entitled to $2,200.00 for a psychological assessment because I have determined that the applicant’s accident related injuries are minor.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are due and owing, the applicant is not entitled to interest.
ORDER
23I order the following:
i. The applicant’s injuries are within the MIG; and
ii. The applicant is not entitled to $2,200.00 for a psychological assessment or interest.
iii. The applicant is dismissed.
Released: December 19, 2024
__________________________
Gareth Neilson
Adjudicator