Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-002357/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:
Paula Morrison
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Clive Forbes
APPEARANCES:
For the Applicant:
Paula Morrison, Applicant Neha Kohli, Paralegal
For the Respondent:
Maryam Younes, Counsel
HEARD:
By Way of Written Submission
OVERVIEW
1Paula Morrison, the applicant, was involved in an automobile accident on February 12, 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, Belair Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are in dispute:
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 limit and in the Minor Injury Guideline (“MIG”)?
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 12, 2019, to February 12, 2022?
If the applicant’s injuries are not considered to be predominantly minor, then:
i. Is the applicant entitled to $5,289.95 for psychological services, recommended by Scarborough Medical Centre (“SMC”) as set out in a treatment plan (“OCF-18”) submitted April 8, 2021?
ii. Is the applicant entitled to $1,995.00 for a psychological assessment, recommended by SMC as set out in an OCF-18 submitted on August 11, 2020?
iii. Is the applicant entitled to $4,089.95 for psychological services, recommended by SMC as set out in an OCF-18 submitted on November 20, 2020?
iv. Is the applicant entitled to $2,486.00 for a chronic pain assessment, recommended by Q Medical as set out in an OCF-18 submitted on February 26, 2021?
v. Is the applicant entitled to $2,350.29 for physiotherapy services, recommended by Complete Care Physiotherapy Centre as set out in an OCF-18 submitted on January 19, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.
ii. The applicant has not demonstrated that she is entitled to the NEB claimed.
iii. The applicant is not entitled to the treatment and assessment plans claimed.
iv. No interest is payable.
ANALYSIS
The applicant has not demonstrated that his impairments are outside of s. 3 of the Schedule and therefore removal from the MIG is not warranted
4The applicant has not demonstrated that she suffers from a psychological impairment or chronic pain that warrants 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 person sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An insured person 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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant on a balance of probabilities.
6The applicant submits that the following factors remove her from the MIG:
her psychological impairments; and
her chronic pain as a result of the accident.
7To this end, she relies on her OCF-3 Disability Certificate, OCF-18 Treatment and Assessment Plans, the s. 25 report of Dr. Rebecca Carriere, psychiatrist, dated October 22, 2020; and the clinical notes and records (“CNRs”) from Dr. Betty Hum, her family physician, CNRs from CAMH, and the CNRs from E-Clinic United Healing.
8The respondent submits that the applicant has not met her burden to prove that she suffers from more than minor injuries, that she has developed a chronic pain condition or that she sustained an actual psychological impairment from the accident or her pre-existing psychological condition worsened as a result of the accident. It relies on the s. 44 reports of Dr. Jason Bacchiochi, clinical psychologist, dated December 4, 2020, and Dr. James Stewart, general practitioner, dated August 12, 2021.
The applicant has not suffered a psychological impairment as a result of the accident
9I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.
10The applicant submits that her psychological impairments justify removal from the MIG. She relies on Dr. Carriere’s report that diagnosed the applicant with major depressive disorder, recurrent episode and adjustment disorder with anxiety as a result of the accident. The respondent submits that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. The respondent relies on Dr. Bacchiochi’s reports who concluded that the applicant is not presenting with any significant accident-related psychological symptoms that would warrant a DSM-5 diagnosis.
11I am not persuaded by the applicant’s assertion that her psychological impairments justify removal from the MIG. I find that the applicant has not met her onus to demonstrate she sustained a psychological impairment as a result of the accident. A review of the applicant’s family physician’s records reveals that the applicant’s history of depression began in 2006 and it was related to difficulties with her family and ex-husband. Furthermore, since the accident, there has only been one medical entry in Dr. Hum’s CNRs that mention the accident. Moreover, on February 6, 2021, Dr. Hum wrote a letter in support of the applicant’s ODSP application appeal, and she made no mention of any accident-related psychological impairments. In addition, on October 4, 2021, approximately one year after Dr. Carriere’s psychological report, Dr. Hum advised the applicant that she had no medical information relevant to the subject accident to forward to the applicant’s lawyer as requested. There is no mention in the medical records of the applicant's family doctor and other treating medical practitioners that she sustained psychological impairments as a result of the accident or that her pre-existing psychological condition worsened because of the accident and negatively impacted her ability to achieve maximum recovery from her accident-related injuries. The applicant also argues that the lack of medical documents does not negate the possibility that the accident has had lasting impacts.
12However, I find that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. Dr. Carriere’s report, which stated the applicant presented with an array of psychological symptoms, is unsupported by the applicant's family physician’s records. I prefer the report of Dr. Bacchiochi because it is consistent with the CNRs of the applicant’s family physician in that it does not find accident-related psychological issue which is supported by the lack of accident-related psychological reporting in the CNRs. Accordingly, I am persuaded by Dr. Bacchiochi’s conclusion that the applicant does not have any accident-related psychological symptoms that meet the DSM-5 diagnostic criteria.
13I find the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.
The applicant does not have chronic pain as a result of the accident
14I find the applicant does not suffer from a functional impairment as a result of accident-related chronic pain.
15To be taken out of the MIG due to chronic pain, the applicant is required to a) have been diagnosed with chronic pain or chronic pain syndrome or b) point me to evidence of consistent severe or functionally disabling pain that affects his day-to-day or work function. Unfortunately, the phrase “chronic pain” is not defined in the Schedule. In assessing the applicant’s claim of chronic pain, I have applied the following factors from paragraph 16 in A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT):
Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.
Whether the applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.
Whether the pain is not a clinically associated sequela to minor injuries.
Whether the applicant’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.
16I find that the applicant does not suffer from chronic pain because of the accident. The applicant relies on the s. 44 occupational therapy report of Mr. Atul Kaul, dated August 10, 2021, who indicated that the applicant complained of intermittent neck, upper back and lower back pain. She argues that even though Mr. Kaul observed functional tolerance the existence of these pains should not be ignored because they might be indicative of underlying issues that could eventually impair her ability to carry on a normal life. The respondent relies on the s. 44 report of Dr. Stewart, dated August 12, 2021, who concluded that the applicant sustained uncomplicated sprain and strain injuries as a result of the accident and that there were no objective clinical findings of ongoing accident-related musculoskeletal impairment. I am persuaded by Dr. Delvin’s findings for the following reasons.
17First, I find that the bulk of the medical and documentary evidence do not support the application’s position that her pain has caused functional impairment and disability. For example, a review of the CNRs of the applicant’s family physician and other treating practitioners a) make no mention of chronic pain or chronic pain syndrome or b) contain any evidence of consistent severe or functionally disabling pain that affects her day-to-day or work function c) do not offer a referral to a chronic pain specialist or suggest any negative impact on her daily activities. Second, I have not been pointed to evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain that would require her to be removed from the MIG.
18Given the above, I find the applicant has failed to establish that she suffers from chronic pain as a result of the accident that warrants removal from the MIG.
The applicant is not entitled to the NEB claimed
19I find that the applicant has not proven on a balance of probabilities that he is entitled to the NEB claimed.
20Section 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. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
21The applicant submits that because of her self-reporting of pain to the s. 44 assessor Mr. Kaul, it is indicative of underlying issues that could eventually impair her ability to carry on a normal life and as such is entitled to NEB. The respondent submits that the applicant is not entitled to NEB and relies on the s. 44 reports of Mr. Kaul, dated August 11, 2021, and Dr. Stewart, dated August 10, 2021, who concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident.
22I find that based on the totality of the medical and documentary evidence the applicant is not entitled to the NEB claimed. Firstly, the applicant did not indicate what are the essential pre-accident tasks she engaged in that she is unable to perform because of the accident. Furthermore, her submission did not include any comparative analysis of her pre- and post-accident activities. Secondly, the records reveal that the applicant was not working before the accident due to psychological difficulties but post-accident she returned to work at an Oxygen Service company. Thirdly, a review of the CNRs of the applicant’s family physician and other treating practitioners do not support her position that the accident resulted in impairment that prevented her from completing all of her pre-accident activities. In addition, I find that Dr. Stewart’s conclusion is consistent with these CNRs because there is no mention in the CNRs that the applicant’s impairments prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
23As such, from the totality of the medical and documentary evidence provided, I find that on a balance of probabilities the applicant has not demonstrated entitlement to NEB.
Since the applicant has not demonstrated that removal from the MIG is warranted the treatment and assessment plans are not reasonable and necessary
24I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As the parties did not identify what if any remains of the MIG limit, and the applicant did not direct me to any portion of the treatment and assessment plans where any MIG balance should be applied, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
Interest
25As there were no overdue payments found, no interest is payable under s. 51.
ORDER
26I find that:
The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
The applicant has not demonstrated that he is entitled to the NEB claimed.
The applicant is not entitled to the treatment and assessment plans claimed.
No interest is payable.
27The application is dismissed.
Released: January 23, 2024
Clive Forbes
Adjudicator```