Licence Appeal Tribunal File Number: 20-015375/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:
Melanie Stewart
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: David Carranza, Paralegal
For the Respondent: Nickola Haddad, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Melanie Stewart, the applicant, was involved in an automobile accident on August 25, 2019, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,643.75 for chiropractic services, proposed by Manju Ramesh, Health Plus Physiotherapy Services in a treatment plan (“OCF-18”) dated November 26, 2019?
iii. Is the applicant entitled to the cost of a physiatry assessment in the amount of $2,708.60 proposed by Complete Rehab Centre in and OCF-19 dated May 30, 2022?
iv. Is the applicant entitled to $8,266.88 for chiropractic and physiotherapy services proposed by GMG Health and Wellness in an OCF-18 dated May 4, 2022?
v. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest.
ANALYSIS
4On August 25, 2019, the applicant was rear-ended, the airbags did not deploy. Police and paramedics arrived at the scene of the accident and the applicant was transferred by ambulance to the Milton District Hospital. She was recommended to follow up with Dr. Shiraz Shariff, family physician.
Applicability of the Minor Injury Guideline (“MIG”)
5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
9The applicant submits that she should be removed from the MIG on the basis that she has suffered a fracture preventing her from maximum recovery if she were to be kept within the MIG.
The applicant’s injuries do not warrant removal from the MIG
10I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG.
11The applicant submits that she sustained a T7 vertebral fracture caused by the accident, and further submits that her cancer diagnosis and post-accident travel prevented her recovery.
12I am not persuaded by the applicant’s medical reports from the Milton District Hospital, the clinical notes and records (“CNRs”) of Dr. Shiraz Shariff, family physician, or the treatment plan by Manju Ramesh, physiotherapist, at Health Plus Physiotherapy, as these records do not support her claim for removal from the MIG.
13At the hospital following the accident, the applicant complained of neck, lower back, coccyx and leg pain. A lumbar and thoracic spine x-ray was completed, revealing a minor wedging of the superior endplate of T7 as could be seen with a minor superior endplate compression fracture. The remainder of the x-ray was unremarkable. The applicant was discharged and advised to consult with her family physician. The applicant did not visit Dr. Shiraz Shariff until October 1, 2019. The CNRs of Dr. Shariff state the applicant has upper back strain, low back strain and a T7 vertebrae fracture, all of which Dr. Shariff attributes to the accident. Dr. Shariff referred the applicant to physiotherapy and prescribed anti-inflammatory medication. In the treatment plan in evidence, Ms. Ramesh also references that the applicant sustained injuries including, sprain and strains, whiplash and a T7 fracture. Ms. Ramesh’s notes do not indicate if the T7 was as a result of the accident.
14I am persuaded by the submissions of the respondent that the fracture is not-accident related. The respondent relies on the September 8, 2020, Insurers Examination of Dr. Greg Jaroszynski, orthopedic surgeon. Dr. Jaroszynski opined that the T7 fracture reported on the x-ray was not accident related, concluding that the accident related injures were soft-tissue, sprains, and strains. Furthermore, Dr. Jaroszynski provided that the applicant’s T7 abnormality was not compatible with an acute fracture, which under normal circumstances would be acutely painful in that area, referencing that the applicant did not report any specific pain or tenderness to the T7 area. It is the respondent’s position that the fracture was degenerative or undiagnosed prior to the accident.
15While I acknowledge that the medical evidence reveals that the applicant sustained a fracture to her T7 vertebrae, I put more weight on the medical opinion and assessment of orthopedic surgeon Dr. Jaroszynski than that of the applicant’s family physician or her physiotherapist, as an orthopaedic surgeon is better suited to assess the origin of a fracture. Therefore, I am persuaded that the fracture was not accident related, and the injuries the applicant sustained as a result of the accident are uncomplicated soft tissue injuries treatable within the MIG. The applicant has the burden of demonstrating that the fracture is accident related and has not provided evidence that but for the accident the fracture would not have occurred.
16The applicant also submits that her cancer diagnosis and post-accident travel prevented or delayed her treatment and recovery. While I sympathize with the applicant’s diagnosis, I am not persuaded that it interfered with her ability to treat her accident-related injuries. Furthermore, the evidence suggests the applicant has left the country on numerous occasions since the accident, for periods up to one year.
17As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she sustained injuries that warrant her removal from the MIG.
Disputed Treatment Plans
18The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
Interest
19Interest applies on the payment of nay overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
ORDER
20The applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit on treatment.
21The applicant is not entitled to the treatment plans in dispute because they propose services that are beyond the MIG’s funding limit.
22No interest is applicable.
23The application is dismissed.
Released: February 23, 2024
__________________________
Monica Ciriello
Vice-Chair