Ranger v. Belair Insurance Company Inc., 2024 CanLII 59546

Citation: Ranger v. Belair Insurance Company Inc., 2024 ONLAT 22-004216/AABS

Licence Appeal Tribunal File Number: 22-004216/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:

Andrea Ranger

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

Adam O’Brodovich, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Andrea Ranger, the applicant, was involved in an automobile accident on April 8, 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 Insurance Company Inc., 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?

ii. Is the applicant entitled to $2,730.00 for psychological services, proposed by 101 Assessments in a treatment plan dated July 12, 2021?

iii. Is the applicant entitled to $2,460.00 for a Psychological Assessment, proposed by 101 Assessments in a treatment plan dated May 26, 2021?

iv. Is the applicant entitled to $ 2,460.00 for a Chronic Pain Assessment, proposed by 101 Assessments in a treatment plan dated June 12, 2021?

v. Is the applicant entitled to $426.19 ($1,303.05 less $876.86 approved) for physiotherapy services, proposed by 101 Assessments in a treatment plan dated February 2, 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?

3In her submissions for this written hearing, the applicant confirmed that she was withdrawing the issue of income replacement benefits.

RESULT

4I find that:

i. The applicant has not established that her accident-related impairments warrant removal from the MIG.

ii. The applicant is not entitled to the treatment plans in dispute or interest.

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

ANALYSIS

Minor Injury Guideline

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. 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.”

6An 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 any accident-related minor injury 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.

7The applicant submits that she should be removed from the MIG due to psychological impairment, pre-existing conditions and chronic pain.

The applicant has not established psychological impairments warranting removal from the MIG

8The applicant submits that she has developed accident-related psychological impairments, relying on a psychological assessment report of Lital Grinberg, MA, C. Psych. Assoc., RP. In a report dated May 26, 2021, Ms. Grinberg diagnosed the applicant with Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, Somatic Symptom Disorder with Predominant Pain and Specific Phobia: Vehicular. As a result of these psychological diagnoses, the applicant submits that she should be removed from the MIG.

9I find that the applicant has not led sufficient medical evidence of an accident-related psychological impairment. The applicant attended at her family physicians’, Dr. Eugene Chan and Dr. Vivienne Ang’s, office regularly in the years post-accident. She reported physical complaints, pain and numerous medical concerns unrelated to the accident. However, the applicant does not direct me to any clinical notes and records (“CNR”) entry where she was diagnosed with a psychological impairment, was prescribed psychotropic medication, or where a referral for psychological treatment was made.

10From my review of Dr. Chan/Ang’s CNRs, I note a single entry where accident-related psychological symptoms were reported. A week after the accident, Dr. Chan noted “stress” in relation to the MVA and being a single mother amidst COVID. The applicant does not direct me to any other CNR entry where other accident-related psychological symptoms were reported. The next entry I note relating to any psychological symptoms was almost two years later, on January 12, 2022. However, at this visit the applicant required emotional support due to her marital breakdown. There is no reference to the subject accident.

11The respondent conducted its own s. 44 psychological assessment. In a report dated August 19, 2021, Dr. Terra Seon noted that during the assessment the applicant denied experiencing any significant symptoms of anxiety, depression or PTSD that interfered with her overall level of functioning, and found that there were no objective findings to support a psychological diagnosis.

12The applicant argues that the reason the respondent’s assessor found improvement in her psychological condition, was because its assessment was conducted nearly four months after the applicant’s s. 25 assessment. She submits that it would be expected that there would be some improvement in her condition. I am not persuaded by the applicant’s argument. When comparing the s. 25 psychological assessment of Ms. Grinberg to the s. 44 report of Dr. Seon, I prefer the respondent’s report. Dr. Seon’s’ finding of an absence of psychological impairments is consistent with the objective medical record, particularly the CNRs of the applicant’s family physicians. Given that the applicant attended Dr. Ang’s office regularly in the years post-accident, I place significant weight on the family physician’s CNRs.

13As such, I find that the applicant has not established a basis for removal from the MIG on psychological grounds.

The applicant has not established pre-existing impairments that warrant removal from the MIG

14The applicant submits that prior to the accident she was diagnosed with sciatica and thoracolumbar scoliosis, both of which hindered recovery within the MIG. The applicant further argues that the accident aggravated her sciatica.

15The respondent disputes that either of these pre-existing conditions warrant removal from the MIG. It relies on its General Practitioner s. 44 assessment report of Dr. Michael Hanna, dated April 2, 2021. Dr. Hanna diagnosed the applicant with myofascial sprain/strain of the cervical, thoracic and lumbar region superimposed on preexisting low back complaints with radiation into the right lower extremity. The respondent submits that Dr. Hanna voiced concerns with discrepancies and exaggeration in the applicant’s complaints and found that the applicant’s accident-related injuries could be treated within the MIG.

16While I agree with the applicant that the medical record establishes that she suffered from preexisting impairments of sciatica and thoracolumbar scoliosis, the applicant has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that these pre-existing injuries impacted on her ability to achieve maximum medical recovery under the MIG. From my review of the CNRs of Dr. Chan/Ang, it appears that the applicant’s sciatica was initially aggravated by the accident. However, this did not appear to persist past the first 6-7 months post-accident, and the applicant has not led evidence that this precluded recovery within the MIG.

17In the first few months post-accident, the applicant’s family physician noted that the applicant’s past sciatica was aggravated. On May 30, 2020 Dr. Ang noted that the applicant’s sciatica was worsening. However, despite attending for medical visits numerous times for pregnancy-related concerns over the following five months, no further complaint was noted with respect to sciatic pain until November 20, 2020. On this date the applicant requested a letter for a leave of absence from work. For the remainder of 2020 and throughout 2021 the applicant continued to regularly attend Dr. Ang’s office for unrelated medical conditions. The next reference to sciatica was more than a year later on January 12, 2022.

18Although the applicant references this January 12, 2022 CNR entry as evidence of her accident-related impairment, from my review the report of sciatica was not linked to the accident. Rather, Dr. Ang referenced the applicant’s weight gain, that she had suffered from sciatica since 2014, that it had started with her first pregnancy, and that it had now worsened. There is no reference in this summary of the sciatica to the subject accident as a cause of or aggravating factor for the applicant’s sciatic pain. I agree with the respondent that the applicant has not provided any medical opinion that her preexisting conditions impeded recovery within the MIG.

19As part of his s. 44 assessment, Dr. Hanna expressly considered the applicant’s preexisting conditions. He noted that her preexisting sciatic complaints may have been exacerbated by the accident, but that they would not prevent her from achieving maximal medical recovery under the MIG.

The applicant has not established chronic pain warranting removal from the MIG

20Finally, the applicant points to her sciatic pain as evidence that she has developed accident-related chronic pain. She submits that a chronic pain diagnosis is not required for removal from the MIG. Rather, the applicant points to her ongoing pain complaints to her family physician and her reports to the respondent’s s. 44 assessor Dr. Hanna that her back pain was still at the level of 9/10 more than a year post-accident.

21I find that the applicant has not met her onus of establishing pain of the duration, severity and functionally disabling extent necessary to warrant removal from the MIG.

22Although the applicant cites the CNRs of her family physicians, I do not find that they support her claim of ongoing accident-related pain past the first seven months post accident. The only CNR entry the applicant directs me to after November 20, 2020 where back pain is reported, was on January 12, 2022. However, as previously noted, I did not find that this CNR entry related to accident-related sciatic pain. There is no reference in the CNRs to any chronic pain diagnosis, referral to a pain specialist, ongoing treatment for pain symptoms or prescriptions for pain medication.

23As such, I find that the applicant has not met her onus to prove that she has developed accident-related chronic pain warranting removal from the MIG.

24In its submissions the respondent confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

Award

26Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

27The applicant has not provided specific submissions as to why an award is warranted. Further, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. Accordingly, the applicant’s request for an award is denied.

ORDER

28For the reasons outlined above, I find that:

i. The applicant remains in the MIG;

ii. The applicant is not entitled the treatment plans in dispute, or interest;

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

29The application is dismissed.