Citation: Dennis v. Peel Mutual Insurance Company, 2024 ONLAT 22-004829/AABS

Licence Appeal Tribunal File Number: 22-004829/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:

Cindy Dennis

Applicant

and

Peel Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Armin Mosaffa, Counsel

For the Respondent:

Evan A. Argentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Cindy Dennis (the “Applicant”) was involved in an automobile accident on November 5, 2019, and sought benefits from Peel Mutual Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the minor injury definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute on that basis. The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (the “MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $2,776.61 for a chiropractic treatment plan recommended by Healthmax, dated January 3, 2020?

iii. Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4I find that the Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

5The Applicant is not entitled to the treatment and assessment plan in dispute, nor interest.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck near the rear end on the passenger side by another vehicle that was changing lanes. No ambulance or police attended at the scene of the accident and the Applicant was able to drive her vehicle to the collision reporting station and then home. She claims that she began to experience post-concussion symptoms, headaches, severe back, neck and shoulder pain, as well as psychological injuries following the accident. The Respondent disagrees and submits that the Applicant’s back pain is related to her pregnancy and/or giving birth, and that she never sustained a psychological injury, concussion, nor developed chronic pain as a result of the accident.

ANALYSIS

Minor Injury Guideline (“MIG”)

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

9For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

Psychological injuries

10I find no compelling evidence demonstrating that the Applicant suffers from a psychological injury as a result of the accident.

11The clinical notes and records (“CNRs”) from Dr. A. Modi and HealthMax fail to indicate that the Applicant suffered an accident-related psychological injury. The Applicant was pregnant at the time of the accident and engaged in well-baby care with Dr. Modi, which included ongoing monitoring of her psychological wellbeing. The Applicant never mentioned the accident during a prenatal visit with Dr. Modi on November 21, 2019, about 2 weeks post-accident, and reported that she felt good at the time and raised no other concerns. During a post-natal visit on June 11, 2020, the Applicant reported that she is not feeling stressed at all. Dr. Modi’s CNRs include one instance where the Applicant reported to find herself stressed and crying and has not felt well since the accident. This occurred on October 14, 2020 – about a year following the accident. Dr. Modi counselled the Applicant during that appointment and offered medication and a referral to therapy. I give little weight to this one instance in light of the other entries in Dr. Modi’s CNRs that suggest any psychological symptoms are subclinical and do not warrant therapy.

12I prefer the opinion of Dr. A. Syed, psychologist, in the report dated April 28, 2020. Dr. Syed assessed the Applicant and concluded that she does not appear to be significantly impaired psychologically and that there are minimal indications that she may have any current or active depressive of anxiogenic experience. I find Dr. Syed’s opinion and report to be consistent with Dr. Modi CNRs. Psychometric testing performed during the assessment revealed minimal impairment due to anxiety, and mild in post-traumatic stress and depression. Dr. Syed acknowledged that the Applicant reported some issues with concentration, sleep, and forgetfulness, but found that the nature and severity of her distress is below any diagnosable threshold and considered to be subclinical.

13Accordingly, I find that the Applicant has not demonstrated that she suffers from a psychological injury as a result of the accident.

Chronic Pain

14I find that the Applicant has not demonstrated that she suffers from a chronic pain condition.

15The Applicant has not been diagnosed with chronic pain or a chronic pain condition. The CNRs from Dr. Modi and from HealthMax include no diagnosis of chronic pain by a qualified healthcare practitioner and the Applicant has not directed me to any such diagnosis. The absence of a diagnosis of chronic pain is consistent with the findings of Dr. A. Sekyi-Otu, orthopaedic surgeon. Dr. Sekyi-Otu assessed the Applicant and issued a report dated February 27, 2020. In that report, Dr. Sekyi-Otu diagnosed the Applicant with uncomplicated myofascial strains to the neck, back, and shoulders and concluded that she sustained a minor injury.

16The Applicant has not demonstrated that she meets at least three of the six criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). While the AMA Guides’ provisions about chronic pain are not incorporated into the Schedule, this Tribunal has consistently applied them as a useful interpretive tool on chronic pain. The Applicant was prescribed Naproxen and Tylenol 3 following the accident, but there is no evidence indicating that she is dependent on or abusing medication or other substances. She led no evidence to suggest that she is excessively dependent on family members or healthcare providers or sustained any secondary physical deconditioning due to disuse following the accident. The Applicant does not suffer from an accident-related psychological injury, and she remains independent with her personal care tasks and resumed employment as a hairstylist/hairdresser.

17In light of the absence of a diagnosis of a chronic pain condition, and by not meeting at least three of the six criteria for a chronic pain condition, I conclude that the Applicant has not sustained a chronic pain condition as a result of the accident. Accordingly, I find that her injuries are rightly captured in the minor injury definition in section 3 of the Schedule.

Other Injuries

18I find that the Applicant has not demonstrated that the other injuries highlighted in her submissions fall outside of the minor injury definition.

19The Applicant’s submissions referred to an MRI report of February 7, 2021, which showed mild disc bulging at L4-L5 and L5-S1 with indication of disc bulge with annular fissure at the latter. She also made reference to leg irritation and numbness, possibly suggesting a neurological injury. In response, the Respondent submits that the MRI was conducted due to suspected sciatica, which is unrelated to the accident.

20I find on a balance of probabilities that the mild disc bulges appear to be associated with low back pain that is unrelated to the accident. Dr. Modi reviewed the MRI results with the Applicant, and the CNRs from that date refer to osteoarthritis and make no mention of the accident. Further, the Applicant’s submissions omit that the MRI found no significant canal narrowing, her initial injury reports focused on her neck, upper back, and shoulder rather than lower back issues, and she advised Dr. Sekyi-Otu that her leg numbness was pregnancy-related.

21Considering the above, I find that the Applicant sustained a minor injury as a result of the accident.

22The Applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The treatment plan in dispute proposes goods and services that fall outside the MIG. As a result, I find that the Applicant is not entitled to the treatment and assessment plan, dated January 3, 2020.

Interest

23Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments went overdue, and no interest is payable.

CONCLUSION

24The Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

25The Applicant is not entitled to the treatment plan dated January 3, 2020 because it proposes goods and services outside of the MIG and the $3,500.00 funding limit.