Citation: Josephs v. Novex Insurance Company, 2024 ONLAT 22-001468/AABS

Licence Appeal Tribunal File Number: 22-001468/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:

Irene Josephs

Applicant

and

Novex Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Alim Ramji, Counsel

For the Respondent:

Yasar Saffie, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Irene B. Josephs (the “applicant”) was involved in an automobile accident on February 23, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Novex Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. The parties agree that the MIG limit is exhausted. As a result, the applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans.

ISSUES

3The issues in dispute are:

1. 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 MIG limit?

2. Is the applicant entitled to the amount of $1,357.00 for physiotherapy services, proposed by Goreway Physiotherapy & Rehabilitation Centre in a treatment plan/OCF-18 (“treatment plan”) submitted on December 17, 2021 and denied December 30, 2021?

3. Is the applicant entitled to the amount of $2,680.00 for chronic pain assessment, proposed by Complete Rehab Centre in a treatment plan submitted February 15, 2022 and denied on March 2, 2022?

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

RESULT

4For the reasons that follow, I find that:

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

PROCEDURAL ISSUE

Adverse inference

5The respondent requests that the Tribunal draw an adverse inference against the applicant for failing to produce various documents within 60 calendar days from the date of the case conference as ordered by the Case Conference Report and Order dated February 11, 2023. The respondent argues that it has been prejudiced in obtaining the full medical records of the applicant, including an updated OHIP summary and updated family doctor records.

6The applicant did not file reply submissions, despite having the opportunity to do so. As such, the applicant’s position is unknown.

7In the circumstances, I find that there is insufficient evidence of prejudice to the respondent to warrant the Tribunal to draw an adverse inference against the applicant for failing to provide updated medical records.

ANALYSIS

Minor Injury Guideline (“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 that she suffers from chronic pain as a result of the accident that warrants her removal from the MIG. She argues that her pain has persisted for more than three to six months following the accident and that it has resulted in functional impairments. She further submits that she meets at least three of the six criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”) for establishing chronic pain, and she relies on T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) and 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT).

11The applicant also relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Jaspreet Perera, Toronto Paramedic Services, Humber River Hospital, and Goreway Physiotherapy and Rehabilitation Centre, a prescription summary, and a chronic pain assessment report dated April 24, 2022 completed by Dr. Grigory Karmy, physician.

12In response, the respondent submits that the applicant sustained predominantly minor injuries as a result of the accident that can be treated within the MIG. The respondent notes that the applicant self-reported that she fully recovered from her accident-related neck, shoulder, knee, and ankle pain. As for her right low back and leg pain, the applicant’s intermittent flare ups can be classified as a clinically associated consequence of minor, soft tissue injuries. The respondent relies on Ilangeshwaran v. Aviva General Insurance Company, 2022 CanLII 8661 (ON LAT) and Khanthaiya v. Travelers Insurance Company of Canada, 2023 CanLII 7302 (ON LAT).

13The respondent also relies on two insurer examination physiatry reports completed by Dr. Ida Cavaliere, physiatrist, both dated February 7, 2023.

The applicant did not sustain injuries that warrant removal from the MIG

14I find that the applicant has failed to prove, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, she remains within the MIG and its $3,500.00 limit on treatment.

15I find that the evidence supports that the applicant sustained soft tissue injuries within the definition of minor injury under s. 3 of the Schedule. Following the accident, the applicant complained of a burning sensation in her legs bilaterally from the knees down and of bilateral shoulder pain. She did not complain of neck or back pain, nor did she lose consciousness. Based on the CNRs of the Humber River Hospital, no diagnostic imaging was ordered. The applicant was examined by Dr. Perera on February 24, 2017, who noted pain to the low back, right shoulder, and bilateral shins. He diagnosed the applicant with soft tissue injuries. He recommended that she undergo massage therapy, and he gave her a prescription for a pain killer and muscle relaxant.

16The applicant continued to experience low back pain as well as left leg and foot pain. While diagnostic imaging of her sacroiliac joint was unremarkable, no diagnostic imaging was ordered for her leg and foot. Moreover, according to the CNRs of Dr. Perera and Goreway Physiotherapy and Rehabilitation Centre, a few weeks after commencing physical therapy, the applicant reported improvement to her low back pain, and within 6 months following the accident, the applicant reported only occasionally experiencing low back pain. Additionally, in a clinical note dated June 1, 2017, Dr. Perera attributed the applicant’s low back pain to her work as a personal support worker. As for her leg and foot pain, the applicant reported occasional pain in the winter, and the use of compression hose was recommended.

17I further find that there is insufficient evidence to support that the applicant suffers from chronic pain with functional impairment as a result of the accident. Although Dr. Karmy diagnosed the applicant with, among other things, chronic pain syndrome, he relies heavily on the applicant’s self-reporting, and there is no other evidence to support his findings.

18I prefer Dr. Cavaliere’s report. She conducted a thorough observational and physical examination of the applicant. She noted that the applicant did not have any pain behaviours during testing and that she did not appear to amplify or magnify her complaints. Further, the applicant reported that her neck, back, shoulder, knee, and left foot pain had fully resolved and had not returned, and a physical examination of these areas were benign. Dr. Cavaliere diagnosed the applicant with right sacroiliac joint dysfunction with surrounding soft tissue pain of the right low back and hip girdle as a result of the accident, and she found that, from a physical perspective, there are no functional and physical limitations.

19Moreover, I find that the applicant has failed to demonstrate that she meets the test for chronic pain as outlined in the Guides. While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including working, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

6. Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

20I am not persuaded by the applicant’s medical evidence or submissions that she meets three out of the six criteria set out in the Guides for establishing chronic pain. While the applicant argues that she meets criteria 4, 5, and 6 above, the evidence does not support the applicant’s position.

21There is insufficient evidence to support that the applicant withdrew from her social milieu and that she failed to restore her pre-injury function after a period of disability. The evidence supports that the applicant continued to socialize with friends and family, to go to church, and to go for walks, albeit in a modified capacity, and she was independent with her self-care tasks, ambulation, and driving. She also returned to work on a full-time basis a few weeks following the accident and worked until September 2020 when she retired at age 65.

22Further, there is insufficient evidence to support that the applicant sustained a psychological impairment as a result of the accident. Although Dr. Perera prescribed the applicant with an anti-depressant on March 3, 2017, there is no information in the clinical note, or in any clinical note, explaining why this medication was prescribed. I note that the applicant was diagnosed with an unrelated adjustment reaction on March 23, 2018. Indeed, the applicant was experiencing stress relating to a landlord/tenant matter and to her daughter and granddaughter moving in with her. Also, while Dr. Karmy diagnosed the applicant with a possible mood disorder with symptoms of passenger and driving anxiety and post-traumatic symptoms, there are no contemporaneous records documenting any accident-related psychological complaints or psychological impairments to support his findings.

23Finally, the applicant did not provide any medical evidence or submissions to support that she was unable to achieve maximal medical recovery within the MIG as a result of a pre-existing condition.

24Accordingly, I find that the applicant has not satisfied her onus to prove, on a balance of probabilities, that her injuries warrant removal from the MIG.

25Having determined that the applicant remains within the MIG, it is unnecessary for me to consider the reasonable and necessary nature of the treatment plans in dispute as they propose goods and services outside the MIG and the $3,500.00 funding limit for a minor injury.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

27For the reasons outlined above, I find that:

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

28The application is dismissed.