Licence Appeal Tribunal File Number: 22-002664/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:
Desiree Anderson
Applicant
and
Cooperators General Insurance Co.
Respondent
DECISION
ADJUDICATOR: Amar Mohammed
APPEARANCES:
For the Applicant: Matthew D Reid, Counsel
For the Respondent: Amirali Golpira, Counsel Emily Schatzker, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Desiree Anderson, the applicant, was involved in an automobile accident on September 26, 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, Cooperators General Insurance Co., 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 subject to the $3,500.00 limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to the treatment plan for psychological assessment dated December 29, 2020, by Dr. Nadia Brown, totalling $2,200.00 (“Dr. Brown Treatment Plan”)?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
RESULT
3I find as follows:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and subject to the $3,500.00 limit under the MIG.
ii. The applicant is entitled to the benefits set out in the Dr. Brown Treatment Plan, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
iii. The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline
4I find that the applicant is subject to the MIG.
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if an applicant’s impairments 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.”
6A respondent will not be subject to the MIG if they can establish that their accident-related impairments are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological injury resulting from an accident may warrant removal from the MIG since they are not included in the definition of “minor injury”.
7In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if their health practitioner determines they have a pre-existing condition that was documented before the accident. This must be combined with compelling medical evidence of the pre-existing condition as well as compelling evidence that the condition precludes recovery of the respondent if they are kept within the confines of the MIG.
8The applicant submits that the MIG does not apply for two reasons submitted as alternative arguments. The two reasons argued are:
i. The applicant sustained a psychological injury as a result of the accident;
ii. The applicant has a pre-existing condition as defined in s. 18(2) of the Schedule.
9The applicant has not made any submissions suggesting the existence of any accident-related physical injuries that are not predominantly minor.
10The respondent submits that the applicant consumed a total of $916.49 from the available MIG limit as of March 2021. The applicant did not address the amount consumed or remaining under the MIG.
(I) Psychological injury
11The applicant has not satisfied me that she sustained psychological injury or impairment as a result of the accident. The Westmount Family Physicians records (“Family Physician Records”) refer to symptoms of anxiety pre-accident. They do not offer a diagnosis of any psychological injury or impairment that resulted from the accident.
12The Family Physician Records post-accident continue to refer to stress and to symptoms of anxiety caused by events unrelated to the accident, which are detailed therein. There is no diagnosis of any psychological impairment as a result of the accident or an exacerbation of symptoms of anxiety as a result of the accident.
13The Family Physician Records do not support the applicant’s submissions that she was diagnosed with panic attacks as a result of the accident or that the applicant began experiencing panic attacks after the accident. To the contrary, there is one mention of a panic attack the applicant “had while kick-boxing” on November 29, 2019. The note goes on to confirm this is not new: “She used to have Ativan for PRN attacks but she was all out.” There is no other mention of a panic attack in the medical record provided and specifically none which relate the attacks to the accident.
14The applicant argues that she was prescribed anti-anxiety medication for thrice-daily usage in September 2020 and that this is evidence of an exacerbation of her anxiety post-accident and that this exacerbation is accident related. This is not supported by the evidence.
15In the Family Physician Records, on September 10, 2020 it is noted that the applicant reported her anxiety has “shot to the roof over the last two weeks.” The reasons for her anxiety are self reported in the same note as being unrelated to the accident which occurred a year prior. Eighteen days later, on September 28, 2020 it is noted for the first time that the applicant will be put on a regular medication for anxiety and “anxiety disorder” is also mentioned for the first time. There is no reference to any connection to the accident in relation to this prescribed medication or this disorder.
16The applicant also relies on an Initial Medical Assessment by Dr. Brown dated September 17, 2021 (the “Assessment”) in her submissions. Dr. Brown is a general practitioner at DMA Rehability. The applicant was assessed on July 21, 2021. I give very little weight to this assessment for reasons to follow.
17Contrary to the applicant’s submissions and the Family Physician Records, the Assessment reports no medication for any psychological impairments under the section for current medications. It only notes Tylenol, Advil Cold and Sinus, and Voltaren. I did not give this assessment weight because I did not find consistency in this Assessment with the applicant’s submissions and with the Family Physician Records.
18Dr. Brown diagnosed the applicant and commented as follows:
i. Adjustment Disorder with mixed anxiety and depressed mood
ii. Generalized Anxiety Disorder – exacerbated*
i. “*Although a Generalized Anxiety Disorder was not specified directly within the clinical records pre-accident, it is felt, considering the client report, as well as notes within the available documentation, that it is probable she fulfilled the criteria pre-accident and that her current level of anxiety represents an exacerbation.”
iii. Borderline Somatic Symptom Disorder with predominant pain.
19Dr. Brown notes in her Assessment regarding the applicant’s symptoms of anxiety pre and post accident: “She states that this was stabilizing at the time the accident occurred, but anxiety worsened again in 2020.” However, the applicant’s self reported reasons for this worsening of anxiety symptoms are not accident-related as established in the Family Physician Records discussed previously.
20In Dr. Brown’s Clinical Summary, she notes that the applicant’s mood has deteriorated since the accident and provides a number of pre and post accident reasons for this. I am not convinced that Dr. Brown’s diagnoses are established to be as a result of the accident.
21Dr. Brown notes the applicant as stating that she can no longer engage in her main outlet, namely physical exercise, due to her pain, worrying about pain, low energy and amotivation. I find this inconsistent with the MVA Initial Assessment Report prepared by Lifemark Physiotherapy Byron Village, dated October 27, 2020. This report notes that the applicant got back into yoga and kickboxing post-accident during the period between November 2019 and March 2020 until she stopped these activities due to the COVID-19 pandemic. The clinic also noted that the applicant’s activities of daily living are not greatly affected at that time. All contemporaneous evidence points to reasons other than the accident as the basis for the issues the applicant is facing.
22Causation is a factual determination made on a balance of probabilities. The contemporaneous medical evidence does not support as a matter of fact that the applicant would not have the complaints that she has reported but for the accident.
23I give Dr. Brown’s Assessment little weight for the following additional reasons:
i. It was completed 2 years post-accident whereas the Family Physician Records are contemporaneous.
ii. It relies on documentation only up to November 2020 whereas the Family Physician Records are updated.
iii. It relies on review of a paper record to attempt to insert a “probable” pre-accident diagnosis regarding the applicant’s pre-accident psychological health whereas no actual diagnosis is documented pre-accident.
iv. It includes an occupational therapy assessment as a treatment recommendation; however, the applicant had already completed an occupational therapy assessment on June 3, 2021, a few weeks prior to Dr. Brown’s assessment. The occupational therapist found “no impairment of walking, feeding, dressing or mental functions.” This is documented in the Family Physician Records but not referenced in the Assessment.
24I place considerable weight to the Family Physician Records as they are provided by the applicant’s treating health practitioners of many years, are contemporaneous and updated. This evidence does not support a finding in favour of the applicant.
25I find that the applicant has not proven that she suffered a psychological impairment as the result of the accident and that she is not removed from the MIG on that basis.
(II) Pre-existing condition preventing maximal recovery
26The applicant has not satisfied me that there is compelling evidence that she has a pre-existing medical condition that was documented prior to the accident and that will prevent a maximal recovery from the minor injury suffered as a result of the accident.
27The applicant relies on the Family Physician Records dated from September 26, 2016 to November 5, 2020 to establish a documented pre-existing condition of anxiety by pointing to the notes found on the following pre-accident dates: March 17, 2017, February 9, 2018 and August 7, 2019. These pre-accident Family Physician Records note symptoms of anxiety.
28I do not need to consider whether the record of symptoms may be considered compelling evidence of a medical condition. No submissions were made to establish how, or why the applicant’s pre-accident symptoms of anxiety will prevent maximal recovery from the applicant’s minor. Section 18(2) of the Schedule requires that the applicant present compelling medical evidence that the condition precludes recovery if they are kept within the confines of the MIG. Based on the lack of such submissions and compelling evidence I find that she has not established that her injuries warrant removal from the MIG on the basis of s. 18(2) of the Schedule.
Dr. Brown Treatment Plan
29Pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits set out in the disputed treatment plans if they have been incurred, up to the maximum available funding remaining within the MIG. There is no need for me to determine if the treatment plan is reasonable and necessary under the circumstances.
Interest
30The applicant is entitled to interest pursuant to s. 51 of the Schedule, for benefits set out in the disputed treatment plan up to the remaining amount of the MIG limits, if incurred, as contemplated by s. 40(8) of the Schedule.
31Otherwise, there are no overdue benefits and therefore the applicant is not entitled to interest.
Award
32The applicant sought an award under s. 10 of the Schedule up to 50 per cent of the total benefits payable on the basis that the insurer unreasonably withheld or delayed the payment of benefits.
33The applicant has not satisfied me that benefits were withheld or delayed by the insurer unreasonably.
34There were no submissions before me confirming that the disputed benefits were incurred within the scope of s. 40(8) and the insurer continued to withhold or delay payment after sufficient notice of same.
35Therefore, I find the applicant is not entitled to an award.
ORDER
36For these reasons, I make the following final Orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and subject to the $3,500.00 limit under the Minor Injury Guideline.
ii. The applicant is entitled to the benefits set out in the Dr. Brown Treatment Plan, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
iii. The applicant is not entitled to an award.
Released: March 19, 2024
__________________________
Amar Mohammed
Adjudicator