Citation: Kang v. Dominion of Canada General Insurance Company (Travelers), 2024 ONLAT 21-015857/AABS

Licence Appeal Tribunal File Number: 21-015857/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:

Susanna Kang

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Jae Hyon Cho, Counsel

For the Respondent:

Shari Hatfield, Counsel

HEARD: In Writing

November 19, 2023

OVERVIEW

1The applicant was involved in an automobile accident on August 1, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied benefits by the respondent, the Dominion of Canada General Insurance Company (Travelers) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant commenced a claim for accident benefits and was treated within the MIG and discharged. The applicant then sought funding for medical benefits outside the MIG, which the respondent denied on account of its position that the applicant’s injuries are minor, as defined by the Schedule.

3The applicant’s position is that her injuries do not fit the definition of “minor injury” within the MIG. If correct, I must then address whether the medical treatment and medication expenses claimed are reasonable and necessary.

4The applicant also claimed entitlement to a non-earner benefit (“NEB”), which the respondent also denied on the basis that the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident.

ISSUES

5The 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?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from December 18, 2020 to August 1, 2022?

iii. Is the applicant entitled to $475.00 ($1875.00 less $1,400.00 approved) for chiropractic services, proposed by Calvin Kim Chiropractor Professional Corporation in a treatment plan/OCF-18 (“plan”) submitted December 16, 2020 and denied December 29, 2020?

iv. Is the applicant entitled to $490.86 ($899.91 less $409.05 approved) for chiropractic services, proposed by Calvin Kim Chiropractor Professional Corporation in a treatment plan submitted March 1, 2021 and denied March 15, 2021?

v. Is the applicant entitled to $2,200.00 for an orthopaedic assessment, proposed by Direct Comfort Ltd. in a treatment plan dated November 6, 2021 and denied October 21, 2021?

RESULT

6Based on the evidence before me, I find that the applicant sustained a minor injury and is subject to the MIG funding limit of $3,500.00. The applicant is not entitled to the medical benefits in dispute.

7I also find that the applicant has failed to establish that she has suffered a complete inability to carry on a normal life as a result of the accident and therefore is not entitled to NEB.

Procedural Issue

The Applicant’s late evidence

8The respondent objected to the applicant’s reliance on a report, dated March 28, 2023, of a CT scan that was dated March 25, 2023. The respondent asserts that this report was served outside the production deadlines established at the case conference and should be excluded from consideration.

9The case conference of this application was held on October 25, 2022. The resulting case report and order of Adjudicator Hartwick set out two productions deadlines at 45 days and 100 days after the case conference. These two deadlines correspond to December 9, 2022 and February 2, 2023.

10Given that the CT scan did not even take place until after the last deadline for productions, the applicant’s reliance on this evidence clearly does not comply with the production deadlines the parties agreed to. The applicant also did not bring a motion to admit this late evidence and did not make any submissions in reply justifying its consideration or opposing the respondent’s request that this document be excluded.

11In view of the forgoing, I excluded the report and CT scan and have not considered it in rendering my decision.

ANALYSIS

The Applicant Has Failed to Establish That She Is Entitled To NEBs

12I find that the applicant has failed to establish that she is entitled to NEBs as she has not suffered an impairment that prevents her from engaging in substantially of the activities she engaged in prior to the accident.

13Section 12(1) provides that an insurer shall pay an 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

14The applicant’s submissions fall far short of meeting her burden. The applicant has not applied the correct test, stating in her submissions:

The treatment plans submitted on December 16, 2020, March 1, 2021 and November 6, 2021 as well as the non-earner benefit would seem to be both reasonable and necessary given the above definition of Medical Benefits in the SABS. It is clear that the Applicant suffered serious injuries in the subject accident that still require medical treatment.

15The test is not whether NEBs are reasonable and necessary because the applicant’s injuries require further medical treatment. The applicant has failed to even mention, let alone establish, that she suffers a complete inability to carry on a normal life as a result of the accident by conducting the type of analysis required by Heath.

16The applicant’s submissions also do not explain her pre- and post-accident abilities with reference to medical evidence. Without this comparison, the applicant has failed to meet her burden to establish the accident has resulted in an impairment that prevents her from engaging in substantially all of her pre-accident activities, as contemplated by Heath.

17In contrast, the respondent’s submissions and evidence demonstrate that the applicant has been able to engage in substantially all of her pre-accident activities.

18The respondent relies on the physiatry assessment of Dr. Saad Naaman, conducted on October 30, 2020. During this assessment, the applicant reported that she was independent with respect to many activities of daily living including bathing, grooming, cooking, shopping and driving.

19The respondent also relies on the in-home functional assessment of Angela Bertolo, registered occupational therapist, conducted on November 25, 2020. During this assessment, the applicant demonstrated the ability to independently carry out numerous activities of daily living including bathing, dressing, meal preparation and housework.

20Finally, I note that during her physiatry assessment by Dr. Getahun, the applicant reported beginning part-time work in a flower shop in September 2021. Beginning employment some 14 months after the accident is inconsistent with suffering a complete inability to carry on a normal life as a result of and within 104 weeks after the motor vehicle accident.

21Considering the evidence and submissions, I find that the applicant has failed to establish that she has suffered a complete inability to carry on a normal life as a result of the accident and therefore is not entitled to an NEB.

The Applicant Has Failed To Establish That The MIG Does Not Apply

22I find that the applicant has failed to establish that she has suffered more than a minor injury or that a pre-existing injury prevents maximal recovery and she is therefore not entitled to treatment in excess of the MIG limit.

23Section 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.”

24An 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.

25The applicant claims to have a pre-existing medical condition, being pathology of the lumbosacral spine, that precludes maximal recovery within the MIG funding limit. The applicant’s submission on this issue are brief, and rely predominantly on an orthopaedic medical examination by Dr. Tajedin Getahun, conducted on November 4, 2021.

26The respondent notes that the applicant has failed to provide any documented evidence originating prior to the motor vehicle accident of the pathology of the lumbosacral spine and also that the applicant has failed to establish how this pathology will prevent maximal recovery under the MIG, which are requirements for removal from the MIG under s. 18.(2) of the Schedule.

27The applicant relies on Dr. Gethahun’s report in support of her assertion that her pre-existing condition prevents maximal recovery under the MIG. In conducting this examination, Dr. Getahun was only provided with medical records that post-dated the accident and the applicant’s statement that she underwent spinal surgery 20 years ago and has not recovered. Dr. Getahun opined that the applicant’s injuries “do not fall within the Minor Injury Guidelisnes [sic] as she has significant pre-existing pathology of the lumbosacral spine that was aggravated by the mechanism of the motor vehicle collision”.

28I find that the applicant has not provided or referenced any documented medical conditions in her evidence that pre-date the motor vehicle accident. Further, the applicant has not provided any evidence or submissions that explain how the pre-existing pathology of the lumbosacral spine precludes maximal recovery under the MIG limit. This is the test she must meet under s. 18(2) of the Schedule.

29I also note that the applicant’s statement to Dr. Getahun regarding her spinal surgery and lack of recovery are at odds with her statements during her s. 44 occupational therapy assessment. During this assessment, the applicant reported that she fully recovered following back surgery for a “disc problem” in 2005. During the applicant’s section 44 physiatry assessment she denied having any medical history or pre-existing injuries.

30Dr. Getahun’s conclusory statement is insufficient to discharge the applicant’s burden even if there was documented evidence of pre-existing condition that pre-dated the accident because it does not explain how the pre-existing pathology of the lumbosacral spine precludes maximal recovery under the MIG limit.

31The applicant has failed to demonstrate that her pre-existing medical condition, identified as pathology of the lumbosacral spine, precludes maximal recovery within the MIG funding limit. Accordingly, I find the applicant has not demonstrated removal from the MIG is warranted.

The Treatment Plans at Issue

32I find that the applicant has not established that she is entitled to benefits beyond the MIG funding limit.

33As the MIG funding limit has been nearly exhausted, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.

ORDER

34I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. Given that the applicant’s injuries are minor and the $3,500 MIG limit has been exhausted, a determination of whether the treatment plans are reasonable and necessary is not required; and

iii. The applicant has failed to demonstrate that she is entitled to NEBs.

35The application is dismissed.