Carr v. Intact Insurance Company, 2024 CanLII 20683

Citation: Carr v. Intact Insurance Company, 2024 ONLAT 22-003823/AABS

Licence Appeal Tribunal File Number: 22-003823/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:

Hyacinth Carr

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Kevin Mitchell, Counsel

Heard by way of written submissions

OVERVIEW

1Hyacinth Carr, the applicant, was involved in an automobile accident on December 16, 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 Company.

2The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from April 6, 2022 to date and ongoing?

iii. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by Princeton Hills Medical Assessments Inc. in a treatment plan/OCF-18 (“plan”) submitted September 24, 2020 and denied October 1, 2020?

iv. Is the applicant entitled to $792.38 ($1,977.05 less $1,184.67 approved) for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan submitted June 9, 2020 and denied June 17, 2020?

v. Is the applicant entitled to $1,384.70 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan submitted July 23, 2020 and denied July 28, 2020?

vi. Is the applicant entitled to $2,635.40 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in plan submitted January 14, 2021 and denied January 26, 2021?

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

RESULT

4The applicant has not met her burden to prove that she is entitled to treatment beyond the MIG limit of $3,500.00. Since the applicant has been approved for treatment to the $3,500.00 limit, she is not entitled to the disputed treatment plans.

5The applicant has not met her burden to prove that she suffered a substantial inability to perform the essential tasks of her pre-accident employment or that her accident injuries prevented her from going back to work after recovering from her minor accident injuries. She is not entitled to an income replacement benefit (“IRB”).

6As no payments are overdue, no interest is owed the applicant.

ANALYSIS

Minor Injury Guideline

7The applicant did not meet her burden to demonstrate that she is entitled to medical and rehabilitation treatment outside of the MIG limit. The applicant did not direct me to, or submit, medical evidence that supports her claim for benefits outside of the MIG.

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”

9An 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The applicant’s accident injuries are minor

10The applicant submits she sustained significant injuries in the accident including whiplash disorder, neck injury, and sprain and strains to the thoracic spine, lumbar spine, cervical spine and sacroiliac joint. She also reports an unspecified sleep disorder, irritability and anger as possible psychological injuries.

11However, the applicant has not provided medical evidence that prove her injuries are beyond minor and the medical documentation she directs me to does not demonstrate her accident injuries are beyond minor.

12The OCF-3 disability certificate completed by Mitesh Panchal, chiropractor suggests the applicant’s injuries are minor and will resolve within 12 weeks. Clinical notes from MacKenzie Medical Rehabilitation Centre point to sprain and strain injuries consistent with the Schedule’s definition of “minor injury,” and the clinical notes and records of Dr. John Spencer, ophthalmologist, and Dr. Tenisha Mitchell-Lambert, a family medicine physician at Enhance Care Cloverdale Clinic, make no reference to the motor vehicle accident.

13In denying the benefits beyond the MIG, the respondent relies on the results of an insurer’s examination (“IE”) by Dr. Michael Hanna, general and family practitioner, conducted on August 31, 2020. The IE included an in-person interview. Dr. Hanna has post-graduate training in chronic pain medicine. He concluded that the applicant sustained no more than a sprain/strain type injury to her neck and back and there was “no evidence of radiculopathy, myelopathy or neuropathy”. He found that the applicant’s accident impairments were consistent with “minor injuries” as set out in s. 3 of the Schedule.

14I find that the applicant has not demonstrated her injuries are beyond minor, as defined in s. 3 of the Schedule.

Pre-existing condition

15I find the applicant’s pre-existing health condition will not remove her from the MIG. As I will discuss below, she has not connected her pre-existing health condition(s) to any inability to recover from any accident-related minor injury if she were kept within the MIG, nor provided any evidence of chronic pain or psychological injury that would otherwise remove her from the MIG.

16In her submissions the applicant refers me to the s. 18(2) test for escaping the MIG, as discussed above, i.e. that compelling medical evidence of a pre-existing medical condition that would prevent maximal recovery is grounds to be released from the MIG. The applicant’s submissions allude to her having a pre-existing health condition that might limit maximal recovery if she were kept within the MIG, but they do not direct me to medical evidence to support that claim.

17The respondent submits the applicant’s pre-existing medical condition included high blood pressure and a thyroid condition and its submission is supported in the OCF-3 and in Dr. Hanna’s IE assessment. The respondent submits the applicant has not satisfied the MIG test in s. 18(2) since she has provided no evidence of “any pre-existing condition being exacerbated by the index accident.”

18I find the applicant does not satisfy the test in s. 18(2) to escape the MIG. The test requires more than proving the existence of a pre-existing condition; the applicant must show through medical evidence that such pre-existing condition would preclude her maximal recovery from any accident-related minor injuries, and her evidence falls short of that burden.

Chronic pain or psychological injury

19The applicant has not demonstrated she suffers from chronic pain or that her accident injuries are other than minor.

20The applicant’s submissions suggest she is suffering from chronic pain, yet she does not provide any medical evidence to support a diagnosis of chronic pain.

21The MacKenzie records on the applicant’s range of motion are legible and persuasive. Considering that the applicant’s physical complaints were predominantly lower and upper back pain, her range-of-motion in the cervical and lumbar spine from just after the accident until July 2020 attests to the progress she made with treatment. After six months, her range-of-motion was almost normal. The cost of these incurred treatments may have exceeded the MIG limit of $3,500.00 but s. 18(1) is very clear that an insurer is only obliged to reimburse claims above that limit when accident impairments warrant removal from the MIG and where the claims are reasonable and necessary. In this case, the applicant has failed to establish her injuries are beyond minor.

22The applicant refers me to Jin Yang Guo v. Allstate Insurance, 2021 ONLAT 19-005819/AABS (“Guo”) as a case where that applicant met his burden to escape the MIG because he suffered chronic pain or chronic pain syndrome. I find that Guo does not apply in this case because the applicant has not provided any evidence of chronic pain or chronic pain syndrome. Indeed, the respondent provided medical evidence that refutes any claim of chronic pain or chronic pain syndrome by the applicant. Accordingly, I do not find Guo to assist the applicant.

23The respondent submits that the applicant does not have chronic pain or suffer from chronic pain syndrome. It relies on a paper review by Dr. Hanna reported on October 22, 2020, of the applicant’s OCF forms (proposed treatment plans, disability certificate, application for benefits, and MIG treatment and discharge report) and related correspondence. Dr. Hanna references the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, 1993, Chapter 15 (“AMA Guideline”) in relation to the applicant’s injuries and concludes she does not meet any of the criteria that would suggest a diagnosis of chronic pain syndrome.

24Dr. Hanna’s conclusion that the applicant does not meet any of the chronic pain criteria in the AMA Guideline is unrefuted by the applicant. I give his IE assessment weight because he interviewed the applicant in person, has qualifications in chronic pain medicine, and completed a follow-up paper review of the OCF documents.

25The applicant does not assert that a psychological injury resulted from the accident as a premise to escape the MIG.

26I find the applicant does not suffer chronic pain and that her accident injuries are within the s. 3 definition of minor.

27I find the applicant did not meet her burden to prove entitlement to medical and rehabilitation benefits beyond the MIG and that her injuries were minor as described in s. 3 of the Schedule.

Income Replacement Benefit

28The applicant has not proven that she is entitled to an IRB.

29To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

30The applicant made no submissions in support of IRBs. IRBs were not even mentioned in the closing paragraph of her submissions under the heading of “Relief Sought”. She mentions only medical benefits and interest being sought.

31The applicant made no submissions on the question of the disputed IRB start date of April 6, 2022, the quantum (amount per week), or how her accident injuries resulted in a substantial inability to perform her pre-accident employment.

32The respondent submits that the applicant’s records of employment in 2020, 2021, 2022 suggest no loss of employment after the accident.

33Based on the evidence before me and the absence of evidence from the applicant, I conclude the applicant is not entitled to an IRB.

34Since I have found that the applicant is not entitled to medical and rehabilitation benefits beyond the MIG, and the parties agree that the MIG limit has been exhausted, it is not necessary for me to determine if the proposed treatment plans are reasonable and necessary.

35I find the applicant is not entitled to the proposed treatment plans.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no payments are overdue, the applicant is not entitled to interest.

ORDER

37The applicant’s injuries are predominantly minor as defined by s. 3 of the Schedule and are therefore subject to the $3,500.00 MIG limit.

38The applicant is not entitled to income replacement benefits.

39Since the MIG limit is exhausted, the applicant is not entitled to the proposed treatment plans in dispute.

40The applicant is not entitled to interest.