Citation: Rudland v. Intact Insurance Company, 2024 ONLAT 22-005148/AABS

Licence Appeal Tribunal File Number: 22-005148/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:

Ameris Rudland

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Jenna Ng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ameris Rudland, the applicant, was involved in an automobile accident on December 26, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent has submitted that only $796.75 in medical benefits has been paid to date.

ISSUES

3The 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 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $3,192.27 for psychological services, proposed by Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) submitted on February 14, 2022, and denied on February 15, 2022?

iii. Is the applicant entitled to $2,486.00 for chronic pain assessment, proposed by Q Medical in a plan submitted on November 11, 2021, and denied on November 12, 2021?

iv. Is the applicant entitled to $2,486.00 for psychological assessment, proposed by Q Medical in a plan submitted on November 11, 2021, and denied on November 12, 2021?

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

RESULT

4The applicant has not proven injuries which warrant treatment beyond the MIG limits.

5The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

ANALYSIS

The applicant’s injuries are minor as defined by the Schedule

6I find that the applicant’s accident-related injuries are minor in nature and fall within the MIG limits.

7An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

8The applicant submits that they should be removed from the MIG based on a psychological condition or chronic pain with a functional impairment.

The applicant has not proven an accident-related psychological impairment

9I find that the applicant has not proven they suffer from an accident-related psychological impairment which would warrant removal from the MIG.

10The applicant submits that they should be removed from the MIG as they have been diagnosed with Adjustment Disorder and Specific Phobia by Dr. D Fink, psychologist, in an assessment conducted January 5, 2022. I do not find this evidence persuasive.

11The respondent points to a s.44 assessment conducted on April 26, 2022. In this assessment, Dr. H Waiser, psychologist, found that the applicant’s condition did not warrant a psychological diagnosis. The respondent further highlights clinical notes and records from Ms. K Greenside, psychotherapist, covering the period of September 5, 2020 to February 16, 2023. The respondent submits that there is no mention of the accident in these notes.

12In reviewing the clinical notes and records of Ms. Greenside, I note that the applicant was seen 46 times and did not once mention the accident, let alone injuries or impairments sustained in the accident.

13In his report, Dr. Waiser noted that he reviewed a copy of Ms. Greenside’s clinical notes and records as part of his assessment. Dr. Fink did not review Ms. Greenside’s notes prior to her assessment.

14I give limited weight to Dr. Fink’s diagnosis for two reasons. Firstly, Dr. Fink did not review the clinical notes and records documenting the applicant’s psychotherapy treatment. Secondly, Dr. Fink states that the applicant has been seeing a psychotherapist for both accident related and pre-existing trauma. This statement is not supported by the clinical record created from those sessions.

15This leads to doubt regarding the diagnosis of Dr. Fink as it is not corroborated by the contemporaneous records from Ms. Greenside’s psychotherapy sessions. For these reasons, I prefer Dr. Waiser’s s.44 report and accept his findings that the applicant’s condition does not warrant a psychological diagnosis.

16I find that the applicant has not suffered a psychological impairment which would warrant removal from the MIG.

The applicant has not proven a diagnosis of chronic pain with a functional impairment

17I find that the applicant has not proven they suffer from accident-related chronic pain syndrome with a functional impairment.

18The applicant submits that they were diagnosed with chronic pain syndrome by Dr. J Herman in an assessment on January 18, 2022. The applicant also references clinical notes and records from various practitioners at Athletic Edge Sports Medicine clinic covering a period of April 20, 2021 to December 7, 2021. The applicant submits that these notes reflect a chronicity and complexity of symptoms and impairment surpassing the typical categorization under the MIG. I do not find this evidence persuasive.

19The respondent highlights a s.44 assessment conducted by Dr. R Moola, physician, on December 15, 2021. In his report, Dr. Moola states that the applicant sustained an uncomplicated soft tissue strain injury which falls within the MIG.

20When reviewing the clinical notes at Athletic Edge Sports Medicine, I note that many of the records address treating post-concussive syndrome. A concussion was not mentioned by either Dr. Fink or Dr. Herman in their s. 25 reports as an accident-related injury. Dr. Herman specifically references a prior concussion the applicant sustained in 2015, and Dr. Fink doesn’t mention that the applicant sustained a concussion.

21There has not been any other medical evidence adduced that identifies the existence of a concussion as a result of the accident. Therefore, I give limited weight to these records as I’m not satisfied that they reference accident-related injuries.

22When reviewing the report of Dr. Herman, I note that the applicant reported neck pain at a 3 out of 10 with 10 being the most severe. I also note that Dr. Herman, in her finding of chronic pain syndrome, did not have access to the clinical notes and records of the applicant’s psychotherapist where has not once mentioned accident-related pain.

23There has also been no evidence provided to the Tribunal that would indicate the applicant was seen by a physician in the 12-plus month period following the accident. The first record of a physician’s visit occurred on April 20, 2021, almost 16 months post-accident.

24As the applicant’s claim of chronic pain syndrome is not corroborated in the contemporaneous medical records provided to the Tribunal, I give little weight to Dr. Herman’s diagnosis.

25I find that the applicant has not proven on a balance of probabilities that they suffer from accident-related chronic pain with a functional impairment that would warrant removal from the MIG.

The applicant is entitled to treatment within the MIG limits

26Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

27Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and the benefits in dispute are deemed reasonable and necessary. Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

Interest

28Interest is payable on overdue benefits in accordance with s. 51 of the Schedule.

ORDER

29For the reasons above, I order that:

i. The applicant sustained a predominantly minor injury as a result of the subject accident. They remain within the MIG and are subject to its $3,500.00 limit for treatment.

ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.