Licence Appeal Tribunal File Number: 21-015808/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:
Nicole Shea
Applicant
and
Perth Insurance
Respondent
DECISION
VICE-CHAIR:
Jeffery Campbell
APPEARANCES:
For the Applicant:
Max Ringler, Paralegal
For the Respondent:
Karly Lyons, Counsel
HEARD: In Writing
OVERVIEW
1Nicole Shea, the applicant, was involved in an automobile accident on July 21, 2018 (the “MVA”), 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, Perth 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to non-earner benefits (“NEB”) in the amount of $185.00 per week from May 12, 2019 to June 21, 2020?
iii. Is the applicant entitled to $3,790.70 for psychological services, proposed by Whitby Wellness Centre, in a treatment plan dated August 30, 2019?
iv. Is the applicant entitled to $3,085.40 for a physiotherapy and chiropractic services, proposed by Whitby Wellness Centre, in a treatment plan dated July 23, 2019?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries do not warrant removal from the MIG.
4The applicant is not entitled to an NEB or interest.
5The applicant is not entitled to the treatment plans or interest as they are subject to the MIG.
ANALYSIS
Removal from the MIG
6I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG.
7The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
8An insured person 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 pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG.
9The Tribunal has also determined that an applicant may be removed from the MIG if they sustained chronic pain with functional impairments. They can also be removed if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under section 3(1).
10The applicant claims that she sustained soft-tissue injuries as described in a Disability Certificate, dated July 31, 2018, prepared by physiotherapist Steffi Paul Mascarenhas. Ms. Mascarenhas listed those injuries as sprains and strains of the cervical and lumbar spine, shoulder joint, hip, and other unspecified parts of the lumbar spine and pelvis. I note that these injuries all fall within the definition of MIG as defined in s. 3 of the Schedule.
11The applicant also submits that she sustained psychological and chronic pain injuries which impact her activities of daily living (“ADLs”). The applicant further submits that her pre-existing soft-tissue injuries (which resulted from a 2015 motor vehicle accident) were exacerbated by the accident (“MVA”).
12The respondent submits that the applicant has not met her burden, as she sustained only minor injuries as a result of the accident.
The applicant’s pre-existing injuries do not remover her from the MIG
13The applicant submits that pre-existing injuries from the 2015 motor vehicle accident were right shoulder and low back pain. The applicant asserts that these injuries were aggravated by the subject MVA and correlate to her ongoing chronic pain as a result of the accident.
14The applicant also submits that she was diagnosed with anxiety disorder in June 2015.
15The respondent submits that the applicant had recovered from any pre-existing injuries that may have been incurred in the 2015 motor vehicle accident.
16Dr. Rick Lindal, psychologist, who assessed the applicant on July 29, 2019, reported that the applicant stated that she recovered from the pre-existing right shoulder and low back pain after a period of one year.
17The applicant was never diagnosed with anxiety disorder before the subject MVA,. Dr. Sangaralingham, a psychiatrist the applicant consulted due to her weight loss and difficulty with her legs, questioned whether the applicant might have anxiety, on June 4, 2015. There is no further evidence that the applicant was diagnosed with anxiety disorder, or that it continued to the date of the subject MVA.
18In his Psychological Assessment report, Dr. Lindal noted that the applicant had advised him that she was doing well and felt emotionally stable at the time of the MVA.
19Based on the above, I find that the applicant did not have a pre-existing condition of anxiety disorder.
20The applicant’s assessing psychologist, Dr. Lindal, noted that she had recovered from the physical injuries sustained in the 2015 accident. The applicant also advised that she was emotionally stable prior to the MVA. I conclude that the applicant has not proven that she has pre-existing injuries which precludes her recovery if she were kept inside the MIG.
The applicant has not proven that she has chronic pain which would warrant her removal from the MIG
21As noted, an applicant may be removed from the MIG if they sustained chronic pain with functional impairments as a result of the accident.
22The applicant submits that she continues to suffer from chronic pain as a result of the accident, with pain medication continuing to be prescribed to alleviate the symptoms. However, I note that the applicant has not submitted any medical documentation with respect to chronic pain. Indeed, neither her family physician, Dr. Bayanzir Parry, or her assessing psychologist, Dr. Lindal, make any mention of chronic pain.
23The applicant has submitted evidence that there was a post MVA change in her medication. However, while the changes in medication may have been to address the applicant’s pain, there is no submission from a medical professional that that pain is chronic.
24The onus is on the applicant to demonstrate that she suffers from chronic pain and that the chronic pain has resulted in functional impairments. The applicant has not presented evidence that her pain is of a severity that it caused functional impairments.
25For that reason, I find that the applicant has failed to prove on a balance of probabilities that she suffers from chronic pain with functional impairment.
The applicant does not have a psychological impairment which warrants her removal from the MIG
26An applicant may be removed from the MIG if they have sustained a psychological impairment.
27The applicant points to the Psychological Assessment of Dr. Lindal in which he diagnoses the applicant with adjustment disorder with mixed anxiety and depressed mood. He also states that the applicant has symptoms of a specific phobia, situational type (driving/passenger related).
28The respondent refers to an Independent Insurers Examination Psychology dated April 26, 2019 by psychologist Dr. Paul Derry. Dr. Derry concluded that, despite challenges in the applicant’s life, she has no psychological injury or diagnosis arising from the MVA.
29The respondent also submits that the report of Dr. Lindal should be afforded little weight as the applicant had not reported any psychological concerns to any of her treating physicians.
30I concur with the respondent. In this case there are two psychological assessments conducted by two psychologists (neither previously known to the applicant) with two conflicting conclusions. However, there are no records from any treating medical professionals that can attest to the applicant reporting, post MVA, of any psychological concerns that she may be experiencing. I find this lack of post MVA medical records regarding the applicant’s psychological condition to be critical. I also note that Dr. Lindal’s report did not record any review of documentation, including medical records, which may have assisted the applicant in demonstrating that she made contemporaneous complaints about her psychological symptoms post-accident. For this reason, I find that the applicant has failed to prove on a balance of probabilities that she has sustained a psychological injury as a result of the MVA.
31As I conclude that the applicant had no pre-existing injuries, which would preclude her recovery if kept within the MIG, has not established that she has chronic pain with functional impairment, and has not sustained a psychological injury as a result of the MVA, I find that she is not entitled to be removed from the MIG. As a result, she is subject to the $3,500 limit on treatment.
Entitlement to NEB
32I find that the applicant is not entitled to a NEB in the amount of $185.00 per week from December 29, 2020 to November 10, 2022.
33Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391 which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
34The applicant points to the Psychological Assessment of Dr. Lindal, in which Dr. Lindal advised that the applicant’s levels of depression, anxiety, and somatic concerns are likely to significantly affect her family activities, and her recreational activities. He also states that the applicant has suffered a “substantial” inability to perform the essential tasks of her housekeeping and maintenance.
35The applicant submits that, prior to the MVA, she lived a normal highly physical and active life. This included chores at home, grocery shopping and leisure activities such as tooling and customizing cars. Since the MVA she has not been able to engage in those activities due to the physical pain and social anxiety. The applicant submits that she is unable to engage in the pre-MVA activities (such as baseball and swimming lessons) that she used to with her young son.
36The applicant also submits that, while she is still capable of driving, it has been necessary for her to purchase a truck, which assists with her driving anxiety.
37The respondent submits that the applicant is not entitled to NEB and points to the Independent Insurer’s Examination Psychology of Dr. Derry, an Independent Medical Examination Physiatry dated April 25, 2019 by physiatrist Dr. Steven K. Baker and an Independent Insurer’s Examination Occupational Therapy In-Home Assessment dated April 26, 2021 by occupational therapist, Christina Kovacic. All three of the above assessments concluded that the applicant does not have a complete inability to carry on a normal life, which is the test the applicant is required to meet for entitlement to an NEB.
38The respondent also submits that, since the MVA, the applicant has graduated with honours from Ontario Tech University in Criminology and Justice. The respondent also notes that, from June 2023, the applicant is employed as a case manager for CMHC. The respondent submits that the applicant has successfully continued with her education as well as with her activities of daily living.
39It is apparent that the applicant’s injuries have affected some of her pre-accident activities. For instance, her ability to perform housekeeping and to care for her son have been disturbed to some extent. However, I find that the applicant’s limitations do not rise to the level of the test found in s. 3(7)(a) of the Schedule, that being of an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident. The applicant continues to have a level of home life that she had pre-MVA and has progressed in her education and has advanced in her vocational life.
40Further, all of the aforementioned medical assessments, including that of Dr. Lindal, provide extensive analysis of the applicant’s injuries and capabilities. Dr. Lindal did outline the areas of the applicant’s life in which she has, and will continue to experience, functional limitations. However, Dr. Lindal concluded, “In my opinion, considering Ms. Shea’s functioning in combination with the physical pain she is currently experiencing, Ms. Shea has suffered a ‘partial’ inability to carry on a normal life.” This falls short of the test of a complete inability to carry on a normal life, necessary in order to qualify for NEB.
41I find that the applicant is not entitled to a NEB.
42Having found that the applicant remains in the MIG, an analysis of the reasonableness and necessity of the treatment plans is not required.
ORDER
43The applicant remains within the MIG and its $3,500.00 limit on treatment.
44The applicant is not entitled to the treatment plans, NEB or interest.
Released: January 3, 2024
Jeffery Campbell
Vice-Chair