Citation: Letoya vs. The Personal Insurance Company, 2024 ONLAT 22-009646/AABS

Licence Appeal Tribunal File Number: 22-009646/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:

Naisola Letoya

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Jae Hyon Cho, Counsel

For the Respondent:

Laura Bassett, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Naisola Letoya, the applicant, was involved in an automobile accident on November 22, 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, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The accident occurring on November 22, 2018, involved the applicant being rear-ended in a parking lot as set out in the Application for Accident Benefits (OCF-1) dated November 6, 2019. The applicant appears to have been involved in more than one accident and the evidence seems to relate to another accident occurring on February 3, 2018, in which the applicant was a cyclist.

ISSUES

3The 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 respondent indicates in their written hearing submissions that $3,405.00 remain under the MIG limit.

ii. Is the applicant entitled to $2,200.00 for a psychiatric and chronic pain assessment, proposed by Direct Comfort Ltd., in an OCF-18/ treatment plan (“plan”) submitted on May 24, 2022, and denied on June 7, 2022?

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

RESULT

4The applicant has not demonstrated on a balance of probabilities that removal from the MIG is warranted for her accident-related injuries.

5The applicant is not entitled to the disputed plan for a psychiatric and chronic pain assessment or interest.

ANALYSIS

Applicability of the MIG

The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG

6Section 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 in accordance with the MIG. 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.”

7An 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 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.

8The applicant submits that she sustained injuries to her neck, back, left shoulder, left hip and left knee, and she has fatigue, anxiety, depression and sleep disturbance as a result of the November 22, 2018, accident, in which she was a cyclist. The applicant further submits she was not involved in any prior accidents.

9The applicant submits that she should be removed from the MIG based on her diagnosis of chronic pain and her psychological injuries as a result of the November 22, 2018, accident.

10The applicant relies on a report dated October 7, 2022, by Dr. Jinoos Jianfar, general practitioner and Dr. Mohammad Mohsini, chiropractor, a report dated May 5, 2022, by Dr. Ayih Seif, psychiatrist and a consultation report dated December 10, 2018, by Dr. Mohammad Ghazavi, orthopaedic surgeon.

11The respondent submits that the applicant’s injuries to her left shoulder, left hip, left arm, left knee and numbness to her left leg are related to a previous motor vehicle accident occurring on February 3, 2018. The respondent points out that all the medical evidence is related to the earlier accident.

12I find that the applicant has not met her onus because the evidence that is before me relates to injuries from an earlier accident in February 2018. I find that the reports of Dr. Jianfar, Dr. Mohsini, Dr. Seif and Dr. Ghazavi speaks to the applicant’s injuries from the prior accident.

13The applicant submits that she sustained injuries to her neck, back, hip, left knee, left shoulder and depression and sleep disturbance as a result of a motor vehicle accident in which she was struck as a cyclist at the intersection of King Street and Spadina Avenue, in Toronto. The reports on which the applicant relies for removal from the MIG were prepared in relation to the accident that occurred on February 3, 2018, not the accident on November 22, 2018, that is the subject of this application. The reports before the Tribunal were prepared for an unrelated accident for a claim with a different insurer. I therefore place no weight on these reports because they do not speak to the impairments sustained by the applicant in the subject accident.

14The applicant also relies on a consultation report by Dr. Ghazavi, orthopaedic surgeon. The applicant’s family physician, Dr. Jamal Aboujamra referred her to Dr. Ghazavi for low back pain on July 16, 2018, which was also before the November 22, 2018, accident. The report of Dr. Ghazavi refers to the applicant’s complaints regarding her accident in which she was struck by a car while walking on the street, which appears to refer to another accident. I therefore place no weight on this report because it also fails to speak to the impairments sustained by the applicant in the subject accident.

15The respondent submits that the applicant’s injuries are related to the February 3, 2018, accident. The respondent further submits that the applicant’s description of the November 22, 2018, accident in her written hearing submissions is incorrect because the OCF-1, dated November 6, 2019, regarding the accident of November 22, 2018, indicates that the applicant was rear-ended in a parking lot. The November 6, 2019, OCF-1 also contradicts the applicant’s submissions that she was not involved in any prior accidents. The OCF-1 indicates that the applicant has pre-existing conditions involving her left shoulder, left hip, left arm, left knee and numbness to her left leg.

16Further, the respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain or psychological impairments as a result of the subject accident to warrant removal from the MIG.

17I agree that the applicant has not submitted medical documentation that supports her position that she should be removed from the MIG on the basis of chronic pain or a psychological impairment as a result of the November 2018 accident. I find that the applicant’s medical records from her treating physicians, Dr. Jamal Aboujamra and Dr. Mark Waite and treatment providers at Max Health Institute and Physiotherapy all refer to her injuries from a different accident or accidents. Further, I find that the applicant’s OCF-1 for the November 22, 2018, accident appears to involve a rear-end collision and the medical evidence describes her injuries from an unrelated accident or accidents in which she was a cyclist or pedestrian.

18Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG due to the absence of any consistent findings in support of a chronic pain with functional impairment or psychological diagnosis.

19The applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, however, since the amount of $3,405.00 remain under the MIG limit, she is entitled to treatment up to the MIG limits.

Entitlement to treatment plan for a psychiatric and chronic pain assessment

20I note that the treatment plan is not in evidence. However, the applicant submits that the chronic pain and psychiatric report dated October 10, 2022, by Dr. Jianfar and Dr. Mohsini, was incurred from the treatment plan submitted on May 24, 2022. However, the report was prepared in relation to the February 3, 2018, accident. Therefore, since the report was prepared in relation to the February 3, 2018, accident, it is not payable under the applicant’s claims for the November 22, 2018 accident.

21The applicant further submits that the treatment plan was not properly denied by the respondent pursuant to s.38(8) of the Schedule. However, since the applicant did not produce the treatment plan or the denial letter of the respondent, it is not possible to ascertain whether to treatment plan or its denial is related to the subject accident.

22I find that since the disputed plan for a chronic pain and psychiatric report dated October 10, 2022, refers to an unrelated accident of February 3, 2018, the applicant is not entitled to payment of the report in relation to her claim for the November 22, 2018 accident.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, interest does not apply.

ORDER

24For the reasons set out above, I find that:

i. The applicant is subject to the MIG.

ii. The applicant is not entitled to the treatment plan in dispute.

iii. The applicant is not entitled to interest.

iv. The application is dismissed.