Licence Appeal Tribunal File Number: 22-001609/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:
Mercedes Stephenson
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Loreto Scarola, Paralegal
For the Respondent: Stephen Whibbs, Counsel
HEARD: In Writing
OVERVIEW
1Mercedes Stephenson, the applicant, was involved in an automobile accident on May 27, 2021, 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, Sonnet Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2All issues in dispute relate to the subject accident and will be referred to as “the accident”. The applicant was involved in a subsequent motor vehicle accident on July 26, 2021, to be referred to as the “second accident”.
ISSUES
3The issues in dispute are:
- 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?
- Is the applicant entitled to the treatment plans/OCF-18s for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre (“MMRC”), as follows: i. $2,065.55 in a treatment plan/OCF-18 (“plan”) dated October 13, 2021? ii. $1,300.00 in a treatment plan/OCF-18 (“plan”) dated August 18, 2021? iii. $3,975.50 in a treatment plan/OCF-18 (“plan”) dated May 31, 2021?
- Is the applicant entitled to $2,144.93 for a psychological assessment proposed by Pilowsky Psychological Professional Corporation in a treatment plan/OCF-18 (“plan”) dated January 20, 2022?
- Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits?
4In submissions, the applicant confirmed that the MIG limit of $3,500.00 had been exhausted. The respondent made no objection to this statement.
RESULT
5The applicant remains in the MIG.
6The applicant is not entitled to the treatment plans or interest.
7The applicant is not entitled to an award.
ANALYSIS
The applicant’s injuries are minor as defined by the Schedule
8I find that the applicant’s injuries are minor as defined by the Schedule.
9Section 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. Section 3(1) defines a “minor injury” 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.”
10An 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
11The applicant submits that her injuries merit treatment beyond the limit of the MIG on the basis of both the medical evidence and the respondent’s conduct. She argues that by limiting her to the MIG, the respondent prevented her from accessing needed treatment for both her physical and psychological injuries. She relies on the clinical notes and records (“CNRs”) of her general physician (“GP”) Dr. Dholasania, CNRs and a disability certificate (“OCF-3”) from the treatment providers at MMRC, and a s. 25 psychological assessment by Dr. Pilowsky, psychologist.
12For its part, the respondent submits that the burden of proof lies with the applicant, and she has failed to demonstrate that her accident-related complaints warrant removal from the MIG.
Physical Impairments
13I find that the applicant’s physical impairments from the accident are properly treatable within the MIG. None of the CNRs or the OCF-3 record any injuries that are not found in the definition of minor under the Schedule.
14The OCF-3 dated May 31, 2021, prepared by Dr. Gordanpour, chiropractor, reports that the applicant's injuries consist of sprains, strains, headaches and other complaints, all of which are defined as minor injuries in the Schedule.
15The GP's CNRs up to November 18, 2021, the last record submitted, report complaints of pain, but no reports of injuries which are not defined as minor injuries in the Schedule. Further, the history of the applicant’s interaction with her GP supports that she suffered only minor injuries.
16The applicant first consulted Dr. Dholasania by phone approximately a week after the accident. The doctor recommended basic treatment with ice and over-the-counter (“OTC”) medication since the applicant stated she was unable to come into the office that day. The applicant did not return to see her GP until several weeks later on June 28, 2021. During the appointment she reported that her shoulder pain had resolved but some other pain remained. Dr. Dholasania referred the applicant for x-rays; however, the applicant did not respond to several telephone calls from her doctor in the ensuing months, and ultimately there is no record before me that she ever attended for them. The applicant’s choice to not complete the x-rays is further evidence that her injuries are minor.
17As for the CNRs from MMRC, they are largely illegible and best serve as a record of attendance. They do not offer any indication that the applicant’s injuries fall outside the MIG. There is even one CNR dated July 23, 2021, where it is recorded that the applicant “feels better”.
18Thus, the CNRs and the OCF-3 both evidence minor physical injuries after the accident. There are no records about the second accident that would offer insight into any injuries sustained on July 26, 2021, or their impact on her injuries from the subject accident. Based on the CNR from MMRC, there is some evidence that the applicant is recovering before the second accident occurred.
19For the reasons outlined above, the applicant has not demonstrated that she warrants removal from the MIG on the basis of her physical impairments.
Psychological Impairment
20I find that the applicant’s psychological symptoms are sequalae from her minor injuries sustained in the accident and are properly treatable within the MIG.
21None of either the CNRs from MMRC and GP Dholasania or the OCF-3 corroborate the major diagnoses made by Dr. Pilowsky in her s. 25 report dated July 29, 2022.
22Drs. Gordanpour and Dholasania noted sleep and anxiety disorders shortly after the accident, but no specific diagnosis is made, and no psychological impairments are identified. While this is supportive of the presence of psychological symptoms after the accident, it does not support a finding of psychological impairment sufficient to remove the applicant from the MIG.
23A subsequent appointment a month later with Dr. Dholasania indicates that the applicant is experiencing some symptoms, but they don’t require a prescription or a referral. She refuses an offer of medication for low mood because “she was not depressed”. Dr. Dholasania suggests psychotherapy but does not make a formal referral.
24The next relevant appointment is almost six months later on November 18, 2021. At this appointment, the applicant references a number of interpersonal stressors involving issues at school, with family, and in her personal relationships. Again, Dr. Dholasania assesses symptoms of depression and anxiety, and advises psychotherapy, but no referral is made. It is clear that various stressors are present at the time of this appointment that are unrelated to the accident. Further, although the CNR references a motor vehicle accident, it is not clear which one, nor the role of the accident among the other stressors identified by her GP.
25Thus, to the end of 2021, I conclude that the applicant has symptoms of low mood and sleep issues. However, there is nothing in the evidence to indicate they rise to the level of a psychological impairment that cannot be treated within the MIG. The CNRs submitted for this hearing show no further contact with her GP after 2021.
26Dr. Pilowsky’s s. 25 assessment took place on May 26, 2022, with a resulting report dated July 29, 2022. Major Depressive Disorder, Single Episode (Moderate), and Posttraumatic Stress Disorder with vehicular anxiety (relating to both accidents) are diagnosed. Dr. Pilowsky also concluded that the applicant was at high risk of developing Somatic Symptom Disorder.
27I am not persuaded by the findings of the report and note that the resulting diagnoses are not reflected in any other corroborating medical records. Further, the report does not differentiate between the two accidents with regard to how any symptoms may relate to the accident that is the subject of this claim.
28The report is not convincing – not only because the outcome is uncorroborated, but because of issues related to its format and components. The assessment was conducted by telephone, more than six months after the applicant’s last visit to her GP, and almost a year after the subject accident. The report includes findings that the applicant’s symptoms of depression and anxiety were in the severe range and merited several formal diagnoses. However, the testing component was based on self-reported questionnaires completed by the applicant.
29The documentation reviewed consisted mainly of the proposed treatment plans from MMRC and the CNRs from Dr. Dholasania. There is a reference to a doctor’s appointment on February 11, 2022, although I could not find the CNR in the evidence submitted for this hearing. There are also descriptions of the “patient’s injuries and complaints”, yet it is not clear what the source of this information might be.
30Thus, the applicant has not established that she should be removed from the MIG due to psychological impairment. Based on the evidence before me, I find that any psychological symptoms do not rise to the level of a psychological impairment that would preclude treatment within the MIG.
31The applicant is not entitled to the treatment plans.
32Because I have determined that the applicant’s accident-related injuries are subject to the MIG limits, and as there is no funding remaining within the MIG, the applicant is not entitled to the treatment plans.
S 38(8) and the Psychological Assessment in the amount of $2,144,93
33The applicant submits that the plan for the psychological assessment is payable because the respondent’s notice of denial was late in violation of s. 38(8) of the Schedule.
34The respondent denies that the notice was late, indicating that it was submitted on January 24, 2022, and denied ten days after in full compliance with the requirements of the Schedule. I accept the respondent’s argument that the submission date is clear, as evidenced by the time and date stamp of the submission into the HCAI system on the top left corner of the document.
35As a result, the applicant has not established that the denial notice was late and is not entitled to the plan on this basis.
Interest
36No interest applies as no payments are overdue.
Award
37The 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.
38Given my finding that the applicant remains subject to the MIG, and the funds are exhausted, none of the treatment plans are payable. Consequently, there is no basis for an award as no payments could have been delayed or withheld.
ORDER
39I order that:
i. The applicant remains subject to the MIG limit.
ii. The applicant is not entitled to the treatment plans or interest.
iii. The applicant is not entitled to an award.
Released: March 1, 2024
Bonnie Oakes Charron
Adjudicator