Licence Appeal Tribunal File Number: 21-013907/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:
Giselle Chase-Atherton
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Max Ringler, Paralegal
For the Respondent: Michelle Panagiotakos, Counsel
HEARD: In Writing
OVERVIEW
1Giselle Chase-Atherton, the applicant, was involved in an automobile accident on August 15, 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, Economical 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 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 a non-earner benefit of $185.00 per week from September 12, 2019 to August 15, 2021?
iii. Is the applicant entitled to $1,995.33 for the a psychological assessment, proposed by Midland Wellness Centre in a treatment plan dated July 22, 2021?
iv. Is the applicant entitled to $2,473.04 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan dated July 28, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to an NEB for the period in dispute;
iii. The applicant is not entitled to the treatment plans in dispute; and
iv. The applicant is not entitled to interest.
Applicability of the Minor Injury Guideline (“MIG”)
4The 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.”
5Section 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.
6An 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.
7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
8The applicant submits that she sustained physical, psychological, and chronic pain as a result of the accident.
The applicant did not suffer physical injuries that warrant removal from the MIG
9I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.
10The applicant has provided limited submissions as to how her accident-related physical injuries fall outside the MIG. The applicant relies on the clinical notes and records (“CNRs”) of her family physician Dr. Zaheera Abba. The applicant visited Dr. Abba on August 19, 2019, with complaints of pain in her right tricep, right hip, neck and lower back, Dr. Abba diagnosed the applicant with “msk injuries” and no follow up imaging was ordered.
11The applicant attended physical therapy at Midland Wellness Centre on August 19, 2019, until March 3, 2020. The CNRs of Ms. Aishwarya Kamakshi Chandrasekaran, physiotherapist assessed the applicant’s injuries as sprains and strains. The respondent also relies on the CNRs from Midland Wellness Centre where on October 28, 2019 the applicant expressed a 70% improvement in her daily living, on December 10, 2019 the applicant reported a 50% overall improvement, and by January 30, 2020 there were no physical limitations noted in the CNRs.
12The respondent submits that the applicant has failed to prove on a balance of probabilities that she sustained a physical injury as a result of the accident that would remove her from the MIG.
13After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. The limited medical evidence within the applicant’s submissions supports a finding of soft-tissue injuries, which fall squarely within the s. 3 definition of a minor injury under the Schedule.
14As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.
The applicant did not suffer psychological injuries that warrant removal from the MIG
15I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.
16An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
17In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
18The applicant submits that she reported to Dr. Abba on January 16, 2020, that she had a poor mood and was feeling anxious as a result of the accident. The applicant submits no additional medical evidence. The respondent submits that one claim of a psychological symptom to Dr. Abba is insufficient evidence of a psychological injury.
19After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG. Furthermore, I was not presented with any medical evidence that the applicant has been referred for a psychological assessment, therapy or medication.
20As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.
The applicant has not established chronic pain warranting removal from the MIG
21I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.
22In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from her soft tissue injuries.
23The applicant submits that she should be removed from the MIG as her pain has persisted for months since the accident. In support of her chronic and persistent injury claim, the applicant relies on the CNRs of Dr. Abba that reveal three referrals to a pain clinic on October 7, 2020, January 12, 2021, and August 8, 2022. Although the applicant never attended any of the referral appointments, the applicant submits that the referral itself demonstrates that she has endured long-term chronic pain as a result of the accident.
24The respondent also relies on the CNRs that the applicant was referred to three pain clinics and highlights that the applicant never attended one of the referrals. The respondent submits that chronic pain cannot be inferred solely based on a referral or the length of time that has elapsed since the date of the accident.
25I agree with the respondent. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that she suffers from functionally disabling pain. I find that not only has the applicant not been diagnosed with chronic pain syndrome as a result of the accident, but the applicant has also not provided sufficient evidence to allege that her chronic pain causes a functional impairment. I am also persuaded by the fact that the applicant, alleges chronic pain but did not attend any of the pain clinics, despite multiple referrals made by Dr. Abba.
26As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident.
Non-Earner Benefit (“NEB”)
27The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.
28Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.
29The test for NEB involves a consideration of the applicant’s activities pre- and post-accident, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that her life circumstances have changed significantly enough to continuously prevent her from substantially engaging in the activities that she did before the accident.
30It is the applicant’s position that prior to the accident she lived a normal life, with activities including routine chores at home, shopping, playing with her child, and leisure activities. The applicant now submits that she struggles to maintain her home and care for her child, with no signs of improvement.
31The respondent submits that the applicant is barred to proceed with an NEB claim pursuant to section 31(1)(b) of the Schedule as the applicant wilfully misrepresented her primary residence as Kitchener, Ontario opposed to Scarborough, Ontario, to attract a lower premium. I am persuaded by the various evidentiary examples to support that the applicant resided in Scarborough, including her banking information, driver’s licence address, vehicle registration address, family doctor office and child’s school. The respondent also provided evidence of various requests to the applicant for additional information pursuant to s. 33 of the Schedule to assist in determining whether s. 31 exclusions applied to her claim. I am satisfied that the applicant’s primary residence was in Scarborough, and either misrepresented this information to the respondent to enter into the contract or failed to notify the respondent of a required change to the contract. As a result, the applicant is disentitled to an NEB claim.
32Furthermore, I am satisfied that even if the applicant was entitled to an NEB claim, the applicant has not provided persuasive evidence to demonstrate she meets the test as set forth in Heath. I only have assertions that she has a complete inability to carry on a normal life, without sufficient evidence as to how the injuries sustained as a result of the accident have affected her daily routine, function or activities. As a result, I find that the applicant has not met her onus and has not demonstrated a complete inability to carry on a normal life as a result of her accident-related impairments.
33The applicant is not entitled to the disputed treatment plan because I have found the applicant is subject to the MIG and the plan proposes treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
Interest
34Given that there are no overdue payments of benefits, the applicant is not entitled to interest.
ORDER
35The application is dismissed, and I 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 applicant is not entitled to an NEB for the period in dispute;
iii. The applicant is not entitled to the treatment plan in dispute; and
iv. The applicant is not entitled to interest.
Released: February 20, 2024
Monica Ciriello
Vice-Chair