Licence Appeal Tribunal File Number: 21-014911/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:
Iris Yosores
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Denis Chubar, Paralegal
For the Respondent:
Monika Korona, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Iris Yosores, the applicant, was involved in an automobile accident on February 7, 2020, 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, Unifund Assurance 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:
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 not been exhausted and the respondent’s submission shall identify the amounts remaining.
ii. Is the applicant entitled to $2,486.01 for a psychological assessment, proposed by Q Medical in a Treatment Plan/OCF-18 ("plan") submitted on October 21, 2020?
iii. Is the applicant entitled to $2,401.25 for a chronic pain assessment, proposed by Q Medical in a plan submitted on October 26, 2020?
iv. Is the applicant entitled to $1,564.29 for chiropractic services, proposed by Humber Civic Care Centre in a plan submitted on June 29, 2020?
v. Is the applicant entitled to $2,818.90 for chiropractic services, proposed by Humber Civic Care Centre in a plan submitted on January 27, 2021?
vi. Is the applicant entitled to $2,629.86 for chiropractic services, proposed by Humber Civic Care Centre in a plan submitted on May 26, 2021?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven injuries outside of the MIG or an entitlement to any disputed benefits. Accordingly, overdue interest is not payable.
ANALYSIS
The applicant’s injuries are minor as defined by the Schedule
4I find the applicant has not provided sufficient evidence to warrant removal from the MIG.
5Section 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.”
6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside 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.
7The applicant submits that they should be removed from the MIG due to physical injuries that fall outside of the MIG and a psychological impairment.
8The applicant refers to clinical notes and records from Dr. K Dobkin, the applicants family physician, and the Humber Civic Care Centre, the provider of rehabilitation services, for support that she suffers from an accident-related psychological impairment and injuries that fall outside the MIG.
9In response, the respondent submits that the applicant has not proven an injury that falls outside of the MIG or a psychological impairment. The respondent refers to the clinical notes and records of Dr. Dobkin, as well as s.44 reports from Dr. I Chaudry, physician, and Dr. A Syed, neuropsychologist.
10The applicant first saw her family physician post-accident on February 24, 2020. She described muscle stiffness and pain in both shoulders and the upper and lower back. Dr. Dobkin diagnosed post-MVA myalgias (muscle pain), and recommended physiotherapy, chiropractic treatment and massage therapy. Baclofen was also prescribed.
11On May 15, 2020 the applicant again presented with post-MVA myalgias and was prescribed naproxen. The applicant was also advised to use a heating pad and to continue gentle stretches and physiotherapy exercises.
12I find that neither the visit on February 24, 2020 or May 15, 2020 demonstrate an injury which warrants removal from the MIG as myalgias are a muscular injury which falls within the MIG.
13The applicant has also submitted as evidence clinical notes and records from Humber Civic Care Centre where she had been undergoing physical rehabilitation treatment. These notes cover a period starting shortly after the accident on February 24, 2020 and with the last documented visit on July 22, 2021. While it is noted that the applicant received physical rehabilitation treatment for over a year following the accident, I find that these documents do not provide evidence of an injury or impairment which falls outside the MIG.
14The respondent has submitted a s. 44 evaluation from Dr. Chaudry, who assessed the applicant on December 7, 2020. Dr. Chaudry found that the applicant has suffered soft tissue injuries that would be consistent with “minor injuries” as defined by the Schedule.
15The applicant also submits that they should be removed from the MIG due to a psychological impairment, pointing to a consultation report from Ms. Carol Kwon, Registered Social Worker, dated April 2, 2020. This report recommends that the applicant undergo a psychological assessment and cognitive behavioural therapy.
16The respondent points to the s. 44 report of Dr. Syed. Dr. Syed saw the applicant on January 9, 2021 and found that the applicant is not suffering from any psychological impairment.
17In her report, Ms. Kwon recommends that the applicant should receive a psychological evaluation and cognitive behavioural therapy. Ms. Kwon does not diagnose or identify a psychological impairment. I find that this falls short of the burden required to find that the applicant has sustained a psychological impairment that falls outside the MIG. As a Registered Social Worker, Ms. Kwon is not qualified to make a diagnosis of a psychological impairment and there is no corroborating evidence to support this claim.
18Based on the above, I find that the applicant has failed to prove injuries that fall outside of the MIG.
The applicant is not entitled to any of the disputed treatment plans
19Neither party submitted evidence regarding the amount of medical and rehabilitation benefits paid to the applicant to date. However, given my finding that the MIG applies to the applicant, it is unnecessary to consider the reasonableness and necessity of the disputed treatment plans as each plan proposes treatment beyond the $3,500 MIG limit.
20The second pages of the June 22, 2020, October 19, 2020, January 20, 2021 and April 28, 2021 OCF-18s indicate that each of these treatment plans propose treatment outside the MIG framework. The applicant did not provide submissions to refute this or indicate to the Tribunal that there are funds remaining. Again, as I have found that that applicant is not entitled to treatment beyond the MIG, I therefore find that the applicant is not entitled to the June 22, 2020, October 19, 2020, January 20, 2021 and April 28, 2021 treatment plans.
21The May 26, 2021 OCF-18 was not submitted as evidence by the applicant. Without the treatment plan as evidence, and given my finding that the MIG applies to the applicant’s claim, entitlement cannot be awarded.
The applicant is not entitled to interest
22As there are no benefits owing, no interest is payable pursuant to s. 51.
ORDER
23For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries as defined under the Schedule;
ii. The applicant is not entitled to any of the disputed treatment plans;
iii. No interest is payable; and
iv. This application is dismissed.
Released: January 16, 2024
Julian DiBattista
Vice-Chair