Fatuma Ali v. TD General Insurance Company, 2024 CanLII 41009

Citation: Ali v. TD General Insurance Company, 2024 ONLAT 21-013948/AABS

Licence Appeal Tribunal File Number: 21-013948/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:

Fatuma Ali

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Maka Metreveli, Paralegal

For the Respondent: Benjamin Hutchinson, Counsel

HEARD: By way of written submissions

OVERVIEW

1Fatuma Ali, the applicant, was involved in an automobile accident on November 21, 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, TD General Insurance 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 been exhausted.

ii. Is the applicant entitled to $3,861.85 for physiotherapy services, proposed by Dr. Reza Babaloui in a treatment plan/OCF-18 (“plan”) dated March 16, 2020?

iii. Is the applicant entitled to $3,532.15 for physiotherapy services, proposed by Dr. Reza Babaloui in a plan dated November 27, 2020?

iv. Is the applicant entitled to $3,202.45 for physiotherapy services, proposed by Dr. Reza Babaloui in a plan dated April 23, 2021?

v. Is the applicant entitled to $3,367.30 for physiotherapy services, proposed by Dr. Reza Babaloui in a plan dated July 31, 2020?

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

RESULT

3I find that the applicant sustained a predominantly minor injury as a result of the accident that are treatable within the MIG.

4The applicant is not entitled to any plans in dispute, as the MIG limit has been exhausted.

5Given that no benefits are owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

Minor Injury Guideline

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 person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a 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 should be removed from the MIG on the grounds that her pre-existing psychological conditions prevent her from achieving maximal medical recovery and she suffers from chronic pain as a result of the accident-related injuries. She relies on the clinical notes and records (“CNR”) of her family physician, Dr. Ferase Rammo.

The applicant does not suffer from a pre-existing condition that prevents her from achieving maximal medical recovery if kept within the MIG

9I find the applicant’s pre-existing conditions do not prevent her from achieving maximal medical recovery if kept within the treatment limit of the MIG.

10The applicant submits that her pre-existing anxiety, depression and panic attacks warrant removal from the MIG.

11The respondent concedes that while the applicant was diagnosed with diabetes, high cholesterol, left hand tremors ongoing for years, depression, anxiety and panic attacks prior to the accident, there was no compelling evidence that the applicant’s pre-existing conditions would not prevent her from achieving maximal recovery under the MIG limit.

12I acknowledge that Dr. Rammo diagnosed the applicant with moderate generalized anxiety disorder and mild to moderate major depressive disorder on June 25, 2018, high cholesterol on October 25, 2018, and prescribed Venlafaxine for depression and anxiety on February 6, 2018. Dr. Rammo also regularly counselled the applicant on stress reduction and sleep hygiene prior to the accident.

13However, Dr. Rammo’s post-accident CNRs do not state that the applicant’s pre-existing medical conditions prevented her from achieving maximal medical recovery if kept within the treatment limit of the MIG, as required by s. 18(2) of the Schedule nor is there any other evidence that set out such an opinion and the basis for the applicant to be removed from the MIG.

14Given the lack of compelling medical evidence that her pre-existing medical conditions prevent her from achieving maximal medical recovery if kept within the MIG, I find that the applicant is unsuccessful on this ground of removal from the MIG.

The applicant does not suffer from chronic pain that would warrant removal from the MIG

15I find that the applicant has not provided sufficient evidence that she suffers from a chronic pain condition with functional impairment that would warrant removal from the MIG.

16The applicant submits that she suffered injuries to her back and neck as a result of the accident and relies on Dr. Rammo’s CNR of March 15, 2020, where he diagnosed the applicant with chronic neck and lower back pain.

17The respondent submits that the applicant was only diagnosed with a muscular spasm as a result of the accident and there is no objective evidence of accident-related injury from the diagnostic imaging results that warrant a finding of chronic pain with a functional impairment. The respondent relies on its Insurer’s Examination (“IE”) physiatry report dated August 13, 2020, and Addendum report dated December 14, 2020, both by Dr. Yong-Kyong Michael Ko, physiatrist.

18I am not persuaded by the medical evidence that the applicant suffers from a chronic back pain as a result of the accident, largely due to the sparse post-accident visits with Dr. Rammo regarding her accident-related injuries. Although Dr. Rammo diagnosed the applicant with an accident-related chronic neck and low back pain on March 15, 2020, he stated that the applicant appeared well, and a physical back examination was unremarkable. Diagnostic results revealed that applicant’s cervical spine was normal; and her lumbar spine x-ray revealed mild narrowing of the L5-S1 discs which was either due to disc disease or normal anatomic variant, but otherwise a normal exam.

19The applicant only had nine post-accident appointments with Dr. Rammo in three years, of which only November 21, December 10, 2019, March 15 and July 12, 2020, mentioned the accident and the accident-related injuries. Dr. Rammo ordered an x-ray of the applicant’s thoracic spine during the July 12, 2020 appointment, however no further diagnostic imaging results were tendered in evidence. As the applicant made no accident-related complaints in the subsequent appointments on February 5, July 20, August 23, 2021, and November 1 and 6, 2022, this suggests that the applicant’s accident-related injuries may have subsided. In the CNRs, Dr. Rammo did not state that the applicant had any functional impairment as a result of the accident or provided any referrals to see any physiatrist or orthopedic surgeons to seek further medical attention.

20I prefer Dr. Ko’s IE physiatry report as he examined the applicant in person, reviewed medical documents and opined that there is no evidence of an ongoing nerve impingement or structural or musculoskeletal pathology, and that the applicant only sustained soft tissue injuries to her shoulders and lumbar spine muscles. I am not convinced that the applicant’s complaint of shoulder pain is related to the accident. This is the first time that the applicant mentioned having pain in her shoulders and is not supported by Dr. Rammo’s CNRs.

21In the subsequent Addendum report, Dr. Ko maintained his opinion despite reviewing further medical documents. He stated that “from a musculoskeletal perspective, based on the findings of my assessment and review of the documents, Ms. Ali does not suffer a complete inability to carry on a normal life as a result of the subject accident” and “meet[s] the criteria of a minor injury as described in the MIG.” Given the scope and depth of Dr. Ko’s review and examination and there being no persuasive contrary evidence, I am persuaded by his reports that the applicant’s accident-related injuries are minor.

22The applicant did not adduce further evidence to rebut Dr. Ko’s reports.

23Given the reasons above, I find the applicant sustained a predominantly minor injury as defined by the Schedule and is kept within the MIG and treating limit of $3,500.00.

24As I found the applicant sustained a predominantly minor injury as a result of the accident and is treatable within the MIG and the MIG treating limit has been exhausted, an analysis of whether the disputed plans are reasonable and necessary is not required because they propose treatment outside the MIG and the $3,500.00 funding limit.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that interest does not apply pursuant to s. 51.

ORDER

26I find that the applicant sustained a predominantly minor injury as a result of the accident that are treatable within the MIG.

27The applicant is not entitled to any plans in dispute, as the MIG limit has been exhausted.

28Given that no benefits are owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

29The application is dismissed.