Citation: Helfand v. BelairDirect Insurance Company, 2024 ONLAT 21-009706/AABS

Licence Appeal Tribunal File Number: 21-009706/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:

Jordana Helfand

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Harvey Katz, Counsel

For the Respondent:

Elizabeth Harding, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jordana Helfand, the applicant, was involved in an automobile accident on September 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, Belair Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1 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?

2 Is the applicant entitled to $2,205.00 for occupational therapy treatment, proposed by Innovative Occupational Therapy in a treatment plan/OCF-18 (“plan”) dated February 23, 2021?

3Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

4Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plan in dispute is reasonable and necessary is not required and the applicant is not entitled to the treatment plan in dispute.

4The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

5The applicant is not entitled to interest on any overdue payment of benefits since there are no benefits owing.

ANALYSIS

Pre-existing Medical Conditions & Physical Injuries Sustained as a Result of The Accident

6I find that the applicant has not met her burden to show that she has any pre-existing conditions that would prevent her from reaching maximal recovery if she is kept within the funding limits of the MIG. The CNR’s of the applicant’s family physicians: Dr. Henry Onyegbule, Dr. Yanover, and Dr. Joseph Bassey, do not describe the accident resulting in anything other than minor injuries within the meaning described in section 3 (1) of the Schedule. The applicant has failed to satisfy me that her accident-related injuries are not treatable within the funding limits of the MIG. The CNR’s of the family physicians do not describe the applicant discussing the accident or her relaying any complaints of injury or other sequelae. There is no diagnosis offered removing the applicant from the MIG in the CNR’s. I find the Insurance Examination assessment by Dr. Nancy Abrams, is persuasive in the opinion advanced following a review of medical evidence, including the CNR’s of Dr. Onyegbule, that the applicant’s accident-related injuries had resolved by the time of Dr. Abrams’ examination.

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae.

8Section 18(2) states that the $3,500.00 limit does not apply if the insured person “provides compelling evidence the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if she is subject to the $3,500.00 limit.” The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that her injuries are not subject to the MIG.

9The respondent submits that the Superintendent’s Guideline No. 01/14, Minor Injury Guideline, dated February 2014, states that the existence of any pre-existing injury will not automatically exclude a person’s impairment from the Guideline. Only in extremely limited situations, where compelling evidence is provided by a health professional which satisfactorily demonstrates that a pre-existing condition that was documented before the accident, will prevent a person from achieving maximal medical recovery from the minor injury, is the person’s impairment to be determined not to come within the MIG. Exclusion of a person from the MIG based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and the MIG.

10The applicant submits that she has pre-existing health conditions which prevent her achieving maximum medical recovery if she is limited to funding within the MIG. The applicant submits that the CNRs from the Pain Care clinic of Dr. Nadir Aljazrawi dated in July 2017, clearly document the applicant’s pre-existing history of chronic back pain, depression, anxiety, carpal tunnel syndrome, and sciatica. The applicant relies on the Disability Certificate (OCF-3) completed by her chiropractor Daniel Stevenson, in addition to hospital records from the date of the accident, the treatment plan (OCF-18) completed by Ms. Sheila Don, Occupational Therapist, and the CNRs of the family doctors, Dr. Yanover, Dr. Henry Onyegbule, and Dr. Joseph Bassey. The applicant complained of chronic low back pain with her previous health condition described as including depression, diabetes and elevated lipid levels or hyperlipidemias.

11The respondent agrees that the applicant had pre-existing chronic back pain addressed by means of chiropractic care and nerve block injections previous to the accident, as reported by Dr. Nadir Aljazrawi, on July 1, 2019. The respondent submits that the accident did not affect the applicant’s pre-existing back condition to prevent the applicant from reaching maximal medical recovery if she is limited by the MIG. The respondent points to the fact that the applicant did not describe any new significant changes to her back condition following the accident in the CNRs of the family physicians nor in reports by Dr. Gavin Perez or Dr. Faust Moniz, both reporting the applicant’s condition in the year 2022. The respondent submits that the clinical notes and records of the family doctor, Dr. Joseph Bassey, current to December 7, 2022, do not include reference to accident-related complaints. It is submitted by the respondent that although the appointments with Dr. Bassey cover a period of a few months, they demonstrate the focus of the applicant’s treatment relating to monitoring concerns around cardiac function.

12The respondent submits that the IE assessment by Dr. Nancy Abrams dated May 7, 2021, sets forth that the applicant described no real ongoing pain since the subject accident. The applicant mentioned to Dr. Abrams that the accident caused a tear in her left shoulder, evident on ultrasound, but no ultrasound has been provided to show that the accident caused a tear. Dr. Abrams diagnosed the applicant with a full range of motion, with some restriction in the left shoulder, that Dr. Abrams could not conclude, was accident-related or which existed pre-accident in the absence of diagnostic results confirming the tear.

13The respondent relies on the IE General Practitioner Assessment report of Dr. Nancy J. Abrams, where Dr Abrams opines that the applicant had a normal neurological examination, a full range of motion in her cervical spine, and Dr. Abrams concluded that the applicant sustained soft tissue injuries which had resolved since the accident and by the time of Dr Abrams’ examination. Dr. Abrams states that the applicant described continuing with her pre-accident weekly nerve block injections and attendance for chiropractic treatment, without any change in frequency. The applicant did not report any additional need for other forms of treatment following the accident.

14I agree with the respondent’s submission that the conclusions drawn by Dr Abrams have not been addressed or rebutted in the applicant’s evidence. Dr. Abrams opined that the treatment plan/ OCF-18 dated February 18, 2021, submitted by Sheila Don was not reasonable and necessary since the applicant sustained soft tissue injuries because of the accident, which had resolved by the time of the IE examination. In addition, as stated, the applicant was able to do all her personal care, either modified or paced, and her housekeeping as she had previously.

15As referenced in the Superintendent’s Guideline, only where compelling evidence is provided by a health professional demonstrating that a pre-existing medical condition, will prevent the person reaching maximal recovery, is the person’s injury determined not to come within the MIG. In the case of the applicant, there is insufficient evidence demonstrative of any pre-existing physical condition preventing maximal medical recovery if the applicant is limited by the MIG.

16The applicant also alleges that she sustained a concussion in the accident. If proven, that may remove the applicant from the MIG. Beyond the applicant’s submission, there is insufficient evidence provided by a health professional demonstrating that the applicant experienced a concussion in the accident. An MRI of the applicant’s brain taken on February 3, 2020, was normal with no intracranial hemorrhages. In addition, when examined by the attending physician Dr. Ahmed Al-Den, at Oakville Trafalgar Memorial Hospital, on the day of the accident, the diagnosis was whiplash injury. The applicant’s complaints at the time of the accident were limited to increased pain at the base of the neck. The applicant did not report a head injury and the CNRs of the family doctor Dr. Onyegbule, do not describe complaints consistent with a concussion or any symptoms of a head injury.

17I find there is insufficient medical evidence to satisfy the applicant’s burden that she did experience a concussion because of the accident. In addition, as stated, I find insufficient evidence that the applicant has a pre-existing physical condition which would prevent her maximal medical recovery if she is limited to the MIG. Finally, I find there is insufficient evidence that the accident caused physical injuries which remove the applicant from the MIG. I agree with the respondent’s submission that the conclusions drawn by Dr. Abrams have not been addressed or rebutted in the applicant’s evidence as described in paragraph 14. In addition, as opined by Dr Abrams, I am persuaded that by the time of Dr. Nancy Abrams’ IE assessment, the applicant’s accident-related injuries had resolved entirely.

Psychological Injuries

18I find that the applicant has not met her burden to show that she has any pre-existing psychological conditions, which prevent her from reaching maximal recovery if she is kept within the funding limits of the MIG. In addition, I find that the applicant did not report to her physicians experiencing any psychological impairment because of the accident, which would remove her from the funding limit of the MIG. The CNR’s of family physicians Dr. Henry Onyegbule, Dr. Yanover, and Dr. Joseph Bassey, do not describe the accident affecting the applicant’s pre-existing psychological conditions nor causing any psychological injuries. The CNRs of Dr. Henry Onyegbule, Dr. Yanover, and Dr. Joseph Bassey, do not mention the applicant complaining of any accident-related symptoms including psychological symptoms.

19Pre-accident the applicant had a history of being prescribed Effexor, Valium, and CBD capsules without the CNRs providing insight regarding the diagnosis that is the basis for the prescriptions. In July 2017, Dr. Nadir Aljazrawi, of the Pain Care Clinic, describes the applicant with a history of depression and anxiety, however, the family physicians’ CNRs do not describe any accident-related injuries or impairments nor medical evidence describing the accident affecting the applicant’s pre-existing psychological issues. By reason of the insufficiency of evidence showing the applicant experiencing any psychological impairment because of the accident or the applicant’s pre-existing psychological conditions preventing maximal recovery within the MIG, I find that the applicant has not met her burden to show that she experienced a psychological injury as a result of the accident or that her pre-existing psychological conditions prevent maximal recovery within the MIG.

Chronic Pain

20I find that the applicant has not met her burden to show that the chronic pain reported to Dr. Nadir Aljazrawi, of the Pain Care Clinic on July 1, 2017, was a pre-existing condition, affected by the accident preventing the applicant from reaching maximal recovery if she is kept within the funding limits of the MIG. The applicant reported to Dr. Nadir Aljazrawi taking CBD capsules, Percocet, Oxycontin and Hydromorphone to address chronic pain. The CNR’s of family physicians Dr. Henry Onyegbule, Dr. Yanover, and Dr. Joseph Bassey, do not describe the accident aggravating the applicant’s pre-existing medical condition of chronic back pain and the CNRs fail to satisfy me that the applicant’s accident-related injuries are not treatable within the funding limits of the MIG.

21As previously stated, the CNR’s of the family physicians do not discuss the applicant relaying any complaints of injury or other sequelae that are accident-related. There is no diagnosis offered which supports removing the applicant from the MIG in the CNR’s. I find the Insurance Examination assessment by Dr. Nancy Abrams, is persuasive in the opinion advanced following a review of medical evidence, including the CNR’s of Dr. Onyegbule, that the applicant’s accident-related injuries had resolved by the time of Dr. Abrams’ examination. The respondent relies on the IE General Practitioner Assessment report of Dr. Nancy J. Abrams, where Dr. Abrams opines that the applicant had a normal neurological examination, a full range of motion in her cervical spine, in addition, Dr. Abrams opines that the applicant sustained soft tissue injuries in the accident, which had resolved by the time of her examination. Dr. Abrams states that the applicant continues her pre-accident weekly nerve block injections and weekly attendance of chiropractic treatment, with the same frequency as she had pre-accident.

22I find that the applicant has not met her burden to show that her chronic pain reported to Dr. Nadir Aljazrawi, of the Pain Care Clinic on July 1, 2017, as a pre-existing condition would prevent her from reaching maximal medical recovery if she is kept within the funding limits of the MIG. The CNRs of family physicians Dr. Henry Onyegbule, Dr. Yanover, and Dr. Joseph Bassey, do not describe the accident affecting the applicant’s pre-existing medical condition of chronic back pain preventing maximal medical recovery if limited to the funding of the MIG and the CNRs fail to satisfy me that the applicant’s accident-related injuries are not treatable within the funding limits of the MIG.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed in relation to the treatment plans or expense claims in dispute, the applicant is not entitled to interest pursuant to s. 51 of the Schedule in relation to the treatment plans because her injuries are within the funding limits of the MIG, which has been exhausted.

25The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

ORDER

23I find that the applicant sustained minor injuries and is subject to the MIG. The funding limit for the MIG has been exhausted.

24The applicant is not entitled to the treatment plan in dispute.

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule, however as no benefits are owing or overdue, no interest is owing to the applicant.

26The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.