Williams v. Intact Insurance, 2024 CanLII 13086

Citation: Williams v. Intact Insurance, 2024 ONLAT 22-000242/AABS

Licence Appeal Tribunal File Number: 22-000242/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:

Kentrell Williams

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: Kentrell Williams, Applicant Nicole Corriero, Counsel

For the Respondent: Intact Insurance Cole O'Reilly, Counsel

HEARD: In Writing

OVERVIEW

1Kentrell Williams, the applicant, was involved in an automobile accident on December 4, 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, Intact Insurance, 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 $3,514.00 for physiotherapy services, proposed by Activa Mississauga in a treatment plan/OCF-18 (“plan”) submitted September 20, 2021 and denied February 28, 2022?

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

RESULT

3The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment. The treatment plan in dispute is not reasonable and necessary as it proposes treatment beyond the MIG limit.

4As there are no overdue payment of benefits, the applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline

5The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1).

i. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

ii. An 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.

iii. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

iv. As of June 20, 2022, the applicant had received $1,640.59 in medical/rehabilitation benefits and had $1,859.41 remaining under the MIG limits.

v. The applicant bears the onus of establishing, on a balance of probabilities, his entitlement to coverage beyond the $3,500.00 cap for minor injuries.

6The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“MIG”).

7The applicant submits that he suffered a psychological impairment as a result of the accident, which is not a "minor injury" as defined in s. 3(1) of the Schedule. He also submits that his pre-existing condition of scoliosis precludes recovery under the MIG for the purposes of s. 18(2) of the Schedule.

8For the following reasons I find that the applicant’s injuries resulting from the accident are predominantly minor. The impairments identified in hospital records as well as in physicians and physiotherapy clinical notes and records and reports are those as defined within the MIG:

i. the Hospital Records of Woodstock General Hospital from December 4, 2019, noting neck pain, back pain, headaches and a diagnosis of whiplash. These are all injuries which are defined as “minor injuries” in s. 3(1) of the Schedule;

ii. the clinical notes and records of Dr. Takhar from December 11, 2019, noting sore neck and back as well as headaches and concussion symptoms with a request to have a follow-up appointment in one week. Of note, the applicant has not sought care from this practitioner since this visit and no evidence of a formal diagnosis of concussion has been submitted. I am not satisfied that the applicant suffered a concussion in the accident and the remaining complaints to Dr. Takhar relate to injuries that are defined as “minor” in the Schedule;

iii. the OCF-18 submitted by physiotherapist Sandeep Kaur, of September 20, 2021, noting whiplash disorder and sprain and strain of cervical, thoracic and lumbar spine as well as sprain and strain of sacroiliac and shoulder joint, all of which are “minor injuries”; and

iv. the insurer examination by Dr. James Stewart, general practitioner, dated February 4, 2022, concludes the injuries sustained in the accident were predominantly minor.

9I find that the applicant’s physical injuries are all within the definition of “minor injury” in s. 3(1) of the Schedule and therefore do not remove the applicant from the MIG. However, the applicant can still be found to be outside of the MIG based on a psychological impairment, which would be outside of the definition of a minor injury.

10For the following reasons, I find that the applicant does not have a psychological impairment as a result of the accident that would warrant removal from the MIG.

11The applicant submits that the report from Dr. Brunshaw/ Nicole Presutti, registered psychotherapist, of March 20, 2023, made a diagnosis of adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational type (vehicular: driver, passenger, pedestrian) with moderate level of severity which demonstrates that he developed psychological impairments as a result of the accident.

12The respondent submits that the clinical notes and records of the applicant’s medical and physiotherapy practitioners from the date of the accident to March 20, 2023 do not mention any psychological issues. The respondent says that this demonstrates that any psychological issues experienced by the applicant were not the result of the accident.

13I prefer the medical evidence of the respondent with regard to the alleged psychological injury. The insurer examination by Dr. James Stewart, general practitioner, dated February 4, 2022 is the most extensive assessment of the applicant before me. Dr. Stewart found that there were no functional impairments, that the applicant put forth poor effort and a self-limited examination. Further, although “headaches”, which occur 3-4 times per month are listed under current complaints, there is no mention of any psychological issues and the applicant denied “any cognitive impairment”. The findings of Dr. Stewart are consistent with all the other submitted medical evidence. The opinion of Dr. Brunshaw/ Nicole Presutti is not supported by the contemporaneous medical records which indicate that there were no psychological complaints for several years after the accident and therefore I did not find their report persuasive.

14I find that the applicant sustained predominantly minor injures in the accident and that he has not established the existence of a psychological injury as a result of the accident to warrant removal from the MIG on this ground.

Pre-existing Injuries

15Even if the applicant’s injuries fall within the definition of minor injury, he can still be removed from the MIG in accordance with s.18(2) of the Schedule. He must meet all three of the following requirements in order to be removed from the MIG under this section:

i. he must have pre-existing medical condition;

ii. there must be health practitioner documentation of the pre-existing medical condition; and

iii. he must show that a health practitioner has determined, and provided compelling evidence, that the pre-existing condition prevents maximal recovery from the minor injury if he is subject to the MIG funding limit.

16For the following reasons I find that the applicant does not meet the test for a pre-existing condition which precludes maximal recovery and warrants removal from the confines of the MIG funding limit:

i. the applicant has not submitted any evidence that documents the existence of the scoliosis prior to the accident, a required element of the test to warrant removal from the MIG;

ii. The applicant submits that he has adduced evidence suggesting that he suffered a pre-existing injury that prevented him from maximal recovery because imaging of the thoracic spine revealed scoliosis in the lower thoracic spine, which was only discovered post accident. However, the applicant did not submit evidence that suggests this condition was diagnosed prior to the accident, nor did he submit any medical evidence that suggests this condition would prevent maximal recovery, which is the requirement for removal from the MIG under s. 18(2).

17As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a pre-existing injury in accordance with s.18(2) to be removed from the MIG.

18Having found that the applicant remains in the MIG, an analysis into the reasonableness and necessity of the treatment plan in dispute is not required, as the applicant is subject to treatment within the $3,500 funding limit of the MIG and the treatment plan proposes treatment beyond the limit.

Interest

19As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51.

ORDER

20For the reasons outlined above, I find the applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.