Tulloch v. Economical Insurance Company, 2024 CanLII 51697

Citation: Tulloch v. Economical Insurance Company 2024 ONLAT 22-002889/AABS

Licence Appeal Tribunal File Number: 22-002889/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:

Oliveth Tulloch

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Patrick D'Aloisio, Counsel

For the Respondent: Daniel Smith, Counsel

HEARD: By written submissions

OVERVIEW

1Oliveth Tulloch, the applicant, was involved in an automobile accident on October 16, 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, Economical 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 $35.24 ($1335.24 less $1,300.00 approved) for chiropractic services, proposed by In Motion Rehabilitation in a treatment plan/OCF-18 ("plan") dated April 15, 2020?

iii. Is the applicant entitled to $2,300.00 for chiropractic services, proposed by In Motion Rehabilitation in a treatment plan dated July 22, 2020?

iv. Is the applicant entitled to $2,175.62 for chiropractic services, proposed by TDI Chronic Pain and Medical Assessments Inc. in a treatment plan dated September 30, 2020?

v. Is the applicant entitled to $3,261.52 for chiropractic services, proposed by In Motion Rehabilitation in a treatment plan dated February 26, 2021?

vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

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

4It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.

5The respondent is not liable to pay an award.

6The applicant is not entitled to interest as there are no overdue benefits.

ANALYSIS

The applicant's impairments fall within the MIG

7I find that the applicant's injuries fall within the MIG.

8Section 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. 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".

9An 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 from their minor injury if they are kept with 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.

10The applicant submits she should be removed from the MIG because of a psychological impairment, persistent and chronic pain, concussion symptoms, worsening of pain in the lumbar spine with degenerative changes, and worsening of pre-existing right knee complaints with degenerative changes. These conditions are noted in an OCF-3 by Gail Wright, chiropractor, dated November 22, 2019, and in her clinical notes and records.

11The respondent submits the applicant's injuries are minor. It relies on a s. 44 assessment by Dr. Mile Stefanac, general practitioner, who found no objective evidence of any impairment and concluded that the applicant's injuries were treatable within the limits of the MIG.

12I am persuaded by the findings of Dr. Stefanac's assessment report. I note that he assessed the applicant and reviewed several medical records. He examined the applicant, noted that she reported headaches and pain in the neck and back areas, and concluded that her injuries were minor in nature and treatable within the MIG.

13Importantly, Dr. Stefanac's findings are corroborated by the existing clinical notes and records of the applicant's family physician, Dr. Armaghan Nematullah, in that the applicant's complaints from the subject accident included neck and back pain. There are no complaints of a psychological condition (anxiety or depression), or any mention of chronic pain.

14I place less weight on the recommendations of Dr. Wright because her conclusions are not supported by the contemporaneous records of Dr. Nematullah. While the applicant saw Dr. Nematullah on several visits after the subject accident, Dr. Nematullah did not make a diagnosis of chronic pain or functional impairment due to the accident, nor did he note any complaints of anxiety, depression or any psychological impairment. In addition, contrary to the applicant's submissions, Dr. Nematullah did not attribute the degenerative changes in the lumbar spine and right knee to the accident.

15Accordingly, on the submissions and evidence, I find that the applicant has failed to demonstrate that her injuries from the subject accident are not minor, and she therefore remains subject to the MIG.

The applicant is not entitled to the treatment plans in dispute

16It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans for a psychological assessment and massage therapy as they propose goods and services outside the MIG and the $3,500.00 funding limit.

The insurer is not liable to pay an award

17The applicant is seeking an award under s. 10 of O. Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

18In examining whether an insurer's conduct in withholding or denying a benefit warrants an award, the case law is well established that, the insurer's behaviour must be seen as "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate".

19I do not find that an award is payable in this case. The respondent properly paid benefits within the MIG, and there are no other benefits owed to the applicant.

ORDER

20For the reasons outlined above, I order the following:

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

2. It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.

3. The respondent is not liable to pay an award.

4. The applicant is not entitled to interest as there are no overdue benefits.

Released: June 4, 2024

__________________________

Samia Makhamra

Adjudicator