Licence Appeal Tribunal File Number: 22-002457/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:
Lisa Kang
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Reynold Kim, Counsel
For the Respondent: Sarah Bedard, Counsel
HEARD: By written submissions
OVERVIEW
1Lisa Kang, the applicant, was involved in an automobile accident on January 5, 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, Intact Insurance, 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 limit? Note: The parties agree the MIG limits have not been exhausted with $273.57 remaining.
ii. Is the applicant entitled to $2,726.78 for physiotherapy treatment proposed by Focus Physiotherapy Clinic in a treatment plan/OCF-18 (“plan”) dated October 1, 2020?
iii. Is the applicant entitled to $2,645.66 for physiotherapy treatment proposed by Focus Physiotherapy Clinic in a plan dated June 8, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
4The applicant is not entitled to the treatment and assessment plans in dispute, nor interest.
ANALYSIS
Minor Injury Guideline (MIG)
5The applicant’s injuries are predominantly minor and treatable within the MIG.
6Section 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.”
7An 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.
8The applicant submits that she was injured in the accident. Dr. Matthew Kim, her family doctor, observed significantly limited range of motion in her lower back and right leg. According to the applicant, she reported ongoing low back pain after the accident and Dr. Kim ordered an MRI of her lumbar spine which took place on November 12, 2021. The MRI revealed annular bulging and a broad-based right lateral annular tear at the L5-S1. The applicant asserts that her chronic low back pain was caused by the accident and that this injury takes her out of the MIG.
9The respondent submits that the applicant consulted Dr. Kim numerous times after the accident but did no mention low back pain until nineteen months after the accident. The insurer’s examination by Dr. Greg Gelman, physician, dated February 1, 2022, reviewed the MRI and concluded that it was unclear whether the annular tear was caused by the accident. As such, the respondent asserts that the applicant’s injuries are minor injuries as defined in the Schedule.
10The clinical notes of Dr. Kim show that the applicant consulted him on January 8, 2020, which is three days after the accident. She reported pain on the right side of her body and on the left side of her lower abdomen. Her range of motion was reduced in her low back and right side of her body, especially in the leg.
11The applicant consulted Dr. Kim on February 14, 2020 where she reported that her pain from the accident was “better.” There is no further mention of the accident in Dr. Kim’s clinical notes which conclude on July 11, 2022.
12The first post-accident complaint of back pain after the accident occurred on August 6, 2021. This is inconsistent with the applicant’s submission that she continued to complain of low back pain until an MRI was requisitioned for her back. The notes show that no complaints of back pain were made between January 8, 2020 and August 6, 2021.
13The MRI, dated November 12, 2021, reveals L5-S1 spondylosis. As noted by the applicant, the MRI documents “a right annular tear and disc protrusion without exiting nerve impingement.”
14Dr. Gelman first examined the applicant on September 9, 2020 for an IE. The applicant reported low back pain, and that this pain had increased in the previous month. She reported a “constant stiffness and pain sensation that can be sharp and burning.” He physically examined the applicant and found that the lumbar spine range of motion “revealed forward flexion with her fingertips to her lower shins. Extension was full. Both manoeuvres caused lower lumbar discomfort. Lateral bending and rotation were full bilaterally, but all manoeuvres were accompanied by lower lumbar discomfort.” He concluded that the applicant sustained strain/sprain injuries to her lumbar spine, as well as various soft tissue contusions and abrasions.
15In a subsequent IE that took place on May 18, 2022, Dr. Gelman conducted another physical examination and reviewed the MRI. He concluded that the evolution of the applicant’s symptoms and the timing of the MRI make it difficult to connect the MRI results with the accident.
16The MRI shows that the applicant suffered lateral annular tear in her lumbar spine after the accident. However, there is no clear nexus between this tear and the accident. The applicant did not report ongoing back pain after the accident to her family doctor. She told Dr. Gelman that her back pain suddenly increased in August, 2020, but this was seven months after the accident. It is possible that this injury was caused by the accident, but the mere possibility of causation is not enough to meet the “balance of probabilities” evidentiary threshold. For these reasons, I find that the applicant has not established that she sustained an injury in the accident that removes her from the MIG.
17As I have found the applicant’s injuries fall within the MIG, it is unnecessary to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.
Interest
18As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
19The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
20The applicant is not entitled to the treatment and assessment plans in dispute, nor interest.
21The application is dismissed.
Released: April 11, 2024
Harry Adamidis
Adjudicator